Limiting the Doctrine Of Intergovernmental Immunity

Abstract

The purpose of this paper is to, firstly, explore the way in which the concept of intergovernmental immunity has developed in Australia to the point where it allows a general immunity to the Commonwealth Government's activities from State laws and, secondly, to contend that the immunity should be more limited. It will be argued that, although there is little justification for the Commonwealth Government to have a general implied immunity from State law, there are some instances where a case can be made out for an immunity which is confined in operation. A brief survey of the Canadian and United States position will be made in order to support the claim that a limited immunity might be allowed for activities of the federal government that can be regarded as part of the "executive prerogative" or a "uniquely governmental function". A federal system is one where it can be readily envisaged that one level of government will pass laws which could, potentially, bind the other level of government. The issue then becomes whether or not one government can legislate so as to affect another. Unfortunately, the question was not dealt with in any of the Constitutions of the federations considered by this paper. It was therefore left for the courts to develop principles which would deal with the situation when it inevitably arose. The doctrine of intergovernmental immunity is one of judicial creation. It denies the States' legislative competence to interfere with federal activities even where, as a matter of general statutory interpretation, the State law can be construed as intending to apply to the federal government and its activities. The implication arises, not to protect federal legislation, which will generally prevail over State legislation3, but to protect federal executive activity which has not been conferred with legislative immunity from State laws. This paper will firstly consider the general position of the Crown and the circumstances under which the Crown in right of the Commonwealth can be bound by Commonwealth legislation and by legislation of a State Parliament. With this background it is then possible to examine the High Court's development of the doctrine of intergovernmental immunity and to attempt to identify its limits.