Hostname: page-component-745bb68f8f-lrblm Total loading time: 0 Render date: 2025-02-04T21:51:02.452Z Has data issue: false hasContentIssue false
  • English
  • Français

Re the Residential Tenancies Tribunal of New South Wales and Henderson; Ex Parte Defence Housing Authority (1997) 190 Clr 410: States' Power to Bind the Commonwealth

Published online by Cambridge University Press:  24 January 2025

Mark Gladman
Mark Gladman*
Affiliation:
Immigration Review Tribunal
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Comment
Information
Federal Law Review , Volume 27 , Issue 1 , March 1999 , pp. 151 - 163
Copyright
Copyright © 1999 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The views expressed in this comment are personal to the author.

References

1 (1997) 190 CLR 410.

2 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Kirby J dissenting.

3 Ibid.

4 Brennan CJ, McHugh J and Gummow J agreed with the reasons of Dawson, Toohey and Gaudron JJ for concluding that the matters dealt with by the Residential Tenancies Act 1987 (NSW) do not fall within the exclusive authority of the Commonwealth under s 52(ii) of the Constitution.

5 (1997) 190 CLR 410 at 436-437.

6 Ibid at 437-438.

7 Kirby J, ibid at 491, upheld the DHA's argument. His Honour considered that s.52(ii) was intended to have a broad and enduring operation.

8 This consequence was recognised by Dawson, Gaudron and Toohey JJ in their judgment: (1997) 190 CLR 410 at 438.

9 Brennan CJ, McHugh J and Gummow J expressed agreement with the reasons of Dawson,Gaudron and Toohey JJ.

10 (1997) 190 CLR 410 at 432-433.

11 Ibid.

12 Defence Housing Authority Act1987 (Cth), s 11.

13 This issue is discussed in N Seddon, Government Contracts: Federal, State and Local (1995) at 121-126.

14 (1997) 190 CLR 410 at 439.

15 Ibid at 427.

16 Ibid at 437.

17 Ibid.

18 (1962) 108 CLR 372.

19 Their Honours said that it may be possible for a statutory body to be created which is so analogous to a department of state that the Commonwealth's immunity from State laws may apply to it: (1997) 190 CLR 410 at 459 per McHugh J and 470 per Gummow J.

20 Ibid at 507-508.

21 (1953) 89 CLR 229.

22 Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372.

23 Dawson, Toohey and Gaudron JJ expressly rejected the broad formulation of Commonwealth immunity from State laws stated by Fullagar J in Bogle. Brennan CJ did not expressly reject the Bogle formulation but such a broad approach is inconsistent with his judgment.

24 In many cases there will also be the question whether the body seeking to invoke the Commonwealth's immunity is entitled to the privileges and immunities possessed by the Crown in right of the Commonwealth. In Henderson the High Court was prepared to decide the case on the assumption that the DHA is or represents the Crown in right of the Commonwealth. The issue of whether a body is entitled to the privileges and immunities possessed by the Crown is beyond the scope of this comment.

25 (1975) 134 CLR 338.

26 Ibid at 379.

27 Ibid at 396.

28 (1940) 63 CLR 278.

29 With the exception of certain taxation matters, the Crown Debts (Priority} Act 1981 (Cth) subjects the Commonwealth to Commonwealth, State and Territory laws with respect to priority.

30 (1997) 190 CLR 410 at 427.

31 Ibid at 443.

32 Ibid at 426.

33 McGinty v Western Australia (1996) 186 CLR 140;Langer v Commonwealth (1996) 186 CLR 302; Muldowney v South Australia (1996) 186 CLR 352;Lange v Australian Broadcasting Corporation (1997) 198 CLR 520. Also see G Williams, “Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform” (1996) 20 MULR 848.

34 (1997) 190 CLR 410 at 459 per McHugh J and at 470 per Gummow J.

35 Ibid at 504.

36 M Crommelin, “Federalism” in P Finn (ed), Essays on Law and Government (vol 1) (1995) at 180.

37 Ibid.

38 Their Honours recognised, however, that the Commonwealth's legislative power to affect the executive capacities of a State is subject to the implied limitation that the Commonwealth cannot make laws which single out a State or States so as to impose a special burden on them or which inhibit or impair the continued existence of the States or their capacity to function.

39 (1997) 190 CLR 410 at 440.

40 J Doyle, “1947 Revisited: The Immunity of the Commonwealth from State law”, in Lindell, G (ed),Future Directions in Australian Constitutional Law (1994) at 62Google Scholar.

41 Ibid.

42 Ibid at 63.

43 This argument is discussed in L Zines, The High Court and the Constitution (4th ed 1997) at 362-363.

44 Lee, H P, “Commonwealth liability to State law—the enigmatic case of Pirrie v Mcfarlane” (1987) 17 FL Rev 133 at 139Google Scholar.