This chapter examines an implied limitation on the legislative powers of the Commonwealth and the States known as the ‘intergovernmental immunities doctrine’. The doctrine arises from the fact that the Australian Constitution establishes a Commonwealth government and a series of separately organised State governments and requires their continued existence as independent or separate entities. The intergovernmental immunities doctrine does not create a general immunity of the Commonwealth from State laws or a general immunity of the States from federal laws. Rather, the intergovernmental immunities doctrines gives rise to (1) State immunity from federal laws which operate to destroy or curtail the continued existence of the States or their capacity to function as governments and (2) Commonwealth immunity from State laws which operate to destroy or curtail the continued existence of the Commonwealth or its capacity to function as a government. Whether a law contravenes the intergovernmental immunities doctrine requires an evaluative assessment of a range of factors.

This Chapter deals with the Court’s decisions on the reach of the National Labor Relations Act, and its revisiting cases involving intergovernmental immunities, including a reconceptualization of them as impicating primarily questions about interpreting federal statutes rather than the Constitution. It also examines some cases raising questions related to those decided in Blaisdell and the Gold Clause Cases, and shows that the Court did not repudiate the restrictive implications of those decisions.

The chapter deals with well-established doctrine dealing with business regulation, including rate regulation, and intergovernmental tax immunity and other issues associated with the structure of government. The cases discussed show a sometimes simple, sometimes complex interplay between the stated doctrine and economic considerations, including concerns about the extent to which regulation nominally in the public interest actually served the narrow interests of specific economic actors. The chapter also examines the novel doctrine of propsective overruling, where formalism sharply conflicted with practicality.