An extract on #artscape
Mikhail Kalinin 19381946
Nikolay Shvernik 19461953
Kliment Voroshilov 19531960
Leonid Brezhnev 19601964
Anastas Mikoyan 19641965
Nikolai Podgorny 19651977
Leonid Brezhnev (second term) 19771982
Yuri Andropov 19821984
Konstantin Chernenko 19841985
Andrey Gromyko 19851988
Mikhail Gorbachev 1 October 1988 25 May 1989
There is no automatic Crown immunity in Australia and the Australian Constitution does not establish a state of unfettered immunity of the Crown in respect of the States and the Commonwealth. The Constitution of Australia establishes items which the States and the Commonwealth legislate on independently of each other, in practice resulting in the States legislating on some things and the Commonwealth legislating on others. In some circumstances this can create ambiguity as to the applicability of legislation where there is no clearly established Crown immunity. The Australian Constitution does however, in s. 109, declares that, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." Based on this, depending on the context of application and whether a particular statute infringes on the executive powers of the State or the Commonwealth the Crown may or may not be immune from any particular statute.
Many Acts passed in Australia, both at the State or the Federal level, contain a section declaring whether the Act binds the Crown, and, if so, in what respect:
Commonwealth Acts may contain wording similar to: "This Act binds the Crown in each of its capacities," or specify a more restricted application.
State Acts may contain wording similar to: "This Act binds the Crown in right of [the State] and, in so far as the legislative power of the Parliament of [the State] permits, the Crown in all its other capacities."
Whilst there is no ambiguity surrounding the first aspect of this declaration with respect to binding the Crown with respect to the State in question, there have been several cases in respect of the interpretation of the second aspect extending it to the Crown in its other capacities. Rulings by the High Court of Australia on specific matters of conflict between the application of States laws on Commonwealth agencies have provided the interpretation that the Crown in all of its other capacities includes the Commonwealth, therefore if a State Act contains this text then the act may bind the Commonwealth subject to the s. 109 test of inconsistency.
A landmark case which set a precedent for challenging broad Crown immunity and established tests for the applicability of State laws on the Commonwealth was Henderson v Defence Housing Authority in 1997. This case involved the arbitration of a dispute between Mr. Henderson and the Defence Housing Authority (DHA). Mr. Henderson owned a house which the DHA had leased to provide housing to members of the Australian Defence Force (ADF). Under the NSW Residential Tenancies Act 1997, Mr. Henderson sought orders from the Residential Tenancies Tribunal to enter the premises for the purposes of conducting inspections. In response, DHA claimed that as a Commonwealth agency the legislation of NSW did not apply to it and further sought writs of prohibition attempting to restrain Mr. Henderson from pursuing the matter further. Up until this point the Commonwealth and its agencies claimed an unfettered immunity from State legislation and had used s. 109 to justify this position, specifically that the NSW Act was in conflict with the Act which created the DHA and s. 109 of the Constitution applied. Mr. Henderson took the case to the High Court and a panel of 7 justices to arbitrate the matter. By a majority decision of 6:1 the court ruled that the DHA was bound by the NSW Act on the basis that the NSW Act did not limit, deny or restrict the activities of the DHA but sought to regulate them, an important distinction which was further explained in the rulings of several of the justices. It was ruled that the NSW Act was one of general application and therefore the Crown (in respect of the Commonwealth) could not be immune from it, citing other cases in which the same ruling had been made and that it was contrary to the rule of law. As a result of this case, the Commonwealth cannot claim a broad constitutional immunity from State legislation.
In practice, three tests have been developed to determine whether a State law applies to the Commonwealth (and vice versa):
does the law seek to merely regulate the activities of the Commonwealth as opposed to deny, restrict or limit them,
is the State law constructed such that the Act binds the Crown in respect of all of its capacities, and
is there no inconsistency between a State law and a Commonwealth law on the same matter.
If these three tests are satisfied then the Act binds the Crown in respect of the Commonwealth. It is important to note that in Australia there is no clear automatic Crown immunity or lack of it, as such there is a rebuttable presumption that the Crown is not bound by a statute, as noted in Bropho v State of Western Australia. The Crown's immunity may also apply to other parties in certain circumstances, as held in Australian Competition and Consumer Commission v Baxter Healthcare.