...Crown ..II Contd..

The problem of principle in relation to the rule lies in judicial statements of its content and operation which have tended to discount the significance of its character as an aid to statutory construction and to treat it as if it were an inflexible principle which, in the absence of express reference to the Crown, precludes a statute from binding the Crown unless a test of "necessary implication", which "is not easily satisfied", is applied and satisfied (see, e.g., Brisbane City Council v. Groups Projects Pty. Ltd. [1979] HCA 54; (1979) 145 CLR 143, at p 167; Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61). It is true that the phrase "necessary implication" has often been used in this context in the flexible and non-technical sense of requiring little more than that an intention to bind the Crown can be discerned when the words of the statute are construed in the general context of the subject matter, disclosed policy and mischief to be redressed (see, e.g., Roberts v. Ahern [1904] HCA 17; (1904) 1 CLR 406, at p 418; Minister for Works (W.A.) v. Gulson, at pp 358, 367). That use of the phrase "necessary implication" does not, however, conform with the weight of more recent authority which has given the phrase, as used in this context, the character of a formularized test. Thus, it has been authoritatively stated that "necessary implication" means that it "must be manifest, from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound" (see, e.g., Brisbane City Council, at p 167; Province of Bombay, at p 61; Premchand Nathu and Co. Ltd. v. Land Officer (1963) AC 177, at pp 188-189; China Ocean Shipping Co., at pp 199, 221, 240). In determining whether the test of "manifest from the very terms of the statute" is satisfied, it is permissible to take account of the statute's apparent purpose. Even there, however, an eye of the needle test has been applied: it must be possible to affirm "that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound" (Province of Bombay, at p 63, emphasis added; and see, also, Brisbane City Council, at p 169; China Ocean Shipping Co., at p 200). That last-mentioned test is obviously a very stringent one which is likely to be satisfied only in the case of a statute dealing with a special subject which, of its nature, necessarily involves the Crown (e.g. a statute dealing with proceedings for excess of governmental power: cf. Alberta Government Telephones v. Canadian Radio-television and Telecommunications (1989) 61 DLR (4th) 193, at p 233).

 BROPHO v. WESTERN AUSTRALIA [1990] HCA 24; (1990) 171 CLR 1, MASON C.J., DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ.

The common law principle is not in doubt. It is that, as a matter of construction, a statute does not bind the Crown unless an intention that the Crown be bound appears either expressly or by necessary implication from the words of the statute. The test of necessary implication is not easily satisfied. It must be manifest, from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound: Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61 ; and see, generally, Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. Ante, p. 107. . (at p167)

It was also observed in the case of Brisbane City that "The mere legislative prescription in s. 4 of the City of Brisbane Town Planning Act that a Town Plan approved by the Governor-in-Council shall have the force of law cannot result in the Crown being bound by the provisions of a Plan unless such an intention appears from the Act itself. In purporting to bind the Crown the present Plan exceeds the authority conferred on the Governor-in-Council to approve Town Plans under the Act. Subordinate legislation cannot validly extend the operation of an Act to persons or objects (in this case, the Crown) that are not within the scope of the Act itself and such legislation will be ultra vires to the extent that it purports to do so notwithstanding that it is given "the force of law": cf. England v. Penfold (1934) St R Qd 125, at p 147 ; Widgee Shire Council v. Bonney [1907] HCA 11; (1907) 4 CLR 977, at p 985 , per Isaacs J.; Morton v. Union Steamship Co. of New Zealand Ltd. [1951] HCA 42; (1951) 83 CLR 402, at p 410 . (at p169) 

Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143 (1 November 1979)

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