Crown Immunity- A Discussion and perspective
For many years, opinion on the High Court was divided as to which of two views on the immunity of the Crown from statutes should prevail in a federal context. [See R v Sutton (1908) 5 CLR 789; Pirrie v McFarlane (1925) 36 CLR 170; Minister for Works (WA) v Gulson (1944) 69 CLR 338; Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1. The narrow view, which limits the scope of crown immunity, is that the presumption is confined to the Crown in right of the community whose legislation is in question and does not extend to the Crown in any other capacity. The wide view is that the presumption of immunity serves to shield the Crown in all its capacities, and is not limited to the Crown in right of the enacting legislature.[ Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 201.]
At common law there is a rule of construction by which a statute is presumed not to apply to the Crown, despite general words that would otherwise include it. Such presumption prevails, therefore, subject to its specific rebuttal by the terms of the statute itself or by other statutes, such as the Judiciary Act or a crown proceedings statute, which may, in some cases and to some degree, pick up the primary statute and apply it against the Crown. Like the other prerogative Crown immunities, the immunity from statute has its origins in the English common law. Some early authorities applied the immunity only in protection of the Crown's prerogative rights.[ Initially, the English courts did not rigorously apply the presumption that the Crown was immune from statute. Immunity was granted to the Crown only in those circumstances where its pre-existing prerogative rights and interests might have been prejudiced by the enforcement of legislative provisions against it: Willion v Berkely (1561) 75 ER 339 (KB); see P Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 202. See also the Magdalen College case (1615) 11 Co Rep 66b, 72a (Lord Coke); D Kinley `Crown immunity: A lesson from Australia?' (1990) 53 Modern Law Review 819, 820; J Wolffe `Crown immunity from regulatory statutes' [1988] Public Law 339-346.]
However, in the majority of cases the immunity was applied `whether or not the prerogative was affected and irrespective of the purpose of the statute'[ P Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 202.]From these historical origins, the Privy Council in Bombay v Municipal Corporation of Bombay[Bombay v Municipal Corporation of Bombay [1947] AC 58.] developed an important principle with respect to rebuttal of the immunity.
In this case, the Crown in the right of the Province of Bombay held land in respect of which it claimed to be exempt from the City of Bombay Municipal Act. The Act empowered a City official to lay water mains through `any land whatsoever' in the city, but was silent as to whether it bound the Crown and so applied to the land in question. The Privy Council held that the Act was not binding on the Crown as it did not do so by express words or by `necessary implication', which is present only if `manifest from the very terms of the statute', (`the general rule of construction'). This rule, which until recently was applied widely in Commonwealth countries, meant that unless the purpose of the statute would be `wholly frustrated' if not binding on the Crown, the presumption of crown immunity prevailed. [ L Katz `The test for determining the applicability to the states of federal statutes which do not expressly bind them' (1994) 11 Australian Bar Review 222.]The Bombay decision therefore clearly rejected earlier decisions that rights peculiar to the Crown must be affected for immunity to prevail; the land in question having been acquired from private owners without the exercise of any prerogative power.[Bombay v Municipal Corporation of Bombay [1947] AC 64. See P Hogg Liability of the Crown 2nd ed LBC Ltd North Ryde 1989, 203.]
Rebutting the presumption
The presumption of immunity may be rebutted expressly or by implication. In the intra polity situation, the interpretation of a clause expressly binding the Crown to a statute necessarily entails fewer potential complications than does the inter polity situation. For example, whether a clause states generally a New South Wales Act `binds the Crown', or states in particular that the Act binds `the Crown in the right of the State of NSW', it is clear that NSW, at least, is bound by the Act. Where the binding effect of a statute must be construed by implication, however, such conclusion is often more difficult to determine.[ The uncertainty which arises in the inter polity situation from both general and particular express clauses is discussed in detail below in para 5.220-5.225. Where the binding effect of a statute must be construed by implication, however, complications may arise in both the intra and inter polity situations.]English courts have been very reluctant to find the `necessary implication' that would make a statute applicable to the Crown, when express words have not been used. Occasional deviations from a strict application of the general rule of construction were firmly rejected by the House of Lords in Lord Advocate v Dumbarton District Council,[ Lord Advocate v Dumbarton District Council [1989] 3 WLR 1346.] which firmly reinforced the decision in the Bombay case. [The decision in Lord Advocate v Dumbarton also overruled an exception to Crown immunity, in addition to those set down in the Bombay case, established by the Court of Appeal in Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667. It was in this case that the Crown could also be bound by a statutory provision whose application would not `adversely affect', the Crown in any way.]
As with the superior courts of other Commonwealth jurisdictions, early High Court cases in Australia adopted the general rule of construction from theBombay case and confined the rebuttal of crown immunity within its strictures. Refinements to the rule were nevertheless made, and the test which was for many years applied was as described by the High Court in Commonwealth v Rhind, which held that
in the construction of statutes...the Crown is not included in the operation of a statute unless by express words or by necessary implication. Where the Crown is not expressly mentioned, the implication will be found, if at all, by consideration of the subject matter and of the terms of the particular statute.[ Commonwealth v Rhind (1966) 119 CLR 584, 598.]
Consideration of the subject matter of a statute, though not sufficient alone to bind the Crown in Rhind's case, was thus incorporated into the reasoning of the courts in such matters. This signified a departure from the strict interpretation of crown immunity from statute created in the Bombay case and developed in the United Kingdom. The High Court in Bropho subsequently incorporated the interpretation of subject matter into a revised general rule of construction, which replaced the Bombay principle and revolutionised the law regarding crown immunity from statute in Australia. The effect was that the test for determining whether a statute impliedly binds the Crown became significantly easier to satisfy.[ L Katz `The test for determining the applicability to the states of federal statutes which do not expressly bind them' (1994) 11 Australian Bar Review 222.]In the leading judgment of the High Court, the view was expressed that, in the interests of brevity of legislation and as an aid to statutory construction, it was appropriate that there be a presumption that general words in a statutory provision either do or do not bind the Crown. However, it was held that the `necessary implication' might be found in the `subject matter and disclosed purpose and policy' of the Act,] Bropho v Western Australia (1990) 171 CLR 1, 21-22 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).] and the overall operation of the Act in relation to its subject matter, and no longer necessarily in the manifest terms of the Act itself. The general rule of statutory construction was still to be applied, but `if, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail'.[ id, 23 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).]
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