Presumption that Statute does not bind the crown

A statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by "necessary implication" in the limited and stringent sense. 


If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail. 


That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context.


For so long as "the Crown" encompassed little more than the Sovereign, his or her direct representatives and the basic organs of government, there may well have been convincing reasons for an assumption that a legislative intent that general statutory provisions should bind the Crown and those who represent it would be either stated in express terms or made "manifest from the very terms of the statute". The basis of an assumption to that effect lay in a mixture of considerations: regard for the dignity and majesty of the Crown; concern to ensure that any proposed statutory derogation from the authority of the Crown was made plain in the legislative provisions submitted for the royal assent; and, the general proposition that, since laws are made by rulers for subjects, a general description of those bound by a statute is not to be read as including the Crown (see The Attorney-General v. Donaldson (1842) 10 M and W 117, at pp 123-124 [1842] EngR 747; (152 ER 406, at pp 408-409); British Broadcasting Corporation v. Johns, at p 78). Thus, Lord Campbell C.J. could, in Moore v. Smith (1859) 5 Jur NS 892, at p 893, speak of the rule of construction as:

"... a sacred maxim that the Crown is not bound by an act of
Parliament, unless it is quite clear, from the language
employed, that the Legislature contemplated including the
Crown, and her Majesty, in giving her royal assent, assented
that the Crown should be bound, and was fully aware that she
was giving her assent to be subject to the provisions of the
statute."

What is Crown
As Diplock L.J. commented in British Broadcasting Corporation v. Johns (1965) Ch 32, at pp 78-79:

"The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints
on persons or in respect of property unless the statute says so expressly or by necessary implication. ... (T)he executive functions of sovereignty are of necessity performed through the agency of persons other than the Queen
herself. Such persons may be natural persons or, as has been increasingly the tendency over the last hundred years, fictitious persons - corporations."

 The rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown was initially confined to provisions which would have derogated from traditional prerogative rights (see, e.g., Street, "The Effect of Statutes upon the Rights and Liabilities of the Crown", University of Toronto Law Journal, vol.7 (1948), 357; Hogg, Liability of the Crown, 2nd ed. (1989), at pp 202, 242-243) or, alternatively, was said to be subject to very broad exceptions in that it did not apply if the intention of the statute was to provide "for the public good", or "the advancement of religion and justice", or "to give a remedy against a wrong" or to prevent fraud or "tortious usurpation" (see, e.g., Sydney Harbour Trust Commissioners v. Ryan [1911] HCA 64; (1911) 13 CLR 358, at pp 365-366). It has, however, been clearly accepted in more recent cases in the Court that the rule is of general application (see, in particular, The Commonwealth v. Rhind [1966] HCA 83; (1966) 119 CLR 584, at p 598; Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. (1979) [1979] HCA 15; 145 CLR 107; China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172; and see also, as to the United Kingdom, Lord Advocate v. Dumbarton District Council (1989) 3 WLR 1346, at p 1366; as to the United States of America, Corpus Juris Secundum, vol.82, p 554; and cf., as to Canada, Interpretation Act, RSC 1985, c.I-21, s.17 and the discussion in the judgment of Stephen J. in the China Ocean Shipping Co. Case, at pp 216-221). In Madras Electric Supply Corporation Ltd. v. Boarland (1955) AC 667, at p 694, Lord Keith of Avonholm expressed the view that the rule is not "just a rule of statutory construction" but reflects a prerogative power of the Crown to override "words in a statute capable of applying" to it. This notion of a prerogative to override the provisions of a duly enacted statute was rejected by Lord MacDermott (at p 685) and Lord Reid (at pp 687-688) in Madras and, as Lord Reid intimated (at p 687), is quite contrary to the whole course of British constitutional development since 1688 (see, also, A. v. Hayden [1984] HCA 67;(1984) 156 CLR 532, at pp 580-581, and Lord Advocate v. Dumbarton District Council, at pp 1357-1360. It certainly has no place in the law of this country where it has been consistently accepted that the rule that legislative provisions worded in general terms are prima facie inapplicable to the Crown is a rule of statutory construction which identifies a presumption to be applied in ascertaining the relevant legislative intent (see, e.g., R. v. Sutton [1908] HCA 26; (1908) 5 CLR 789, at pp 795, 800, 805-806; Minister for Works (W.A.) v. Gulson [1944] HCA 27; (1944) 69 CLR 338, at pp 347 and 359). Being a judge-made rule of construction, the presumption which the rule embodies may be supplemented, modified or reversed by legislative provision (see, e.g., Acts Interpretation Act 1931 (Tas.), s.6(6); The Acts Interpretation Act of 1954 (Q.), s.13; Acts Interpretation Act 1924 (N.Z.), s.5(k); Interpretation Act, RSBC 1979 (British Columbia), c.206, s.14 ; Interpretation Act 1981 (Prince Edward Island), c.18, s.14). 



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


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