Removing the government's immunity from suit in federal cases

Melbourne University Law Review, Dec, 2006 by Graeme Hill

[A citizen cannot sue the government without a 'right to proceed', that is, a law removing the government's immunity from suit. Current High Court doctrine holds that, in cases in federal jurisdiction, a right to proceed derives by implication from the grant of jurisdiction. This article subjects that doctrine to critical analysis. The current doctrine does not appear to give any role to s 78 of the Australian Constitution, which grants power to the Commonwealth Parliament to confer rights to proceed in federal cases. It is suggested that, at most, it could be argued that Australian governments do not retain any immunity from suit in constitutional cases and (possibly) in cases coming within the High Court's constitutionally guaranteed jurisdiction under s 75 of the Australian Constitution. This suggested approach leaves room for the operation of s 78 of the Australian Constitution and also for provisions such as ss 56 and 58 of the Judiciary Act 1903 (Cth).]

CONTENTS

I   Introduction
II  Mewett and British American Tobacco--The Right To Proceed Derives
    from the Grant of Federal Jurisdiction
    A The Previous Approach--Sections 56, 58 and 64 of the Judiciary
      Act
          1 Sections 56 and 58
          2 Section 64
    B Mewett--The Right To Proceed against the Commonwealth
          1 Gummow and Kirby JJ--The Right To Proceed Derives from
            Conferral of Federal Jurisdiction
    C British American Tobacco--The Right To Proceed against the States
          1 McHugh, Gummow and Hayne JJ--The Right To Proceed
            Derives from Conferral of Federal Jurisdiction
          2 Gleeson CJ and Kirby J--The Right To Proceed in
            Constitutional Cases Is Implied from the Australian
            Constitution Itself.
    D Summary of Recent High Court Authorities
III Responding to Mewett and British American Tobacco
       A Critical Analysis of Mewett and British American Tobacco
             1 Commonwealth Immunity in State Courts and Other Federal
               Courts
             2 The Role of Section 78 of the Australian Constitution
             3 Summary of Critical Analysis
       B Preferred Analysis of the Source of the Right To Proceed
             1 Two Separate Factors--Constitutional Review and the High
               Court's Section 75 Jurisdiction
             2 Consequences of Preferred Analysis--Should Ability To
               Sue Depend on Legislation?
             3 Summary of Preferred Analysis
       C Function of Judiciary Act Sections 56 and 58 Following Mewett
             1 The Function of Section 56--Options
             2 Reconciling Section 56 and the Guaranteed Right To
               Proceed
             3 Summary of Effect of Sections 56 and 58
IV Conclusion

I INTRODUCTION

The well-known statement that the Australian Constitution is framed against the assumption of the rule of law (1) is commonly taken to mean two things. First, it is the role of the courts to determine whether government action (both Commonwealth and state) is consistent with the Australian Constitution. This principle can be traced to the American decision of Marbury v Madison. (2) Second, it is the role of the courts to determine whether executive action is lawful more generally. (3) In the case of the Commonwealth, s 75(v) of the Australian Constitution in particular indicates that there is an entrenched level of judicial review for decisions by Commonwealth officers. (4)

However, the lawfulness of government action is not only ensured through proceedings for judicial review. Proceedings raising issues of 'private' law (in the sense of causes of action that can also arise in suits between citizens) (5) are another important check on government action. Gleeson CJ, Gummow, Kirby and Hayne JJ make this point in City of Enfield v Development Assessment Commission:

   Significant questions of public law, including those respecting
   ultra vires activities of public officers and authorities, are
   determined in litigation which does not answer the description
   of judicial review of administrative action by the medium of
   the prerogative writs or statutory regimes such as that provided
   by the Administrative Decisions (Judicial Review) Act 1977 (Cth).
   Examples of other vehicles are the actions for recovery of moneys
   exacted colore officii or paid by mistake, and those for trespass,
   detinue and conversion where the plaintiff challenges the validity
   of the authority relied upon by the defendant as an answer to the
   allegedly tortious acts. (6)

To bring a 'private' law action against the government, a plaintiff requires three things:

1 a cause of action (a legally recognised right against the government); (7)

2 a court with jurisdiction (relevantly, authority to determine the subject matter of the cause of action, and jurisdiction over the defendant); (8) and

3 a right to proceed. (9)

The right to proceed is a law removing the government's immunity from suit. Under the English common law, government immunity from suit was both a defence to the cause of action ('the King can do no wrong'), and a bar to the jurisdiction of courts ('the King cannot be sued in his own courts'). (10) This common law government immunity from suit will be applied in federal cases pursuant to s 80 of the Judiciary Act 1903 (Cth) ('Judiciary Act'), unless that immunity is contrary to the Australian Constitution or to any applicable statutory law conferring a right to proceed. (11)