Removing the government's immunity from suit in federal cases

Melbourne University Law Review, Dec, 2006 by Graeme Hill

Gummow and Kirby JJ's judgment in Mewett referred generally to the matters coming within the High Court's original jurisdiction under s 75 of the Australian Constitution. (74) The joint judgment in British American Tobacco extended this principle to constitutional matters. (75) These conclusions appear to depend on different underlying factors. In Mewett, the significant factor would seem to be that the High Court's jurisdiction over s 75 matters is conferred by the Australian Constitution itself (rather than Commonwealth legislation). For this reason, it seems, the High Court's s 75 jurisdiction could not be defeated by a claim of government immunity. In British American Tobacco, the significant factor was that it would be contrary to Marbury v Madison for a government defendant to rely on an immunity from suit to resist a constitutional challenge to the validity of government action. I would argue, however, that constitutional matters are the only category of federal jurisdiction where the subject matter, in itself, is incompatible with a claim of government immunity from suit.

2 The Role of Section 78 of the Australian Constitution

The second main criticism of the plurality's approach in Mewett and British American Tobacco is that it does not leave much scope for the express power to confer rights to proceed contained in s 78 of the Australian Constitution.

(a) Mewett Analysis of the Role of Section 78

In Mewett, the plurality stated that its interpretation of s 75(iii) of the Australian Constitution 'still leaves much scope' (76) for the power conferred by s 78 of the Constitution, because the Commonwealth can confer rights to proceed in matters arising under a Commonwealth law (s 76(ii)). Clearly, this limited interpretation is not supported by the text of s 78--in its terms, s 78 grants the Commonwealth power to confer rights to proceed in respect of any of the matters set out in ss 75 and 76 of the Australian Constitution. (77) In addition, the plurality do not explain why the Commonwealth's power to confer jurisdiction under s 77 of the Australian Constitution is different for s 75(iii) matters than for s 76(ii) matters. As the minority point out, if the conferral of s 75(iii) jurisdiction, by itself, removes Commonwealth immunity from suit, why would not the same be true of the conferral of s 76(ii) jurisdiction? (78) This is particularly so in state courts, given that the conferral of jurisdiction on those courts to hear these different matters is done by a single provision, s 39(2) of the Judiciary Act.

(b) British American Tobacco Analysis of the Role of Section 78

In British American Tobacco, the joint judgment states that the role of s 78 of the Australian Constitution is to confer rights to proceed when the Commonwealth confers jurisdiction over any of the matters set out in s 76. (79) (Mewett had only given s 76(ii) as an example of a head of federal jurisdiction where s 78 still had some work to do.) (80) At the same time, however, the joint judgment in British American Tobacco concludes that the conferral of s 76(i) jurisdiction on a state court, by necessary implication, removes a state's immunity from suit. According to the joint judgment, a Commonwealth law conferring jurisdiction over constitutional matters, although supported by ss 76(i) and 77(iii) of the Australian Constitution, 'may also be seen as an exercise of the power under s 78 [of the Constitution] to confer rights to proceed against the State in respect of a matter within the limits of the judicial power'. (81) It seems, therefore, that the power conferred by s 78 of the Australian Constitution overlaps at least partially, if not wholly, with the Commonwealth's powers to confer federal jurisdiction. (82)