Removing the government's immunity from suit in federal cases

Melbourne University Law Review, Dec, 2006 by Graeme Hill

This article considers the source of the right to proceed against the Commonwealth and the states in cases in federal jurisdiction--in particular, whether this right is derived by implication from the Australian Constitution or from Commonwealth legislation enacted under s 78 of the Constitution. (12)

Section 78 of the Australian Constitution provides:

   The Parliament may make laws conferring rights to proceed against
   the Commonwealth or a State in respect of matters within the limits
   of the judicial power [of the Commonwealth].

On its face, s 78 authorises the Commonwealth Parliament to remove the Commonwealth and the states' immunity from suit for cases in federal jurisdiction. As is well-known, most Australian colonies had legislated prior to federation to remove their immunity from suit. (13) The terms of s 78 of the Australian Constitution indicate that a right to proceed is separate from, and in addition to, other requirements for bringing a suit in federal jurisdiction. Specifically, it might be thought that, without a right to proceed, a plaintiff could not successfully sue the Commonwealth or a state in federal jurisdiction, even though the plaintiff's claim had been brought in a court with jurisdiction over the subject matter of the claim.

However, the High Court's current approach ties the removal of government immunity from suit in federal cases to the conferral of federal jurisdiction. For example, there is said to be a right to proceed against the Commonwealth, in all courts and in all cases, deriving from s 75(iii) of the Australian Constitution. (14) I argue that this approach is flawed, and that it would be preferable to consider two factors separately: (1) the need for courts to supervise the constitutional validity of government action; and (2) the special status of the High Court's jurisdiction guaranteed by s 75 of the Australian Constitution.

II MEWETT AND BRITISH AMERICAN TOBACCO--THE RIGHT TO PROCEED DERIVES FROM THE GRANT OF FEDERAL JURISDICTION

The High Court's current approach is set out in Commonwealth v Mewett (15) (concerning a claim in tort against the Commonwealth) and British American Tobacco Australia Ltd v Western Australia (16) (concerning a claim against a state to recover amounts paid on account of a constitutionally invalid tax). In both cases, a plurality of the Court held that the plaintiff's right to proceed against the relevant government derived from the conferral of federal jurisdiction.

A The Previous Approach--Sections 56, 58 and 64 of the Judiciary Act

Before Mewett and British American Tobacco, the weight of authority suggested that the right to proceed against the Commonwealth or a state in federal jurisdiction derived from provisions in the Judiciary Act. There was, however, some debate as to which was the relevant provision.

1 Sections 56 and 58

Several provisions in the Judiciary Act seem to confer express rights to proceed, particularly s 56 (for claims against the Commonwealth) and s 58 (for claims against a state). (17) Section 56(1) provides: