Removing the government's immunity from suit in federal cases

Melbourne University Law Review, Dec, 2006 by Graeme Hill

(d) The Common Law Should Be Modified to the Least Extent Necessary

For these reasons, I would argue that the examples given by the plurality in Mewett only establish a partial inconsistency between the Australian Constitution and the common law of government immunity from suit. That partial inconsistency is not, I would suggest, a sufficient reason to abandon entirely the common law of government immunity from suit. I shall explain why that is so.

The approach of the plurality in Mewett modifies the common law so that it conforms to the Australian Constitution, as the High Court did with the common law of qualified privilege in Lange. (46) (This is at least true of the sovereign's common law immunity from being sued in its own courts--the plurality in Mewett note arguments that the sovereign was never properly regarded as having an immunity from tort.) (47) Although there has been some debate on this question, in my view 'constitutionalising' the common law involves drawing a constitutional implication that limits the judicial power to apply and develop common law doctrines (48)--here, the doctrines of government immunity from suit. Being a constitutional implication, it should be limited to what is 'logically or practically necessary'. (49) Therefore, the fact that the common law doctrines of government immunity from suit run counter to the Australian Constitution in some respects is not a reason to abandon those doctrines altogether. (50) Instead, I would argue, the Australian Constitution only requires a partial modification to the common law of government immunity. I explain below the way in which the common law of government immunity from suit might be modified. (51)

Apart from these issues, the plurality's approach in Mewett raises an issue about the source of the right to proceed against a state in federal cases. There is, of course, no head of federal jurisdiction that applies generally to the states in the way that s 75(iii) does to the Commonwealth. (52) Rather, a private law action against a state will only be in federal jurisdiction if, for example, the action is brought by a resident of another state, (53) the action 'arises under' the Australian Constitution or involves its interpretation, (54) or the action 'arises under' a Commonwealth law. (55)

C British American Tobacco--The Right To Proceed against the States

The High Court considered the source of the right to proceed against a state in British American Tobacco. (56) The specific issue in that case was whether a suit against Western Australia in federal jurisdiction could be subject to the notice requirements in the Crown Suits Act 1947 (WA). That Act confers a right to proceed against the state (s 5), but requires that notice of certain matters be given to the state as soon as practicable, or within three months after the cause of action accrues (s 6). Western Australia argued that noncompliance with s 6 meant that the plaintiff could not bring proceedings against the state to recover money paid pursuant to a constitutionally invalid tax. The plaintiff's claim that the tax was contrary to s 90 of the Australian Constitution (which was not challenged by Western Australia) (57) meant that the proceedings were in federal jurisdiction. All members of the High Court held that s 6 of the Crown Suits Act 1947 (WA) could not validly apply to matters in federal jurisdiction. (58) However, there were different views on the source of the right to proceed against a state in a case in federal jurisdiction.