W8: Implied Immunity Notes
sW8: INTERGOVENRMENTAL IMMUNITIES INTRODUCTION Who is the Crown? The Crown as signifying the government. The Monarch Governors and Governors-General State and Cth Executive Governments (Ministers, departments, public servants) Government agencies and instrumentalities (e.g. the Defence Housing Authority) Local Government? (No – a creature of State legislation) Sue v Hill (1999) 199 CLR 462 -the Crown Represents the body politic Representative of the State in international relations The Government Paramount powers of the UK
Immunity from suit: Commonwealth Crown: abolished by s 56 of the Judiciary Act 1903 (Cth) Crown of SA: abolished by s 5 of the Crown Proceedings Act 1992 (SA) Does the Legislation Bind the Crown? Previously, Crown presumed not to be bound by statute unless by: Express words (Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979); or Implication "manifest from the very terms of the statute" and the "purpose of the statute being otherwise wholly frustrated“ (Province of Bombay v Municipal Council [1947] AC 58) Bropho v Western Australia (1990) 171 CLR 1 Mason CJ, Deane, Toohey, Gaudron and McHugh JJ: Legislative intention the key. Strength of presumption depends on circumstances, including content and purpose of provision and identity of entity to which it purports to apply. The position in SA Section 20 Acts Interpretation Act 1915 (SA) (1) … an Act passed after 20 June 1990 will, unless the contrary intention appears (either expressly or by implication), be taken to bind the Crown, but not so as to impose any criminal liability on the Crown. (5) For the purposes of this section— (a) a reference to the Crown extends not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity; (b) a reference to an agent of the Crown extends to an instrumentality, officer or employee of the Crown or a contractor or other person who carries
Immunity from suit: Commonwealth Crown: abolished by s 56 of the Judiciary Act 1903 (Cth) Crown of SA: abolished by s 5 of the Crown Proceedings Act 1992 (SA) Does the Legislation Bind the Crown? Previously, Crown presumed not to be bound by statute unless by: Express words (Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979); or Implication "manifest from the very terms of the statute" and the "purpose of the statute being otherwise wholly frustrated“ (Province of Bombay v Municipal Council [1947] AC 58) Bropho v Western Australia (1990) 171 CLR 1 Mason CJ, Deane, Toohey, Gaudron and McHugh JJ: Legislative intention the key. Strength of presumption depends on circumstances, including content and purpose of provision and identity of entity to which it purports to apply. The position in SA Section 20 Acts Interpretation Act 1915 (SA) (1) … an Act passed after 20 June 1990 will, unless the contrary intention appears (either expressly or by implication), be taken to bind the Crown, but not so as to impose any criminal liability on the Crown. (5) For the purposes of this section— (a) a reference to the Crown extends not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity; (b) a reference to an agent of the Crown extends to an instrumentality, officer or employee of the Crown or a contractor or other person who carries