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The Doctrine of Immunity of Instrumentalities in The United States and Australia: A Comparative Analysis
The Doctrine of Immunity of Instrumentalities in The United States and Australia: A Comparative Analysis
I INTRODUCTION
The High Court has often considered the extent to which governments in
the Australian federal system, State and Commonwealth, are immune from
regulation by each other. In doing so, the Court has repeatedly paid close
attention to the approach for the time being of the Supreme Court of the
United States to similar problems. 1 Yet even if, as has been suggested, 2
the High Court has never regarded the Supreme Court's approach as
influential of itself, but as merely providing support for conclusions inde-
pendently reached, a comparison of the doctrines formulated by the two
Courts is useful. A governmental claim to immunity raises analogous issues
for each Court: it is a direct clash between the components of the federal
structure, with the court acting as arbiter and facing sharply focussed
questions as to the nature of federalism and, more particularly, its own
role within the structure. A comparative analysis may not only permit an
evaluation of the respective doctrines in the field of governmental immu-
nities, but may also shed some general light upon the institution of judicial
review in Australia.
The aim of this paper is to trace the fluctuating fortunes of the implied
immunity doctrine in both countries and, in particular, to examine critically
the foundations of the present Australian doctrine in view of the American
experience. It will be contended that the High Court has, for the most part,
seemed not to appreciate fully the extent of and the reasons for the pro-
gressive minimization of the doctrine in the United States. The Supreme
Court has reconsidered the legitimacy of actively invalidating legislation
on the basis of preconceived notions as to the character of federalism and
has, in general, closely examined the practical operation of the doctrine.
The High Court, in the other hand, has revived the use of implications to
* LL.M. (Yale), LL.B. (Hons) (Melb.); Barrister and Solicitor of the Supreme Court
of Victoria.
1 Compare the judgments of Starke and Dixon n. in Melbourne Corp. v. The
CommonweaZ.th (the State Banking Case) (1947) 74 C.L.R. 31, 70-75, 80-81, with that
of Isaacs J. III Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd
(the Engineers' Case)(I920) 28 C.L.R. 129, 146-48. See infra p. 41, n. 45; p. 59, nn. 31-38.
For a general survey of the use of Supreme Court precedents in the High Court
see Sawer, 'The Supreme Court and the High Court of Australia' (1957) 6 Jour-
nal of Public Law 482, 502-07. Australian constitutional decisions have had virtually
no influence on the Supreme Court, largely because of that Court's huge reservoir
of constitutional precedent. Note, however, Frankfurter J.'s references (somewhat
inaccurate) to Australian decisions designed to support his view that the scope of
implied governmental immunity should be narrowed. Graves v. New York ex rei.
O'Keefe (1939) 306 V.S. 466, 491; New York v. United States (1946) 326 V.S. 572,
583.
2 Sawer, 'The Supreme Court and the High Court of Australia' (1957) 6 Journal
of Public Law 482, 486.
15
16 Melbourne University Law Review [VOLUME 7
justify the striking down of legislation, without, it is respectfully submitted,
always analysing thoroughly the basis of the implications drawn nor their
impact upon the workings of government.
to tax the means of the general government be conceded, the declaration that the
constitution and the laws made in pursuance thereof, shall be the supreme law of
the land, is empty and unmeaning declamation'. Ibid. 433.
26 Ibid. 426, 427, 429, 431, 432, 433, 434, 436.
27 Roberts, The Court and the Constitution (1951). Author's italics.
28 Infra p. 21. 29 (1829) 2 Pet. 449.
30 See the dissenting judgment of Thompson J., ibid. 479-80.
31 Ibid. 449, 466-69. 'If the right to impose the tax exists, it is a right which in its
nature knows no limits.' Ibid. 466.
32 (1819) 4 Wheat. 316,436.
33 Several cases in the 1860s applied the principle of Weston v. Charleston. See
Bank of Commerce v. New York City (1863) 2 Black 620; Ban~ ~ax Case (1864) 2
Wall. 200; Bank v. Supervisors (1868) 7 Wall. 26. In 1868 the pnnclple was extended
to certificates of indebtedness issued to government contractors; The Bank v. The
Mayor (1868) 7 Wall. 16.
34. (1842) 16 Pet. 435.
MAy 1969] Immunity of Instrumentalities 21
its application to a captain of a United States revenue-cutter because it
interfered with a means by which the United States executed its powers to
levy taxes and regulate commerce. An alternative ground for the holding
was that the tax diminishing the remuneration of the officer was inconsistent
with the law establishing the remuneration. This ground is of course not
without interest in the Australian context.
The doctrine at this stage, although broad, was confined to shielding
federal instrumentalities from potential destruction at the hands of the
States. In each of the three cases the supremacy of the United States had
been stressed as a vital factor in the granting of the immunity; indeed, in
Dobbins an alternative ground for the decision was the inconsistency of the
State tax with federal legislation. In McCulloch Marshall c.J. had expressly
differentiated between State taxation of a federal bank and federal taxation
of a State bank on the ground that in the latter case the people of all
States and the States themselves were represented in Congress, which
therefore, was merely taxing its own 'constituent'. On the other hand, a
State, when it taxed a federal instrumentality, was taxing an institution
created not merely by its own citizens but by others as well for the benefit
of all of them. 35 Notwithstanding this, Collector v. Day 36 'applied' Dobbins
in order to strike down a general federal income tax levied on the salary
of a State judge. To the argument that the supremacy of the federal
government was a key factor in the earlier decisions, Nelson J. replied
that the federal government was supreme only within its appropriate
sphere, while the States were just as supreme within their 'reserved sphere'.
And since the power to tax was the power to destroy in each case, the
two governments were in a position of equality as to the immunity of
their respective instrumentalities from taxation by the other government.
The immunity doctrine was now reciprocal, although this was not achieved
without a telling dissent from Bradley J. who observed, with much force,
that '[n]o man ceases to be a citizen of the United States by being an officer
under the State government'.37
The immunity Qf CQntractQrs had never gQne as far as was IQgically PQS-
sible because Qf the hQlding in Metcalf & Eddy v. Mitchell 60 that a State
gQvernment CQntractQr was subject to' federal incQme tax. AlthQugh a case
Qf federal taxatiQn Qf a State CQntractQr, the reasQning Qf StQne J., to' the
58 PoweIl, 'The Waning of Intergovernmental Tax Immunities' (1945) 58 Harvard
Law Review 633.
59 The effect of some decisions was that the executive arm of the federal govern-
ment, in addition to Congress, had power in certain circumstances to decide the
issue of immunity. But the States could overcome this by aptly worded legislation.
Infra p. 27, nn. 69-70. As to Congressional power to grant and withhold immunity
see Carson v. Roane-Anderson Co. (1952) 342 V.S. 232 (upholding immunity accorded
to federal contractors by Atomic Energy Act); lames v. Dravo Contracting Co.
(1937) 302 V.S. 134, 161; Federal Land Bank v. Crosland (1923) 261 V.S. 374;
Pittman v. H.O.L.C. (1939) 308 V.S. 21.
60 (1926) 269 V.S. 514. Supra n. 50.
26 Melbourne University Law Review [VOLUME 7
effect that a non-discriminatory tax could not be said to impair govern-
mental functions significantly merely because it, like all taxation, increased
the cost of government, .foreshadowed and directly influenced the later
cases dealing with federal contractors.
lames v. Dravo Contracting CO. 61 began the general assault on the gov-
ernmerit contractor's immunity by upholding the application of a State
gross receipts tax to a federal contractor. The reasoning of the Metcalf
Case was accepted and the earlier cases 62 sustaining the immunity were in
effect overruled as 'limited to their particular facts'. The Court accepted
that the implied limits upon State taxing power had to be given a practical
construction so as not to impair seriously the ability to raise revenue and
the opinion expressly adopted the proposition that it was not necessarily a
ground of invalidity that a tax increased governmental costS. 63 The old
argument that the power to levy a light tax was the power to levy an
oppressive one, was countered by reference to the congressional power to
immunize its agencies and contractors from State taxation. 64 The Court's
reluctance to interfere with State taxing powers was taken a step further in
Alabama v. King & Boozer/ s which upheld a State sales tax as applied to
the purchase of lumber by a contractor erecting an army camp pursuant to
a 'cost-plus' contract. The 'legal incidence' of the tax. it was said, was on
the person undertaking contractual liability for the price-the contractor-
and it was not to the point that the economic burden was passed on to the
federal government by contractual arrangement. 66 As in the Dravo Case
weight was placed upon the failure of Congress to exercise its power to
grant immunity.61
At one time it appeared that the executive arm of the federal govern-
ment could decide the issue of immunity by providing in, say, a building
contract that purchases of all materials should be made by the contractor
as agent for the government. title to the materials 10 pass directly to the
government. In such a case it was held that the legal incidence of a sales
tax was 'on' the United States and therefore invalid, although it was the
precise economic equivalent of the tax in King & Boozer. 68 However. a
compliant Supreme Court permitted the States to overcome this obstacle
to their taxing powers by measures that taxed the 'use' by federal contrac-
tors of government property. Thus, where Tennessee levied a tax on a com-
pany's 'privilege' to engage in the business of petrol storage. at the rate of
61 (1937) 302 U.S. 134. The United States participated as amicus curiae, urging
rejection of the contractor's claim to immunity. Powell, 'The Waning of Inter-
governmental Tax Immunities' (1945) 58 Harvard. Law Review 633, 637-40.
62 Cases cited supra n. 42. 63 302 U.S. 134, 160.
64 Ibid. 161.
65 (1941) 314 U.S. 1. In this case the United States argued for the immunity of
the contractor. 66 Ibid. 8-9.
61 Ibid. 8. A companion case to King & Boozer upheld a use tax on a government
contractor in respect of materials used by him in the performance of his cost plus
contract, as the tax was 'on' the contractor, not the United States. Curry v. United
States (1941) 314 U.S. 14.
68 Kern Limerick Inc. v. Scurlock (1954) 347 U.S. 110 (purchase of materials for
construction of ammunition depot).
MAy 1969] Immunity of InstrumentaZities 27
six cents per gallon stored, the tax was upheld, notwithstanding that the
company was storing government-owned petrol under a contract which
required the federal government to bear all State taxes. 69 Indeed, the
Supreme Court was actually prepared to correct a legislature's drafting
error in levying a tax upon government property instead of upon the
privilege of possessing it.70 The conclusion to be drawn from these cases is
that the presence of an independent contractor in a government transaction
permits the States to assess, in substance, exactly the same tax on the gov-
ernment-contractor transaction as if no government were involved. 71
The rule that a State cannot tax the property or activities of the United
States or its agencies has survived the demise of the broad doctrine of im-
munity of instrumentalities. It is quite clear, as has been discussed, that the
remaining immunity is of no real consequence where the federal govern-
ment permits its property to be placed in the possession of private parties. 76
The presence of such a party effectively permits the States to tax the pro-
perty of the United States unless Congress itself confers immunity or the
tax is discriminatory;77 the one case that might have proved an obstacle
to this has been distinguished out of existence. 78 Thus the United States
is effectively protected only when it occupies its own land or performs its
own tasks.
The rationale of the remaining immunity clearly cannot be a judicial
desire to protect the federal government from the economic burden of
general, non-discriminatory taxation. Such a hypothesis is inconsistent with
the Supreme Court's acceptance of taxes which, although formerly levied
upon private parties, are borne by the United States and with its emphasis
upon congressional power to insulate the instrumentalities of government
against taxation. There is certainly no economic reason why the federal
government more urgently requires protection from the Supreme Court
when it occupies land and performs activities itself, than when it utilizes
the services of private parties. Possibly the immunity may be justified as
resting upon a comity principle-it would not be consonant with the
74 (1939) 306 V.S. 466 (State income tax upon salary of employee of Federal
instrumentality, Home Owners' Loan Corporation).
75 Ibid. 487. It is interesting to note that the concurring opinion of Frankfurter J.
referred to the 'complete rejection' of the immunity doctrine in Australia in support
for his views. Ibid. 491.
76 Cf. United States v. Township of Muskegan (1958) 355 V.S. 484 (company
using government land pursuant to a mere permit in performance of cost-plus
contract held subject to use tax at rates based on full value of property).
77 A State use tax was held invalid as discriminatory in Phillips v. Chemical Co. v.
Independent School Dist. (1960) 361 V.S. 376 on the ground that lessees of federal
land were assessed on the full value of the premises while lessees of other exempt
property were assessed on the value of their leasehold interest.
78 In United States v. Allegheny County (1944) 322 V.S. 174, an ad valorem tax
assessed upon a government contractor, based upon the full value of government
owned machinery leased by him, was struck down as being, in substance, a tax on
the property of the Vnited States. Powell, 'The Waning of Intergovernmental Tax
Immunities' (1945) 58 Harvard Law Review 633, 772-87. Later cases distinguished
Allegheny by merely asserting that the tax was different, being 'on' government
property. Since that was the very issue before the Court in those cases the distinction
was hardly satisfactory. Esso Standard Oil Co. v. Evans (1953) 345 V.S. 495, 499;
United States v. City of Detroit (1958) 355 V.S. 466, 471; City of Detroit v. Murray
Corp. (1958) 355 V.S. 489, 494-95. In the last case Frankfurter J. in dissent con-
vincingly demonstrated the substantial equivalence of the tax there with that in
Allegheny.
MAy 1969] Immunity of Instrumentalities 29
dignity of the national government to require it to pay taxes levied upon
its property or governmental operations. However, since the immunity
constitutes the remnants of a once-broad doctrine, the basis of which has
been discarded, it is not surprising that no modem case offers a satisfac-
tory explanation for its survival. 79
19 This analysis is concerned only with these cases where immunity. is founded on
implications drawn from the Constitution. Certain cases that look as though they
might be implied immunity cases in fact depend upon specific constitutional pro-
visions, e.g. Art. I, §8 c1.17, which provides that 'Congress shall have Power . . .
To exercise exclusive Legislation in all Cases whatsoever . . . over all places pur-
chased by the Consent of the Legislature of the State in which the Same shall be,
for the Erection of Forts, Magazines, Arsenals, dock·yards, and other needful
Buildings .. .' See Humble Pipe Line Co. v. Waggoner (1964) 376 V.S. 369 (Louisiana
ad valorem tax on privately owned property-drilling equipment-situated on an
Air Force base, struck down on the ground that the Vnited States had acquired
exclusive jurisdiction of the land on which the base stood); Paul v. United States
(1963) 371 V.S. 245, 263·70. Cf. Polar Ice Cream & Creamery Co. v. Andrews (1964)
376 V.S. 361 (Florida imposed a tax of 0.15 cents per gallon on milk distributed
by a milk wholesaler. Held, the tax could validly apply to milk sold to federal
enclaves over which the Vnited States had exclusive jurisdiction, for the tax was
levied upon the processing of milk in Florida, not upon the sale in the federal
enclaves).
00 E.g. Helvering v. Mountain Producers' Corp. (1938) 303 V.S. 376 (permitting
taxation of income of lessees of government owned land, State or federal); lames
v. Dravo Contracting Co. (1937) 302 V.S. 134 (permitting taxation of State and
Federal contractors).
81 Helvering v. Gerhardt (1938) 304 V.S. 405, 416-17.
30 Melbourne University Law Review [VOLUME 7
state or those who serve it, were to be set aside as an infringement of state
sovereignty, it is evident that a restriction upon national power, devised only
as a shield to protect the states from curtailment of the essential operations
of government which they have exercised from the beginning, would become
a ready means for striking down the taxing power of the nation. 82
38 The original Justices were Griffith C.J., Barton and O'Connor H., all of whom
had had extensive political experience. In 1906 Isaacs and Higgins H. were added
to the Court. In 1912 O'Connor J. died and he was replaced by Gavan Duffy J. At
the same time Powers and Rich H. were added to the Court. None of these three
had had any political experience. Sawer, Australian Federal Politics and Law 1901-
1929 (1956) 106. Griffith C.J. retired in 1919 and was replaced as Chief Justice by
Adrian Knox. Barton J. died in 1920 and was replaced by Starke J. Thus, at the
time of the Engineers' Case, none of the original Justices who had formulated the
implied immunity doctrine remained on the Court. Neither Isaacs J nor Higgins J. had
ever been favourably disposed to the doctrine or to the assumptions which provided
its basis and they were instrumental in introducing the qualifications restricting the
doctrine prior to 1920. For a strong statement of the views of Higgins J., rejecting the
applicability of McCulloch v. Maryland to Australia, see Baxter v. Commissioners
of Taxation (N.S.W.) (1907) 4 C.L.R. 1087. 1164-65.
39 Wheat Lumpers' Case (1919) 26 C.L.R. 460. Although all the judgments accepted
the immunity doctrine, they also (with the exception of Barton J.) stressed the trad-
ing-essential functions dichotomy which clearly could be used to limit the doctrine
in the future.
40 Menzies, Central Power in the Australian Commonwealth (1967).
41 Sawer, Australian Federal Politics and Law 1901-1929 (1956) 329.
42 Knox C.J. Rich and Starke H. joined in the jUdgment. Higgins J. delivered a
separate judgment reaching the same conclusion, but omitting some of the excesses
of the judgment of Isaacs J. Gavan Duffy J. dissented.
MAy 1969] Immunity of Instrumentalities 41
answered the question affirmatively. The judgment was 'one of the worst
written and organized in Australian judicial history. Isaacs was given to
rhetoric and repetition, and here he gave these habits full reign':t3 But
every argument in the judgment, whether well founded or not, was de-
signed to advance the cause of broadening the competence of the national
Parliament.
Validly enough, the judgment pointed out that the principle of D'Emden
v. Pedder, as enunciated in that case, gave no solace to the States, for it
merely forbade State interference with the exercise of Commonwealth
power. The later cases creating a reciprocal doctrine depended,
In an excess typical of the dogmatism of Isaacs J., he went on, not merely
to reject the American cases relating to the immunity doctrine, but to dis-
count all American authorities as not affording a 'secure basis' for inter-
preting the Australian Constitution except 'secondary and subsidiary'
matters. His justification for this chauvinistic attitude was the 'radical'
difference between the two constitutional structures. In particular, he
pointed to the 'cardinal features' of responsible government and the common
sovereignty of the Crown found in the Australian, but not the United States
Constitution. 45 As has been pointed out by Sir John Latham,46 it is difficult
to discern how these descriptive differences could have any meaningful
bearing as questions of constitutional interpretation. On the other hand
Professor Sawer has said that
The problem with Sawer's analysis is that, while one may agree with the
conclusion as to the proper role of the Court, it attributes to Isaacs J. an
argument that was not made in his judgmentY In any event it is not easy
to see how Professor Sawer's responsible government argument (if he is
43 Sawer, Australian Federalism in the Courts (1967) 130. For a full analysis of
Isaacs' judicial technique see Cowen, lsaac lsaacs (1967) Chs. 6-7.
44 (1920) 28 C.L.R. 129, 145.
45 I bid. 146.
46 Latham, 'Interpreting the Constitution' in Else-Mitchell, Essays on the Australian
Constitution (2nd ed. 1961) 28-29.
47 Sawer, 'State Statutes and the Commonwealth' (1962) 1 Tasmania University
Law Review 580, 585.
48 Cowen, lsaac lsaacs (1967) 161-62.
42 Melbourne University Law Review [VOLUME 7
51 Cowen, Isaac Isaacs (1967) 152. See generally Ch.7 and especially Isaac J.'s views
on the scope of the defence power (Farey v. Burvett (1916) 21 C.L.R. 433) and his
treatment of the scope of s.92, which he regarded as inapplicable to the Common-
wealth (W. & A. McArthur Ltd v. State of Queensland (1920) 28 C.L.R. 530) but
severely restrictive of State competence (Duncan v. State of Queensland (1916) 22
C.L.R. 556 (dissenting judgment).
44 Melbourne University Law Review [VOLUME 7
some happened to be employed by the State. 52 Of course, Higgins J. was
merely making explicit what was implied in the majority judgment. But
explicitness has the advantage of revealing the true basis of the reasoning
in constitutional litigation, rather than permitting it to remain hidden
behind the legalistic guise of 'interpreting the text of the document'.
Before commencing his detailed analysis in the Engineers' Case, Isaacs J.
did insert a warning as to the limits of the case. The key passage in this
warning stated that
[i]f any future case concerning the prerogative in the broader sense of
arising under some other Commonwealth power-for instance taxation-
the extent of that power should come under consideration . . . the special
nature of the power may have to be taken into account.53
It is not at all easy to see what Isaacs J. had in mind in this passage. He had
previously stated that the case did not involve prerogative power in the
sense of the Crown's inherent non-statutory power. He was probably
making a reference to the prerogative to put aside arguments in the case
based on the Crown prerogative, but it is not clear that he intended an
exception to the general principle he was stating. The reference to the
taxation power was probably no more than an example of a Common-
wealth power that was subject to express limits elsewhere in the Consti-
tution 54 and for that reason could not be given unlimited scope. However,
the apparent qualification has provided a peg upon which those opposed
to the doctrine of the Engineers' Case have been able to hang their attack.
All the State has done in this case is to regulate the use of motor-cars and re-
quire to all citizens to observe provisions for the preservation of public safety
and security. The Act is directed to acts of a purely local character, and its
object is peculiarly within the authority of the State. It is not aimed particu-
larly at the Defence Forces ... nor is it in opposition to any express provision
of the laws of the Commonwealth . . . [T]he Commonwealth has ample
legislative power to maintain its Forces free from any inconvenient legislation
of the States. 60
This case achieves a satisfactory accommodation of the interests of Com-
monwealth and States. Whatever the position regarding Commonwealth
legislation applicable to the States, there is no justification for the High
Court protecting the Commonwealth from State regulation by a doctrine
of constitutional dimensions when the Commonwealth is perfectly able to
protect itself. The Commonwealth Parliament is the body equipped to
make the determination as to whether the State regulation amounts to
undue control-and it has the power to enforce its determination.
Had it been intended that the State railways should be subjected to the
Commonwealth power, Mr Menzies argued, they would have been specific-
ally mentioned in the section. Nevertheless it was held that the general
rule requiring Commonwealth powers to be interpreted without regard to
implications in favour of State instrumentalities was not displaced.62&
The A.R.U. Case was, however, significant for the emergence of a
potential qualification to the Engineers' Case doctrine and a subtle re-
statement of the doctrine by Dixon J., newly appointed to the Bench, which
foreshadowed later, more direct attacks. The Railways Commissioners
argued that they could not be bound by an award, since they lacked power
to pay the wages awarded themselves, being dependent upon parliamentary
appropriations for their funds. And, it was said, the Commonwealth could
not compel the States to appropriate moneys to meet the award. The
Court avoided the argument by holding that the Commissioners could be
'bound' by the awards, regardless of any problems of enforcement. Starke J.,
obiter, suggested that the Commonwealth lacked the capacity to compel
the States to appropriate funds in satisfaction of obligations. 63 In particular
he stated that there was nothing in section 51 (xxxv) authorizing the
Commonwealth to impair the appropriation requirement stipulated in the
State Constitutions. This argument, in effect, reversed the thrust of the
Engineers' Case in that it assumed an area of exclusive State power and
placed the burden of rebutting this assumption upon the Commonwealth.
Surprisingly, Isaacs J. intimated possible acceptance of this view, although
his comments are not free from ambiguity.64 In somewhat obscure fashion,
Dixon J. generalized the problem:
the Engineers' Case ought not to be understood as laying it down that over
a State the power of the Parliament is as full and ample as over the subject
and allows the same choice of remedies, measures and expedients to secure
fulfilment of the legislative will ... It may be that sec.106 provides the
restraint upon the legislative power over States which differentiates it from
the power over the subject and that no law of the Commonwealth can
impair or affect the Constitution of a State. No doubt, sec.106 is conditioned
by the words 'subject to this Constitution' but so too is sec.51. 65
This inroad into the Engineers' Case, which was without precedent in
American constitutional law,66 was carried further in the Garnishee Case
(No. 1).67 There the High Court resolved, partly at least, the greatest crisis
in Australian Federal-State relationships by upholding the provisions of
the. Commonwealth Financial Agreements Enforcement Act 1932. In 1927
62a See also Stuart-Robertson v. Lloyd (1932) 47 C.L.R. 482 where the High Court
held that the Court of Bankruptcy had power to require a bankrupt, who was a
member of the New South Wales Legislative Assembly, to pay to the Official Re-
ceiver portion of his parliamentary allowance.
63 (1930) 44 C.L.R. 319, 389-90.
64lbid. 353-54.
65 Ibid. 391-92.
66 Infra p. 48, n. 75.
67 New South Wales v. The Commonwealth No. 1 (1931) 46 C.L.R. 155.
MAy 1969] Immunity of Instrumentalities 47
the Commonwealth and States entered into a Financial Agreement whereby
the Commonwealth agreed to take over the public debt of the States.
The .States agreed, inter alia, to pay the Commonwealth a certain portion
of the interest charges. Section 105A of the Constitution, inserted by way
of amendment in 1929, sanctioned the Agreement by authorizing the
Commonwealth to enter financial agreements with the States, empowering
the Commonwealth to make laws carrying out such agreements (section
105A (3» and providing for such agreements to be binding upon the
Commonwealth and States, notwithstanding anything in their respective
Constitutions (section 105A (5». The 1932 Act empowered the Attomey-
General to apply to the High Court for a declaration, enforceable as a
judgment, declaring the amount due under any such agreement from a
State to the Commonwealth. The judgment was to operate as a charge
upon State revenues and, after the judgment had been obtained, a resolution
of both Houses of Parliament could create an involuntary assignment of
State revenues to the Commonwealth until the State's liabilities were dis-
charged. It was held, as matter of interpretation, without close reference
to the Engineers' Case that the enforcement provisions were warranted by
section 105A (3) and (5), together with certain other sections of the Consti-
tution. 68 The actual decision in the case, therefore, in no way impairs the
principle of the Engineers Case, but there are dicta in the case which do
have that effect.
It had been argued that the enforcement provisions were invaliO since
they disregarded the principle expressed in the A.R.U. Case that the Con-
stitution does not, in the absence of express contrary provision, 'authorize
the imposition upon the States of obligations which are not subject to the
condition that funds shall be appropriated by the Parliaments of the
States'.69 This argument was rejected because section 105A intended, in
sufficiently unambiguous terms, that the Commonwealth could enforce the
Agreement without regard to appropriate provisions in the State Constitu-
tions. Even Dixon J. allowed10 (as he had to, given the circumstances that
generated the Garnishee Case)l1 that any other conclusion would render
the Agreement unworkable. But of the majority,12 Rich, Starke and
Dixon JJ. insisted that the general principle, preventing the Commonwealth
68 Reliance was also placed upon the 'incidental power' in s.51 (xxxix), in con-
junction with both s.105A and s.75 (iii) (which gives the High Court original juris-
diction in cases in which the Commonwealth is a party). Rich and Dixon n. also
referred to s.78 combined with s.105A (5) as a possible source of power. S.78 en-
ables the Parliament to make laws conferring rights to proceed against a State in
respect of matters within the limits of the judicial power.
69 (1931) 46 C.L.R. 155, 176.
10 In the joint judgment of himself and Rich J. (1931) 46 C.L.R. 155, 179. The
judgment also makes specific reference to the circumstances existing at the time of
the case. Ibid. 181-82.
71 For an account of the clash between the Lang Labour government of New
South Wales and the Lyons Commonwealth government, events which culminated
in the dismissal of Lang by the Governor of New South Wales, Sir Phi lip Game, see
Evatt, The King and His Dominion Governors (2nd ed. 1967) 157-65.
12 Rich, Starke, Dixon and McTiernan n. Gavan Duffy C.J. and Evatt J. dis-
sented.
48 Melbourne University Law Review [VOLUME 7
or the Court from directly appropriating State revenues to enforce State
obligations, remained on foot, although it had been displaced here. Now,
at the very least it can be said that a different result in the Garnishee Case
would have sabotaged the Financial Agreement and may have exacerbated
an already chaotic situation. 73 The inability of the Commonwealth to
enforce 'obligations' against recalcitrant States might conceivably have a
similarly disastrous effect on the national policy in a crisis situation where
the Commonwealth is relying on a power other than that in section l05A.
It seems strange to hold that the Commonwealth in general has power to
bind the States by its laws, yet then conclude that the Commonwealth
cannot compel the States to meet their obligations-a conclusion that may
enable an obstinate State to frustrate an exercise of national power. The
result is even stranger when it derives from a priori reasoning that fails to
articulate a practical justification for the result. Professor Howard, who is
sympathetic to the approach of Dixon I. in this area, concedes that there
is ample textual justification for the view that the Commonwealth generally
can enforce its law against States' revenues, if necessary, and that the
contrary view rests upon 'implication'.74 This being so, what can justify
an implication that may frustrate the exercise of national power, yet serve
no immediate obvious practical goals?75
73 Conceivably the situation would still have been resolved by the dismissal of the
Lang government. But that solution, bitterly controversial at the time, could hardly
be acceptable today. Cf. Evatt, The King and His Dominion Governors (2nd ed.
1967) 165 ff.
74 Howard, Australian Federal Constitutional Law (1968) 60. He refers in particular
to ss.78 and 51 (xxxix).
75 The Supreme Court of the United States has held that it is prepared to execute
a jUdgment for money against a State. Virginia v. West Virginia (1918) 246 U.S. 565.
Although this was a suit between States, the judgment makes it plain that the posi-
tion would be the same if the suit were brought by the United States. Ibid. 601-03.
In the Garnishee Case (No. 1) Starke J. referred to Virginia v. West Virginia but
rejected it as savouring 'too much of the exercise of the political power to be within
the proper province of the judicial department'. (1931) 46 C.L.R. 155, 186. On the
other hand McTiernan J. seemed to accept the principle of the case. Ibid. 311-32.
76 (1937) 56 C.L.R. 657. . .
77 The States were able to tax the salaries of Commonwealth offiCials by VIrtue of
the Commonwealth Salaries Act 1907 (Cth) upheld in Chaplin v. Commissioner of
Taxes (S.A.) (1911) 12 C.L.R. 375. Supra p. 39, n. 32. The 1907 Act did not touch
pensions.
MAy 1969] Immunity of Instrumentalities 49
from State taxes 78 as resting upon the inconsistency of the Commonwealth
Acts specifying the salary and the State taxing Acts). Rich, Dixon and
McTiernan H. laid more stress upon the terms of the Commonwealth
legislation, which empowered the Governor-General to prescribe the extent
to which the pensions should be subject to State taxes. Since no regulations
had been prescribed, the legislation was said to demonstrate that the Com-
monwealth contemplated the imposition of State taxation ,upon the pensions
and thus there was no inconsistency between the Commonwealth legislation
and the State income tax. This approach is open to the interpretation that
had the Commonwealth legislation not authorized the regulations-that is,
if the legislation merely specified the value. of the pensions-the result
may have been different. However, whether or not this is so, the judgments
cast no doubt upon the rejection by the Engineers' Case of a constitutional
basis for the immunity of Commonwealth salaries or pensions from a
general State income tax. 79 They merely leave open the possibility that a
Commonwealth Act which, without more, fixes a salary or pension will be
inconsistent with a State law taxing that salary or pension.
Wesfs Case also provoked a discussion of the competency of the Com-
monwealth to legislate so as to exclude the application of State income
tax from Commonwealth pensions or salaries. Latham c.J., relying partly
upon the views expressed in Pirrie v. McFarlane,80 considered that the
Commonwealth clearly had power to clothe pensions with immunity.
Evatt J. was just as sure that the grant of immunity would be beyond
power. The High Court in Australian Coastal Shipping Commission v.
0' Reilly 81 has now accepted Latham c.rs views, in holding that section
51(i), the trade and commerce power, authorized legislation which accorded
the Commission immunity from State taxation to which the Common-
wealth itself was not subject. The majority adopted the American position
that the power to establish a corporation, in this case to conduct a national
shipping line, carried with it the power to protect that corporation from
'the embarrassment of taxation by the various States'.81a If the proposition
for which 0' Reilly stands is right (and it appears to be as settled as any
78 Deakin and Lyne v, Webb (1904) 1 c'LR. 588; Baxter v. Commissioners of
Taxation (N.S.W.) (1907) 4 C.LR. 1087. This view also required a reassessment of
Chaplin's Case because it could no longer be explained (a) as a case of waiver of
constitutional immunity nor (b) as a case of removal of the inconsistency always
existing between Commonwealth salaries legislation and State taxing Acts. Starke J.
(and semble Latham c'J.) saw the 1907 Act as amounting to a grant of immunity to
Commonwealth employees, except where the State taxation measure was non-dis-
criminatory. (1937) 56 C.L.R. 657, 678. Evatt J., who rejected the power of the Com-
monwealth to grant its instruntentalities immunity, argued that the result in Chap-
lin's Case would have been the same with or without the 1907 Act because the
States always had power to levy general taxes upon Commonwealth salaries or pen-
sions. Ibid., 695-96.
79 McTiernan J. expressly accepted the Engineers' Case on this point. (1937) 56
C.LR. 657, 711-13.
80 (1925) 36 C.LR. 170. Supra p. 44, n. 56.
81 Australian Coastal Shipping Commission v. O'Reilly (1962) 107 C.LR 46.
81a Ibid. 55. McTiernan J. reached the same result by relying upon s.51 (xxxix),
the incidental power. Menzies J. dissented. The leading Supreme Court case is
Pittman v. H.O.L.C. (1939) 308 V.S. 21. See supra p, 25, n. 59.
50 Melbourne University Law Review [VOLUME 7
principle in this area) it reinforces the correctness of the result in Wesf s
Case. If the Commonwealth has power to shield its instrumentalities from
State taxation (or State regulation, as in Pirrie) the decision whether or not
to protect those instrumentalities is one that can safely be left to Parliament.
The High Court cannot assess the extent to which the tax interferes with
the exercise of Commonwealth functions; only the Parliament is equipped
to do that. Consequently the High Court's role is to enforce State measures
until the Commonwealth Parliament itself calls a halt. On this analysis,
the onus should be upon Parliament to create an immunity. Thus the
preferable view is that there is no inconsistency between a general State
tax, and, say a Commonwealth Act specifying salaries.
He suggested that there were at least two matters which the general
principle of that case had not intended to embrace. An express exception
to the principle was legislation affecting the prerogative powers of the
States. 98 In addition, the Engineers' Case (although it did not consider the
issue) did not intend to cover legislation by one government discriminating
against the other:
The Engineers' Case, of course, had said nothing about the prima facie
meaning being displaced by the nature of the Commonwealth power.
Shortly after his return to the Bench at the conclusion of World War 11,
Dixon J. took the opportunity to create a further exception to the Engineers'
Case. One question before the High Court was whether a Victorian Act
levying municipal rates upon 'every person who occupies' ratable property
could be applied to the Commonwealth (the Army) as occupier of ratable
It singles out States and State agencies and creates a rule for them and for
no others. It is in substance legislation about States and State authorities. It
can fairly be described as being aimed at or directed against the States. 14
This led the Chief Justice to the conclusion that the law was invalid be-
cause in substance it was not a law 'with respect to' banking, but with
respect to State functions. 15 The other four majority judges interpreted the
banking power broadly and concluded that the section was prima facie a
law with respect to banking. Further, the law did not come within the
State banking exception, since that phrase referred to the State as banker
(1962) 107 C.L.R. 46, supra n. 81a.
lOa
Melbourne Corp. v. The Commonwealth (1947) 74 C.L.R. 31.
11
12 Holmes, 'Back to Dual Sovereignty' (1948) 21 Australian Law Journal 162.
13 Latham C.l., Rich, Starke, Dixon and Williams H.; McTiernan l. dissenting.
14 (1947) 74 C.L.R. 31, 62.
15 See also his judgment in West v. Commissioner of Taxation (N.S.W.) (1937) 56
C.L.R. 657, 668-69. There are of course grave difficulties in applying this approach.
MAy 1969] Immunity 0/ Instrumentalities 57
rather than customer. Nevertheless the law was held to be invalid because
it discriminated against the States. Extensive references were made to the
various opinions in New York v. United States 16 to support the argument
that the very minimum implication from the federal Constitution was that
neither government had power to discriminate against the other. In the
words of Dixon J. :
the efficacy of the system logically demands that, unless a given legislative
power appears from its content, context or subject matter so to intend, it
should not be understood as authorizing the Commonwealth to make a law
aimed at the restriction or control of a State in the exercise of its executive
authority. 17
22 (1947) 74 C.L.R. 31, 66, 70. Cf. the judgments of Latham C.J., ibid. 55-56 and
Dixon J., ibid. 81-82. Williams J. presented a similar argument, ibid. 98-99, although
he also partly relied on a characterization approach.
23 Sawer, 'Implications and the Constitution' (1948-49) 4 Res ludicatae 15, 18-19,
85.
24 (1947) 74 C.L.R. 31, 88-89.
25 Ibid. 84. Presumably his statements were subject to exceptions for taxation laws
(Essendtm Corp. Case) and laws affecting the prerogative (see the dissent of Dixon J.
in In re Foreman & Sons Pty Ltd; Uther v. Federal Commissioner of Taxation
(1947) 74 C.L.R. 508). Cf. Bank of New South Wales v. The Commonwealth (1948)
76 C.L.R. 1, 338.
26 Howard, Australian Federal Constitutional Law (1968) 67.
21 Supra p. 57, n. 17, passage cited.
28 (1947) 47 C.L.R. 31, 84.
MAy 1969] Immunity of Instrumentalities 59
imposes an especially severe burden upon the States. 29 He also suggested
that the immunity of the federal government might be affected by different
considerations because of the supremacy of the Commonwealth. 30 But he
did not elaborate and it must be remembered that in West's Case he was
prepared to strike down legislation discriminating against Commonwealth
pensions on constitutional grounds.
Starke, Rich and Williams JJ. were prepared to accept that a general law
which in its application to the States prevented or impeded the perfor-
mance of 'normal and essential functions of government' might be invalid.31
relying in part on passages in the opinions in New York v. United States.
They were apparently prepared to accept the doctrine as reciprocal. Starke
J. stated the rule to be 'that neither federal nor State governments may
destroy the other nor curtail in any substantial manner the exercise of its
power or obviously interfere with one another's operations'.32 However he re-
jected the old dichotomy between essential and trading governmental
functions, leaving it quite unclear what functions were protected. No
attempt was made to provide a standard for determining what kind of law
might be an interference with such functions, nor to explain how the new
formula would overcome the inconsistencies and absurdities of the old
immunities doctrine. After all, that doctrine was thought to rest upon the
mutual independence and continued existence of the States and Common-
wealth free from interference in the exercise of their functions.
The limited discussion of the relevant American authorities revealed,
with respect, an imperfect understanding of the practical difficulties that
led to the drastic restriction of the immunities doctrine in the United
States. In particular, Starke J. seemed to approve of the broad doctrine
that once held sway and he sternly characterized the more recent restric-
tions of its scope as depending upon 'practical considerations rather than
juristic principles'.33 He relied upon statements in New York v. United
States to support the view that a non-discriminatory law might be uncon-
stitutional as applied to certain State activities. However those statements
were obiter and in any event were limited to the problem of the federal
government levying a tax upon the States. The Supreme Court has clearly
decided, in the context of the commerce clause, that the States cannot
claim exemption from federal regulation.
Despite the breadth of these views, an opportunity to expand the scope
of the revived immunities doctrine was not seized in the Bank N ationaliza-
tion Case. 34 The Commonwealth Labour government, responding to
Dixon J.'s apparent invitation in the State Banking Case, attempted to
29 An example might be customs duty (or a prohibition) imposed upon the import
of goods in fact used only by States. Cf. Steel Rails Case.
30 (1947) 74 C.L.R. 31, 84.
31 Ibid. 66, 74, 98-99.
32 Ibid. 74.
33 (1947) 74 C.L.R. 31, 71. He referred particularly to Helvering v. Gerhardt (1938)
304 V.S. 405.
34 Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1.
60 Melbourne University Law Review [VOLUME 7
In the present case the fallacious process of reasoning could not begin from
s.107 as the error has so commonly done in the past. For it is not a question
whether the power of the Parliament of a Colony becoming a State con-
tinues as at the establishment of the Commonwealth. The Colony of New
South Wales could not be said at the establishment of the Commonwealth
to have any power at all with reference to the Commonwealth. Like the
goddess of wisdom the Commonwealth uno iclu sprang from the brain of
its begetters armed and of full stature. At the same instant the Colonies
became States; but whence did the States obtain the power to regulate the
legal relations of this new policy with the subjects? If formed no part of
the old colonial power. The Federal Constitution does not give it. Surely it
is for the peace, order and good government of the Commonwealth, not for
the peace, welfare and good government of New South Wales, to say what
shall be the relative situation of private rights and of the public rights of the
Crown representing the Commonwealth, where they come into conflict.4 5
The result of this analysis 46 seems to be that the States are constitution-
ally incompetent to regulate the Commonwealth's relations with its sub-
jects. This incompetence does not derive from an implied immunity for
Commonwealth governmental functions, but from an alleged historical
41 See generally the judgment of Latham c.J., In re Richard Foreman and Sons
Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 C.L.R. 508, 520-21.
42 Dixon J. had put forward the same views in obiter dicta in F. C. of T. v. Official
Liquidator of E. O. Farley Ltd (1940) 63 C.L.R. 278.
43 Supra p. 54, n. 98.
44 (1947) 74 C.L.R. 508, 528. The example is given of the Commonwealth con-
tracting with a company and being bound by the form of contract in the Companies
Act. See also Commonwealth v. Bogie (1953) 89 C.L.R. 229, 260 per Fullagar J. (if
the Commonwealth makes a contract in Victoria it may be bound by the provisions
of the Victorian Goods Act).
45 (1947) 74 C.L.R. 508, 530-31.
46 Shared by Fullagar J. in Commonwealth v. Bogie (1953) 89 C.L.R. 229.
62 Melbourne University Law Review [VOLUME 7
incapacity of the States. 41 However the Commonwealth may apparently
subject itself to State law, presumably by entering transactions in a manner
implying an acceptance of State law (this may be the ground upon which
Pirrie v. McFarlane remains good law)48 or by adopting State law by re-
ference, as in sections 79 and 80 of the Judiciary Act. To illustrate the
unresolved issues that attend this analysis, it might be noted that section
79, which states that the laws of each State shall, except as otherwise pro-
vided by the Constitution or Commonwealth laws, be binding on all Courts
exercising federal jurisdiction in cases to which they are applicable, seems
to suggest that Cigamatic should have been decided the other way, although
the point was not considered by the High Court.483o
The argument of Dixon J. in Uther's Case (accepted by the majority in
Cigamatic49 seems to rest on the sheer logical impossibility of the· States
acquiring power to govern the relations between the new juristic entity,
the Commonwealth and its subjects. But, with respect, this view is not
logically compelled at all and an equally plausible argument can be made
the other way-an argument plausible enough to be accepted by the
majority in Uther's Case and by the dissenters in Cigamatic. The counter-
argument has as its starting point the proposition that the States both
before and after 1900 had the same power-to legislate for their own
peace, order and good government-although of course after 1900 this
power was subject to the express provisions of the Commonwealth Con-
stitution. The regulation of priorities of creditors in the liquidation of
companies within a State is obviously a matter for the peace, order and
good government of that State. The regulation, insofar as it embraces the
Commonwealth, does not merely affect the rights of the Commonwealth
vis-a-vis its subjects, for the Commonwealth is bound as part of a unified
scheme dealing with the distribution of company assets to creditors. Con-
sequently, despite the special character of the prerogative rights of the
Commonwealth, a State law purporting to regulate the priority of Com-
monwealth debts in liquidation proceedings is at least capable of answering
the description of a law for the peace, order and good government of the
State. As such it will remain in force until displaced by an inconsistent
Commonwealth law.
If it is true that each argument is equally plausible as a matter of logic,
surely the Court should apply that principle which is more conducive to
the effective working of government. In this case there is no doubt that
the Commonwealth is able to protect its tax revenues by conferring priority
upon taxation debts in liquidation or bankruptcy proceedings. None of the
47 Sawer, 'State Statutes and the Commonwealth' (1961) 1 Tasmania University Law
Review 580.
48 Howard thinks the case is overruled by Cigamatic. Australian Constitutional Law
(1968) 92-96. Sawer thinks the case may survive. Australian Federalism in the Courts
(1967) 138. In any event it will be necessary for the High Court to define the cir-
cumstances in which the Commonwealth is deemed to submit to State law.
4830 Cf. Musgrave v. The Commonwealth (1937) 57 C.L.R. 514, 547-48.
49 For detailed criticism see Sawer, 'State Statutes and the Commonwealth' (1961) 1
Tasmania University Law Review 580.
MAy 1969] Immunity of Instrumentalities 63
judgments in Cigamatic suggests that such a law would not be incidental
to the taxation power. Similarly, the Commonwealth is able to accord its
instrumentalities immunity from undesirable State regulation. There is no
compelling reason for the High Court to protect Commonwealth revenues
or the operations of Commonwealth instrumentalities pending federal
legislative action. The Commonwealth has only six State governments to
consider and it is hardly possible that the States, by applying their laws to
the Commonwealth, could frustrate the will of a resolute federal govern-
ment.
However, the main vice of the Cigamatic doctrine is not merely that it
is unnecessary, but that it is likely to discourage timely and considered
legislative solutions to problems such as that presented in the case itself.
As Taylor J. pointed out in his dissenting judgment,50 the position con-
cerning the priority of debts due to the Commonwealth was badly in need
of legislative reform, as there was a hotch-potch of apparently inconsistent
and incomplete statutes bearing on the issue. The decision removed any
incentive for the Commonwealth to clarify the general question of the
priority of debts due to it. A different result would have forced the federal
government to consider whether it wished to be bound by the order of
priorities stipulated in the uniform State companies legislation (drafted,
incidentally, on the assumption that Uther was good law) or whether a
new code regulating the priority of Commonwealth debts was required.
It must be admitted that the Cigamatic principle approximately corres-
ponds to current United States doctrine which, as we have seen,51 prevents
the States from regulating transactions to which the United States is a
party. This doctrine has been reached by a rather different route from that
employed by the High Court, being a relic of the broad immunity doc-
trine. 52 However the stringency of the American doctrine has been tem-
pered by the willingness of the Supreme Court to allocate law-making
competence rationally between the federal government and the States
according to their legitimate spheres of interest. The question that is asked
is whether the transaction is one of predominantly federal or State con-
cern, rather than whether the federal government has 'subjected itself' to
State law or waived its constitutional immunity.53 Thus State law has been
applied to an action by the United States in trespass to land, 54 but federal
law to claims by the United States for the loss of services of a soldier neg-
ligently injured by the defendant and for conversion of a cheque drawn
by the federal government. 55 No doubt the task facing the High Court is
50 (1962) 108 C.L.R. 372, 385, 388. 51 Supra pp. 34-35 nn. 9-13.
52 Some of the reasoning of Dixon C.J. is reminiscent of that employed by Mar-
shall C.J. in McCulloch v. Maryland (1819) 4 Wheat. 316, supra p. 19, n. 23.
53 Von Mehren and Trautman, The Law of Multi-State Problems (1965) Ch. viii;
Hart and Wechser, The Federal Courts and the Federal System (1953) Ch. 6, sect. 5.
54 Cotton v. United States (1850) 11 How. 229; Mason v. United States (1922)
260 V.s. 545.
55 United States v. Standard Oil of California (1946) 332 V.s. 301; Clearfield
Trust & Co. v. United States (1943) 318 V.S. 363. These two cases were referred to
by Dixon J. in his dissenting judgment in Uther. See also D'Oench, Duhme & Co. v.
F.D.I.C. (1941) 315 V.S. 447.
64 Melbourne University Law Review [VOLUME 7
to detennine the circumstances in which the Commonwealth will be deemed
to submit to State law and perhaps in due course the two systems may
reach similar positions. But, given the conceptual origins of the Cigamatic
doctrine, it may be doubted whether the High Court will reach a satisfac-
tory accommodation of the competing interests in its self-imposed task. A
better solution would be to pennit the application of State law to Com-
monwealth transactions until the Commonwealth Parliament decides that
federal interests are adversely affected.
6. Summary
The present status of the revived implied immunity doctrine in Australia
IS uncertain. The High Court may confine the implied limits upon the
Commonwealth's power to regulate the States to the three 'exceptions' to
the Engineers' Case fonnulated by Dixon C.J.-Iaws relating to taxation or
the Crown prerogative and laws discriminating against the States. This is
suggested by the Professional Engineers' Case,56 in which Dixon C.J. dealt
with the question for the last time prior to his retirement from the Bench.
In his judgment, Dixon c.J. reaffirmed the subjection of the States to
Commonwealth power over interstate industrial disputes, applying the
orthodox Engineers' principle that, in general, Commonwealth powers
must be construed free of any implied restrictions. He made it quite clear
that the implied immunity argument could not be employed in any fonn
at all 57 to curtail the scope of Commonwealth power in section 51 (xxxv).
On the other hand some of the language in the State Banking Case sup-
ports a much broader doctrine which would proscribe any attempt by one
government to impede the other in the exercise of its functions. But this
language seems to have been conveniently forgotten. Yet even if the High
Court were to discard the excesses of the State Banking Case and to confine
the implied limits upon governmental power to the three exceptions to the
Engineers' Case, it could give these exceptions extremely wide scope. In
particular the taxation exception could give birth to immunities rivalling
the absurdities of the old doctrine itself. 58
The extent of State power to regulate Commonwealth activities is even
more obscure following the Cigamatic Case. The lesson of the decision
seems to be the absolute constitutional incapacity of the States to attach
legal consequences to the Commonwealth's relations with its subjects. The
one thing that is certain is that the Cigamatic doctrine must undergo con-
siderable refinement and modification as the full ramifications of the de-
cision are worked out by the High Court.
56 Ex Parte Professional Engineers Association (1959) 107 C.L.R. 208, 234. Ibid.
276 per Windeyer J.
57 The argument was that a dispute between a State and its employees performing
'governmental functions' could not amount to an industrial dispute within s.51
(xxxv). This was said to revive the old immunity doctrine in a new form. (1959) 107
C.L.R. 208, 234-35, 276.
58 The essential issues would be raised if the States decided to challenge the Com-
monwealth payroll tax which has been applied to them for a number of years.
MAy 1969] Immunity of Instrumentalities 65
The revival of the implied immunity doctrine in Australia has been the
product of an assumption that the Constitution necessarily envisages the
continued existence of the States and the Commonwealth as independent
entities unimpeded in the exercise of their functions. It has been submitted
that this assumption does not square with the legal and factual character
of Australian federalism. Not only are the States dependent upon the
Commonwealth for funds, but they can be forced to mould their policies
to Commonwealth requirements: in a real sense it is true that the survival
of any meaningful role for the States in Australian federalism depends
upon the consent of the Commonwealth. In view of the untenable founda-
tions upon which the new doctrine is erected, it is hardly surprising that
the High Court has failed to enunciate standards that would permit the
doctrine to function more satisfactorily than its predecessor. Nor is it sur-
prising that the High Court has failed to appreciate the reasons that have
induced the Supreme Court to curtail its propensity to limit the scope of
legislative power on the basis of constitutional implications. The American
authorities have been cited, in more recent times, to justify increased
judicial activism by the High Court. A closer analysis of those authorities
would have revealed a progressive trend towards minimization of the role
of the Court in formulating implied limits on governmental power.
If judicial review is to be meaningful, it is obvious that a constitutional
court must not discard the authority to invalidate legislation as ultra vires.
However; the striking down of legislation is a grave step which the Court
should be reluctant to take. Certainly the Court should not seek to achieve
its conception of the ideal federal structure by imposing its solutions upon
the other components of the system through judicial activism. The charac-
ter of federalism must ultimately depend upon the assessment by the
nation's political institutions of the appropriate responses to governmental
problems. The direction in which the High Court moves will depend upon
whether it realizes that it is not always the body best suited to make the
political judgments required to resolve conflicts between governments in
the federal structure. Conceptual notions removed from the real world of
political relations do not provide a solid basis for constitutional adjudi-
cation.
IV CONCLUSION
The history of the respective implied immunity doctrines in Australia
and the United States reflects the divergent attitudes of the High Court
and the Supreme Court to the task of judicial review. The American doc-
trine has progressively diminished in extent during the past three decades
and, as an effective curb on governmental power, is at its lowest ebb since
its inception. This diminution has followed from the general (although by
no means complete) appreciation by the Supreme Court of the practical
difficulties generated by the doctrine. The Court has revised its role as
constitutional arbiter, declining to pursue an active role in striking down
66 Melbourne University Law Review [VOLUME 7
legislation as infringing constitutional implications. It has become increas-
ingly conscious of the need to exercise its powers with restraint (outside
the field of civil liberties) and, in particular, of the desirability of permit-
ting conflicts between governments within the federal structure to be re-
solved through the political processes. The main consequence is that the
federal government is generally able to frame solutions to national prob-
lems without those solutions being frustrated by the immunity of the
States from regulation.
The Australian doctrine, by contrast, is in the process of resuscitation
and may well produce significant restraints upon legislative power, federal
and State. The High Court's active role is justified by partly articulated
assumptions about the character of federalism, some of which do not cor-
respond with current realities, in view of the inevitable expansion of
national power after the Uniform Tax Case. In keeping with its general
approach to constitutional adjudication the High Court has been far from
reticent in asserting its powers to review. Consequently, it has invalidated
legislation (or threatened to do so) without always paying close regard to
the practical impact of its actions and without always considering whether
its imposed solutions adequately reconcile the competing interests in the
particular governmental conflict. Nor has the approach been compelled by
the clear terms of the constitutional text. From first to last, the doctrine
has been the creature of judicial inventiveness, lacking support from any
specific provision in the Constitution. Recent reliance upon American
authorities has been at least partially misplaced, for the High Court has
not been prepared to accept that, although remnants of the doctrine remain
in the United States, the overwhelming tendency has been to curb the
impact of the doctrine upon governmental power.
Many observers consider that the most disturbing feature of the federal
systems of both Australia and the United States has been the inexorable
expansion of national power and the consequent decline of the States as
independent units. This has resulted from the use of the taxing power in
one case and the commerce power in the other. But if it be a desirable
goal to restore the States to a position of significance in the federal struc-
ture, some means other than a revival of the doctrine of implied govern-
mental immunities must be employed to reach that goal.