bound, subject always to any inconsistency with a valid Commonwealth law’ s109 of the Constitution allows the Government to pass S109 Power – a law which would supersede any state law and this is typically done to avoid any Melbourne Corporation Doctrine’ issues. ‘reverse Exceptions to Commonwealth Immunity Judiciary Act 1903 s64 – The provides in s64 that the Commonwealth and Judiciary Act 1903 the States have equal rights. It provides that the Commonwealth is bound to the same laws as private citizens per the decision in (1977) 139 CLR Maguire v Simpson 362 s64 effectively removes the immunity Removes the Immunity – of the Commonwealth in the case nearly as Cigamatic – ‘as possible’ s64 only refers to a a - thereby not Only a Suit – ‘suit’ – including jurisdictional confinements of a tribunal etc Complete Immunity ? In a broad interpretation of Commonwealth immunity was Cigamatic, discussed but was not. In the approach was Pirrie A v. Hayden Pirrie – favoured over the ruling: Cigamatic (1984) 156 CLR 532 A v.Hayden Spy’s of the Australian Intelligence service were Background - prosecuted for a training raid conducted at Sheraton Hotel in 1983 illegally. They sought an injunction to prevent the release of their identities. Court refused the injunction and Cibbs CJ stated Decision – is fundamental to our legal system that the executive ‘it has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer’ State Law applies to Commonwealths servants but don’t apply to the Commonwealth itself. This was accepted in case where Hendersons Brennan CJ stated Crown in right of the Commonwealth cannot authorise ‘[t]he its servants or agents to perform their functions in contravention of the criminal laws of a State and cannot confer immunity upon them if, in performing those functions, they contravene those laws. For that reason, Pirrie v. McFarlane, in my opinion, was rightly decided’ Immunity under s52 of the Constitution S52(i) provides Commonwealth to create laws for
bound, subject always to any inconsistency with a valid Commonwealth law’ S109 Power – s109 of the Constitution allows the Government to pass a law which would supersede any state law and this is typically done to avoid any ‘reverse Melbourne Corporation Doctrine’ issues. Exceptions to Commonwealth Immunity Judiciary Act 1903 – s64 The Judiciary Act 1903 provides in s64 that the Commonwealth and the States have equal rights. It provides that the Commonwealth is bound to the same laws as private citizens per the decision in Maguire v Simpson (1977) 139 CLR 362 Removes the Immunity – s64 effectively removes the immunity of the Commonwealth in the Cigamatic case – ‘as nearly as possible’ Only a Suit – s64 only refers to a ‘suit’ – a - thereby not including jurisdictional confinements of a tribunal etc Complete Immunity ? In Cigamatic, a broad interpretation of Commonwealth immunity was discussed but Pirrie was not. In A v. Hayden – the Pirrie approach was favoured over the Cigamatic ruling: A v.Hayden (1984) 156 CLR 532 Background - Spy’s of the Australian Intelligence service were prosecuted for a training raid conducted at Sheraton Hotel in 1983 illegally. They sought an injunction to prevent the release of their identities. Decision – Court refused the injunction and Cibbs CJ stated ‘it is fundamental to our legal system that the executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer’ State Law applies to Commonwealths servants but don’t apply to the Commonwealth itself. This was accepted in Hendersons case where Brennan CJ stated ‘[t]he Crown in right of the Commonwealth cannot authorise its servants or agents to perform their functions in contravention of the criminal laws of a State and cannot confer immunity upon them if, in performing those functions, they contravene those laws. For that reason, Pirrie v. McFarlane, in my opinion, was rightly decided’ Immunity under s52 of the Constitution S52(i) provides Commonwealth to create laws for