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Article Excerpt
[A citizen cannot sue the government without a 'right to proceed', that is, a law removing the government's immunity from suit. Current High Court doctrine holds that, in cases in federal jurisdiction, a right to proceed derives by implication from the grant of jurisdiction. This article subjects that doctrine to critical analysis. The current doctrine does not appear to give any role to s 78 of the Australian Constitution, which grants power to the Commonwealth Parliament to confer rights to proceed in federal cases. It is suggested that, at most, it could be argued that Australian governments do not retain any immunity from suit in constitutional cases and (possibly) in cases coming within the High Court's constitutionally guaranteed jurisdiction under s 75 of the Australian Constitution. This suggested approach leaves room for the operation of s 78 of the Australian Constitution and also for provisions such as ss 56 and 58 of the Judiciary Act 1903 (Cth).]
CONTENTS I Introduction II Mewett and British American Tobacco--The Right To Proceed Derives from the Grant of Federal Jurisdiction A The Previous Approach--Sections 56, 58 and 64 of the Judiciary Act 1 Sections 56 and 58 2 Section 64 B Mewett--The Right To Proceed against the Commonwealth 1 Gummow and Kirby JJ--The Right To Proceed Derives from Conferral of Federal Jurisdiction C British American Tobacco--The Right To Proceed against the States 1 McHugh, Gummow and Hayne JJ--The Right To Proceed Derives from Conferral of Federal Jurisdiction 2 Gleeson CJ and Kirby J--The Right To Proceed in Constitutional Cases Is Implied from the Australian Constitution Itself. D Summary of Recent High Court Authorities III Responding to Mewett and British American Tobacco A Critical Analysis of Mewett and British American Tobacco 1 Commonwealth Immunity in State Courts and Other Federal Courts 2 The Role of Section 78 of the Australian Constitution 3 Summary of Critical Analysis B Preferred Analysis of the Source of the Right To Proceed 1 Two Separate Factors--Constitutional Review and the High Court's Section 75 Jurisdiction 2 Consequences of Preferred Analysis--Should Ability To Sue Depend on Legislation? 3 Summary of Preferred Analysis C Function of Judiciary Act Sections 56 and 58 Following Mewett 1 The Function of Section 56--Options 2 Reconciling Section 56 and the Guaranteed Right To Proceed 3 Summary of Effect of Sections 56 and 58 IV Conclusion
I INTRODUCTION
The well-known statement that the Australian Constitution is framed against the assumption of the rule of law (1) is commonly taken to mean two things. First, it is the role of the courts to determine whether government action (both Commonwealth and state) is consistent with the Australian Constitution. This principle can be traced to the American decision of Marbury v Madison. (2) Second, it is the role of the courts to determine whether executive action is lawful more generally. (3) In the case of the Commonwealth, s 75(v) of the Australian Constitution in particular indicates that there is an entrenched level of judicial review for decisions by Commonwealth officers. (4)
However, the lawfulness of government action is not only ensured through proceedings for judicial review. Proceedings raising issues of 'private' law (in the sense of causes of action that can also arise in suits between citizens) (5) are another important check on government action. Gleeson CJ, Gummow, Kirby and Hayne JJ make this point in City of Enfield v Development Assessment Commission:
Significant questions of public law, including those respecting ultra vires activities of public officers and authorities, are determined in litigation which does not answer the description of judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth). Examples of other vehicles are the actions for recovery of moneys exacted colore officii or paid by mistake, and those for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant as an answer to the allegedly tortious acts. (6)
To bring a 'private' law action against the government, a plaintiff requires three things:
1 a cause of action (a legally recognised right against the government); (7)
2 a court with jurisdiction (relevantly, authority to determine the subject matter of the cause of action, and jurisdiction over the defendant); (8) and
3 a right to proceed. (9)
The right to proceed is a law removing the government's immunity from suit. Under the English common law, government immunity from suit was both a defence to the cause of action ('the King can do no wrong'), and a bar to the jurisdiction of courts ('the King cannot be sued in his own courts'). (10) This common law government immunity from suit will be applied in federal cases pursuant to s 80 of the Judiciary Act 1903 (Cth) ('Judiciary Act'), unless that immunity is contrary to the Australian Constitution or to any applicable statutory law conferring a right to proceed. (11)
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:
A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth:
(a) in the High Court;
(b) if the claim arose in a State or Territory--in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or
(c) if the claim did not arise in a State or Territory--in the Supreme Court of any State or Territory or in any other court of competent jurisdiction of any State or Territory. (18)
Section 58 provides that claims against a state in federal jurisdiction, 'whether in contract or in tort', may be brought in the supreme court of that state or (if the High Court has original jurisdiction) in the High Court.
There are obvious limits on the scope of the rights to proceed conferred by ss 56 and 58 of the Judiciary Act. Both provisions are limited to claims 'whether in contract or in tort', and only apply in specified courts.
2 Section 64
The High Court's decision in Commonwealth v Evans Deakin Industries Ltd (19) indicates that a right to proceed in federal cases could also derive from s 64 of the Judiciary Act. (20) Section 64 provides:
In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.
Unlike ss 56 and 58 of the Judiciary Act, s 64 applies to all cases in federal jurisdiction, (21) and is not limited by reference to the subject matter of the claim, or to particular courts.
Writing in 1996 (before Mewett was decided by the High Court), Susan Kneebone stated that '[t]he bulk of authority favours the view that s 78 of the Constitution, read with ss 56 and 64 of the Judiciary Act, is responsible for the removal of the Commonwealth's immunity in tort.' (22)
B Mewett--The Right To Proceed against the Commonwealth
In Mewett, (23) however, a plurality of the High Court held that laws enacted under s 78 of the Australian Constitution were not the source of the right to proceed when the Commonwealth was sued in contract or tort. The immediate question in that case was whether Commonwealth legislation extinguishing the right to bring common law claims against the Commonwealth amounted to an 'acquisition of property' in its operation on time-barred claims. In considering whether these claims were 'property' for the purposes of s 51(xxxi) of the Australian Constitution, the Court had to determine the source of the Commonwealth's liability, and whether these claims could be said to derive only from provisions such as ss 56 or 64 of the Judiciary Act. All members of the Court held that common law claims against the Commonwealth were 'property', even if time-barred. However, there were two views expressed on the source of the right to proceed.
Four members of the High Court--Gummow and Kirby JJ in a joint judgment, with Brennan CJ and Gaudron J agreeing--held that the right to proceed against the Commonwealth in cases in contract or tort derives from s 75(iii) of the Australian Constitution, which confers original jurisdiction on the High Court in matters in which the Commonwealth is a party. (24) That conclusion has been repeated in several subsequent decisions, without further discussion. (25)
By contrast, the other members of the Court in Mewett--Dawson J, with Toohey and McHugh JJ agreeing--held that the right to proceed against the Commonwealth derives from laws enacted under s 78 of the Australian Constitution--either s 56 or s 64 of the Judiciary Act. (26) As noted, this approach represented the weight of judicial authority before Mewett. (27)
1 Gummow and Kirby JJ--The Right To Proceed Derives from Conferral of Federal Jurisdiction
Gummow and Kirby JJ noted that there were four types of proceedings that were possible under the Australian Constitution which were 'not encompassed by the common law as it developed in England.' (28)
* First, the Constitution contemplates actions between the Commonwealth and a state in tort or in contract.
* Second, the Constitution contains provisions that themselves confer legal rights and obligations that can be enforced through the exercise of federal judicial power. For example, ss 89(iii) and 93(ii) initially required the Commonwealth to make payments to the states, and gave the states an enforceable right to receive the money. (29)
* Third, s 75(v) of the Constitution authorises the grant of injunctive relief against officers of the Commonwealth (which includes Ministers of State), to restrain acts that are beyond their constitutional or legislative authority. In England, by contrast, it was not clear until M v Home Office (30) that the courts could grant injunctions against Ministers of State.
* Fourth, a citizen may sue a government in tort, and claim that the law upon which the government relies for justification is constitutionally invalid.
From these examples, their Honours appear to have concluded that it would be incompatible with the system of federal judicial power for the Commonwealth to retain an immunity from suit. (31)
(a) Constitutional Cases
The second and fourth examples given above are both illustrations of the proposition that a common law immunity from suit could not prevent the courts from determining whether the Commonwealth had exceeded its constitutional powers. It may readily be accepted that a claim of government immunity from suit in that situation would 'cut across the principle in Marbury v Madison' (32) (that ultimately it is the courts who determine whether government action is consistent with the Constitution). The Commonwealth and states could not enact legislation that purported to grant an immunity from suit when the constitutional validity of government action was being challenged--if the action was constitutionally invalid, the purported immunity would itself be in breach of the same constitutional provision that invalidated the original government action. (33) It follows that a common law principle could not have this effect either, because the common law must conform to the Australian Constitution. (34)
However, it does not follow that the Australian Constitution must remove the Commonwealth's immunity from suit in all cases. As the minority in Mewett point out, the principle in Marbury v Madison would only require that the Commonwealth's immunity from suit be removed in cases where the plaintiff's claim depended on establishing that the Commonwealth had exceeded its constitutional powers. In other words, Marbury v Madison does not require the removal of the Commonwealth's immunity from suit in non-constitutional cases. (35)
In this context, 'constitutional' cases means matters 'arising under [the] Constitution' within s 76(i) of the Australian Constitution, (36) and therefore would cover any case where the claim, or a defence, owes its existence to the Australian Constitution. (37) For example, a common law action for moneys had and received would be a 'constitutional' case, if the moneys were paid on account of a constitutionally invalid tax. (38) Of course, s 76(i) also includes matters 'involving [the] interpretation' of the Australian Constitution. However, this phrase would not be relevant in 'private' law claims, because the requirement for a citizen to have standing would mean that constitutional challenges brought by private citizens would ultimately rest on a claim or defence that owed its existence to the Australian Constitution. (39)
(b) Cases between the Commonwealth and a State
Unlike the second and fourth examples, the first example given by Gummow and Kirby JJ--the possibility of suits in tort and contract between the Commonwealth and the states--does not seem to demonstrate any great incompatibility between the common law government immunity from suit and the federal judicial system. Clearly, it is true that this sort of proceeding was 'not encompassed by the common law as it developed in England', (40) because England has a unitary legal system. It does not follow, however, that the English common law of government immunity from suit cannot be adapted to a federation.
By analogy, the English common law presumption that statutes do not bind the executive government also arose in a unitary system of government. However, that presumption has been adapted to...
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