CTH-State RELATIONS (Immunities)

Exclusive powers of the Cth giving special immunity from operation of State laws
1. s 52 (regulate its public service, the seat of government, and Cth public places)
2. s 90 (levy customs duties and excise duties)
3. s 114 (regulate defence)
4. s 115 (the States shall not coin money, making the currency power (s 51(xii) an exclusive power)).

s. 114
A State cannot (without consent of Cth Parliament)
1. Raise or maintain any naval or military force
2. Impose any tax on property of any kind belonging to Cth
Cth cannot impose any tax on property of any kind belonging to a State.

s. 107: Power of States continue unless exclusively vested in Cth Parliament or withdrawn from State.

CHECK:
What law is it? Is it a Cth law affecting a State law OR a State law affecting a Cth law?
If Cth law affecting State, the Cth law must have a valid head of power first (because if there is no head of
power supporting the Act, then there is no valid law to begin with.).

CHECK:
Who is it?
The notion of State and Cth extends to agencies. Public bodies established for public purposes can fall
within the concept of Cth or State (Melbourne Corporation).

Cth and States have concurrent powers listed in s51, which vests enumerated powers in Cth, many of which
are also enjoyed by States, subject to S. 109 in the event of inconsistency. Cth laws can bind the States and
vice versa (Engineers).

However, GO TO 1 (Cth affecting State law) OR 2 (State law affecting Cth law).

1. IMPLIED IMMUNITIES OF COMMONWEALTH LAWS AFFECTING STATES

1. The Cth law applies to the States. There may be an implied immunity to protect it.
2. Cth law is invalid if it discriminates against States (1st limb of Melbourne Corporation).
3. The Cth cannot threaten the existence of the State or impede its capacity to function as an
independent entity (2nd limb of Melbourne Corporation.)
4. The states and their agencies are immune from Cth laws, even of general application, which “operate
to destroy or curtail the continued existence of the states or their capacity to function as
governments” (QEC v Cth).
5. For a Cth law to discriminate against State, it must ultimately infringe the state's structural integrity
(Austin)
6. Therefore, the Cth law will be invalid if it: Discriminates OR interferes with/curtails Govt functions
7. Concerning taxation: There is no necessary immunity by the states from taxation, so the Cth may
tax the states as long as no other constitution provision is breached (Payroll Tax Case).
2. IMPLIED IMMUNITIES OF STATE LAWS AFFECTING THE COMMONWEALTH

1. State law can operate in fields left open by Fed law, as Cth concurrent powers do not automatically
reserve any topics (Pirrie). Is the law repugnant or inconsistent per s 109? If no Cth law stands in the
way of the State law on the subject, such law remains valid and binding in State per s.107.
2. Does the law cover any of the below? If so, it is invalid.
States cannot bind the Cth with respect to: (West)
a. Taxation of Cth
b. Royal prerogative
c. General immunity
3. Uther (Dixon’s dissent) now majority view in Cigmatic
1. States cannot restrict the capacity of the Cth to exercise its executive power.
2. States have no power to make laws that bind the Cth.
3. States CANNOT affect the legal rights of the Cth in relation to its subjects
a. it is for the Cth and not State to say what is the private vs public right of the Crown
and the public where they come in conflict - In such a case States have no power
4. Legislative powers of the State CANNOT extend to cover a prerogative of the Cth (taxation =
prerogative as it is payment of debts)
5. The States CANNOT affect a federal fiscal right

Where a State law will validly affect the Cth: (“affected by” doctrine):
State laws affecting the Cth in ordinary capacities, such as when it engages in a transaction as an ordinary
legal person, Cth is bound by laws relating to that (Re Residential Tenancies Tribunal NSW)