I. Introduction
It is at least arguable that the Constitution does not permit either the Commonwealth or the State parliaments to confer powers coupled with duties on the officers, agents or tribunals of the other, without the authority of the other.Footnote 1
It has been said that it is an incident of the federal nature of the Commonwealth Constitution that ‘a State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth’.Footnote 2 But what of the converse proposition: is the Commonwealth Parliament prohibited from unilaterally imposing functions, or conferring powers, on state officers? The Supreme Court of the United States has recognised a similar principle, which has been labelled the ‘anti-commandeering’ doctrine.Footnote 3 Beginning with New York v United States (‘New York’)Footnote 4 in 1992, the US Supreme Court held that a federal law could not order State legislatures to regulate in accordance with federal standards, and in Printz v United States (‘Printz’) in 1997, this doctrine was expanded so that federal law is prohibited from commandeering a State officer to enforce federal law.Footnote 5 The anti-commandeering doctrine, Alito J has noted, ‘may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the [US] Constitution’.Footnote 6
The High Court of Australia has not been as quick to delineate a similar doctrine emanating from the Commonwealth Constitution. The American anti-commandeering doctrine first came to the High Court’s attention in Austin v The Commonwealth (‘Austin’) in 2003, where its existence was said to be ‘a large proposition and best left for another day’.Footnote 7 Five years later in O’Donoghue v Ireland (‘O’Donoghue’), six Justices again found it unnecessary to determine whether an anti-commandeering doctrine should be recognised.Footnote 8 The doctrine then lay dormant for some 15 years before being invoked once more in Attorney-General (Cth) v Huynh (‘Huynh’), but, yet again, it was unnecessary for the Court to squarely face the issue.Footnote 9
Just five months shy of the High Court’s reasons in O’Donoghue being delivered, an article in this journal sought to answer whether an anti-commandeering doctrine should be accepted as an incident of Australia’s federalist system.Footnote 10 Some 18 years later, this article seeks to explore the relevance of the doctrine in Australia’s constitutional landscape. Part II begins by briefly tracing the constitutional and historical foundations of the anti-commandeering doctrine in both the US and Australia. Part III will then consider the current state of affairs in Australia, using Austin, O’Donoghue and Huynh as a lens through which to examine the doctrine’s (potential) scope. As a result of this exegesis, this article argues that while the practical scope of any Australian-derived anti-commandeering doctrine has been curtailed by the High Court, there is a role for it to play at least as a ‘per se’ breach of the Melbourne Corporation principle. However, to have this effect, its ambit must be confined to situations where a law of the Commonwealth (i) imposes an administrative ‘duty’ on (ii) a state statutory office holder or statutory body, where (iii) this has not been acquiesced to by the relevant state legislature or contemplated by the Commonwealth Constitution.
Examples of commandeering are rare. As Dixon J famously remarked: ‘In a dual political system you do not expect to find either government legislating for the other.’Footnote 11 One more readily sees state legislatures imposing duties on its own agents. Accordingly, Part IV of this article explores a further use of the anti-commandeering doctrine which Huynh has revealed: preventing state laws imposing such duties from being picked up and applied as laws of the Commonwealth.
II. Constitutional and historical foundations
A. United States Creation
Although the US Supreme Court has recently observed that the anti-commandeering doctrine is ‘simple and basic’,Footnote 12 it was not recognised until the 1992 decision of New York. The case concerned a federal law that required a state to either ‘take title’ to low-level radioactive waste or ‘regulat[e] according to the instructions of Congress’.Footnote 13 Practically, the law required states to accept one of two options, both of which required law-making by them. This ‘commandeering’ of state legislatures was its constitutional flaw. As O’Connor J explained: ‘Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program”’.Footnote 14
The effect of New York is that Congress is forbidden from commandeering the state legislative process. But what about commandeering members of the state executive? The US Supreme Court considered this extension five years later in Printz. The case concerned the ‘Brady Act’ – the Brady Handgun Violence Prevention Act – which required state and local law enforcement officers to perform background checks and related tasks in connection with applications for handgun licences.Footnote 15 For example, after a firearm dealer provided an enforcement officer with the required paperwork, the enforcement officer was required to make a reasonable effort to ascertain within five business days whether the proposed handgun sale would violate federal, state or local law. The Court held that the provisions were unconstitutional to the extent that they imposed an obligation on state officials to execute federal laws. Writing for the majority, Scalia J noted: ‘The Federal Government’ may not ‘command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program’.Footnote 16 Extending the doctrine to protect state officers was seen as logical and necessary so that Congress could not ‘circumvent th[e] prohibition by conscripting States’ officers directly’.Footnote 17
The constitutional basis for the anti-commandeering doctrine stems from the concept of ‘dual sovereignty’ which is said to underpin the US Constitution. ‘Although [in 1789] the States surrendered many of their powers to the New Federal Government, they retained “a residuary and inviolable sovereignty”’.Footnote 18 In justifying the constitutional basis of the doctrine, the Court has referred to provisions of the Constitution which surrendered aspects of sovereignty,Footnote 19 and others which have retained state sovereignty.Footnote 20 The most important of the latter being the Tenth Amendment, which states: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ Additionally, the Court has explained that this residual state sovereignty is reflected in the US Constitution’s conferral upon Congress of ‘not plenary legislative power but only certain enumerated powers’.Footnote 21 This means that:
all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.Footnote 22
The doctrine is thus seen as necessary to protect the sovereignty of the states. As Professor Gold has explained: ‘because states are sovereign over their own executive officers, any federal commandeering would violate state sovereignty’.Footnote 23 How, then, does the doctrine translate into the Australian federal context?
B. An Australian Adoption?
The journey of commandeering in Australia begins with Austin. The Commonwealth Parliament implemented a legislative scheme by which state judicial officers were required to pay a federal tax, described as a ‘superannuation contributions surcharge’ in Austin.Footnote 24 Relevantly, s 12 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) required the states to employ an actuary to calculate the amount of ‘surchargeable contributions’ required under the scheme. The South Australian Attorney-General, intervening, objected to the validity of s 12, relying on Printz for the proposition that ‘[t]he Commonwealth cannot validly legislate so as unilaterally to impose a duty upon the State or an officer of the State to perform an executive function under a Commonwealth Act’.Footnote 25 It was argued that this proposition operated within the ambit of the principle derived from Melbourne Corporation v Commonwealth (‘Melbourne Corporation’),Footnote 26 as it was ‘necessarily inconsistent with the independence of the States for the Commonwealth to have power unilaterally to direct the State or its employees to perform Commonwealth duties’.Footnote 27 Printz was therefore invoked as a ‘bright-line’ rule, but within the context of the Melbourne Corporation principle.Footnote 28 Yet the Court did not need to decide this issue because it invalidated the legislation on the basis of the Melbourne Corporation principle generally. Its existence was said to be ‘a large proposition and best left for another day’.Footnote 29
That day was thought to have arrived when the Court heard argument in O’Donoghue. The Republic of Ireland, Republic of Hungary and the US sought extradition of Messrs Thomas, Zentai and Williams respectively. In each case, the individual was brought before a state magistrate for the conduct of proceedings pursuant to s 19(1) of the Extradition Act 1988 (Cth) (‘Extradition Act’) to determine if they were eligible for surrender by Australia to the relevant country in relation to the relevant extradition offence. Before the High Court, each of the men invoked Printz, again as a ‘per se’ breach of the Melbourne Corporation principle,Footnote 30 in aid of their contention that s 19(1) was invalid. But a majority of the Court found it unnecessary to consider the merits of the constitutional argument, for reasons to which this article will return.Footnote 31 Any potential relevance of the anti-commandeering doctrine laid dormant in Australia until Huynh, but the question as to its constitutional status was eschewed yet again.Footnote 32
In each of Austin, O’Donoghue and Huynh, a doctrine similar to the New York-Printz anti-commandeering doctrine was sought to be invoked in Australia. Yet the status of the doctrine remains unclear. What is clearer, however, is that the anti-commandeering doctrine, if ever operable in Australia, would derive from the intergovernmental immunity doctrine as developed post-Melbourne Corporation. Indeed, this is how it was sought to be invoked before the High Court.Footnote 33 This is because it is hard to conceive as a stand-alone implication derived from the text and structure of the Constitution.Footnote 34 And, other potential constitutional bases, such as the Commonwealth Parliament generally lacking power to impair state functioning, are difficult to reconcile with post-Engineers constitutional interpretative approaches.Footnote 35
In Melbourne Corporation, with considerable reference to US authority, there was a recognition that the Australian federation established by the Commonwealth Constitution requires an implied constitutional limitation ensuring that the states continue to exist as independent governing entities.Footnote 36 Subsequent cases saw this develop into a two-limbed doctrine proscribing discriminatory state treatment as well as general laws affecting the existence of states or their capacity to function as governments,Footnote 37 whether affecting ‘legislative, executive or judicial’Footnote 38 operations. The more recent cases of Austin and Clarke v Commissioner of Taxation (‘Clarke’) replaced this with a singular inquiry into whether there was an impairment by the Commonwealth of the ability of the states to function as governments,Footnote 39 with discrimination being one such mechanism for this to occur.Footnote 40
For Melbourne Corporation, as developed in later cases, to be the basis of an application of anti-commandeering seemingly requires establishing that imposing a duty on a state statutory office holder without state approval impairs the ability of a state to function as a government.Footnote 41 In O’Donoghue this was couched by the majority as an argument based on a ‘per se breach’ of the principle of federalism enunciated in Melbourne Corporation Footnote 42 (arguably intersecting with case law finding that the Commonwealth could not encroach on a state’s capacity to control its higher echelon appointments).Footnote 43
In Clarke, French CJ posited a multifactorial approach as to whether a state’s functioning was affected by a Commonwealth law.Footnote 44 For the Chief Justice:
The ‘significance’ of a Commonwealth law affecting the States’ functions is not solely to be determined by reference to its practical effects on those functions. This is not a return to any generalised concept of inter-governmental immunity. It simply recognises that there may be some species of Commonwealth laws which would represent such an intrusion upon the functions or powers of the States as to be inconsistent with the constitutional assumption about their status as independent entities.Footnote 45
French CJ contended that a ‘qualitativ[e]’ assessment must be made as to the ‘significan[ce]’ of the impact on the state by the Commonwealth Act, such that a ‘gubernatorial privileges tax’, which might be quite trivial for the state in one sense, would represent such an ‘intrusi[on]’ as to be ‘inconsistent with the status of the states as independent entities under the Constitution’.Footnote 46 In Spence v Queensland, Edelman J described the inquiry into the significance of the impact on the state as one involving both ‘breadth and depth’.Footnote 47 His Honour concluded that ‘a burden will be more deeply felt the more that it is targeted at the other polity and the more essential the governmental function that it curtails is to that other polity’Footnote 48 and it ‘will be wider the more that it curtails the operation of the governmental functions of the other polity’.Footnote 49
Take as an example the High Court case of Commonwealth v New South Wales.Footnote 50 This case concerned s 20 of the Lands Acquisition Act 1906 (Cth) which required the State Registrar-General to grant title registration to the Commonwealth and effectively ‘in the performance of his State functions to disregard the conditions of his statutory authority and to act in accordance with Commonwealth directions’.Footnote 51 While pre-dating the constitutional intergovernmental immunity jurisprudence discussed above, it was found by a majority that this attempt by the Commonwealth was constitutionally invalid.Footnote 52 Based on the later jurisprudence, the argument could be that this interfered with state constitutional independence in controlling the actions of a statutory office holder without state legislative acquiescence.
What is evident is that the Australian formulation of any form of state anti-commandeering would likely vary from that which has developed in the US. The Printz line of authority is based on the concept of ‘dual sovereignty’ and the absence of express constitutional power to control state officers in the US Constitution.Footnote 53 But as canvassed in O’Donoghue, any notion of dual sovereignty does not carry quite the same connotations in the Australian context. The High Court has increasingly in the years following federation tended towards a more expansive notion of Commonwealth constitutional power, including to regulate the states. Accordingly, the jurisprudential basis of intergovernmental immunity, including any aspect of anti-commandeering, is less focused on residual state legislative sovereignty than on an implied limit on Commonwealth power based on retaining the ‘status of the States as independent entities’Footnote 54 as essential to the workings of the Australian Federation. Further, in Printz, one sees an intentionally and marked deviation from the American ‘authorities which march with the Melbourne Corporation doctrine’.Footnote 55 Crucially for Australia, it is this Melbourne Corporation jurisprudence, as revised in Austin and Clarke, from which any Australian anti-commandeering doctrine would be derived.
The distinct nature of Australia’s constitutional structure brings about another consequence. As with the Melbourne Corporation principle,Footnote 56 the Commonwealth Constitution may foreclose the application of the anti-commandeering doctrine. Accordingly, in O’Donoghue it was recognised that the doctrine would not operate if there was ‘something in the subject matter, content or context of a particular head of Commonwealth legislative power to indicate to the contrary’.Footnote 57 Certain heads of legislative power would seem to impliedly authorise commandeering, with the defence power in s 51(vi) being a clear example.Footnote 58 Others are explicit. Most important to the anti-commandeering doctrine is s 77(iii),Footnote 59 which enables the Commonwealth Parliament to invest state courts with federal jurisdiction. In other words, s 77(iii) enables the Commonwealth Parliament to make state courts ‘judicial agents of the Commonwealth’ for the exercise of federal judicial power.Footnote 60 As will be explored in Part III, the ‘autochthonous expedient’ has a consequential impact upon the practical operation of any anti-commandeering doctrine.
III. Practical Scope of an Australian Anti-commandeering Doctrine
A consequence of the differing constitutional structures between Australia and the US is that much of the reasoning behind the US anti-commandeering doctrine ‘cannot be directly applied to the Australian Constitution’.Footnote 61 In light of this, the doctrine has been proposed in terms which reflect Australia’s distinct constitutional framework. In O’Donoghue, it was submitted that:
It is an implication from the federal structure of the Constitution that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval.Footnote 62
It may immediately be observed that the limitation takes account of the autochthonous expedient in s 77(iii) by reason of its confinement to the imposition of an administrative duty (as opposed to judicial functions) upon a state statutory officer holder (as opposed to a court of a state).Footnote 63 But why is the proposed implication limited to the imposition of a ‘duty’? Does it apply to non-statutory state officers? And why is state legislative approval needed to negate its operation? This Part turns to consider each of those questions. It will be argued, however, that the doctrine only stands to function as a ‘bright-line’ limit upon Commonwealth legislative power if confined in this way.
A. ‘Duty’
The High Court has indicated that if the anti-commandeering doctrine were accepted as an incident of our federal structure, it would only apply if a ‘duty’ were imposed.Footnote 64 But what precisely is a ‘duty’? Gleeson CJ has explained that, ‘[i]n this constitutional context, it is the creation by federal statute of an obligation to execute federal law that is the essence of the supposed duty’,Footnote 65 in the sense that performance could be compellable by mandamus.Footnote 66 This echoes the operation of its US counterpart, which applies only when federal law ‘commands’ state legislatures or officers.Footnote 67
The concept of a ‘duty’ was distinguished in O’Donoghue from the ‘powers’ (or ‘functions’) which a court may exercise.Footnote 68 A ‘duty’ is the conferral of a power or function that must be exercised; ‘that is, a power or function, the exercise of which is mandatory’.Footnote 69 The distinction is important, for it has been suggested that there is nothing inherently unconstitutional about federal law conferring powers upon state officers. This falls from the Court’s decision in Aston v Irvine, which held valid federal provisions conferring powers upon state magistrates in respect of interstate service of process.Footnote 70 To give state magistrates those powers pursuant to federal law was said to involve ‘no interference with the executive governments of the State[s]’.Footnote 71 The force of the distinction between duties and powers has been questioned by some,Footnote 72 and it is an issue to which this article shall return.
In O’Donoghue, s 19(1) of the Extradition Act stated that where certain steps had been taken and a magistrate considered there had been a reasonable time to prepare, then:
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.Footnote 73
Counsel for Messrs Thomas, Zentai and Williams submitted that the subject matter, language and structure of the Act made it clear that s 19(1) imposed a duty, such that a magistrate to whom the application was made ‘could not simply abnegate his authority’.Footnote 74 Key features in aid of this construction were the mandatory language of ‘shall’ and that the subject matter of s 19 was a determination that affects liberty. Precluding the majority accepting that submission, however, was s 4AAA of the Crimes Act 1914 (Cth) (‘Crimes Act’), which had to be read together with s 19(1) of the Extradition Act.Footnote 75 Section 4AAA identifies a series of ‘rules’ of construction that apply if ‘under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on’, relevantly, a state magistrate.Footnote 76 One rule is that the function or power is conferred on the person only in a personal capacity.Footnote 77 Importantly, s 4AAA(3) provides another rule: ‘The person need not accept the function or power conferred’. For Gleeson CJ and the joint judgment (Gummow, Hayne, Heydon, Crennan and Kiefel JJ), s 4AAA(3) had the effect that state magistrates were not obliged to accept the conferral under s 19(1), and, therefore, no ‘duty’ was imposed.Footnote 78 Kirby J, on the other hand, thought that this outcome had an air of artificiality:Footnote 79 it is quite unlikely that, as a matter of practical reality, a judicial officer could choose not to exercise a function so conferred. But his Honour’s objection is unlikely to carry much weight in circumstances where it has been held that ‘acceptance, rather than “non-acceptance”, may be inferred from a course of conduct, in particular by exercise of the power or function in question’.Footnote 80
Although s 4AAA(3) of the Crimes Act is a firm barrier standing in the way of characterising Commonwealth legislation as imposing a duty, its operation is not absolute. One limit upon its operation is that it only applies to a law of the Commonwealth ‘relating to criminal matters’.Footnote 81 A second limit is found in s 4AAA(6A), which provides that ‘a rule set out in this section does not apply if the contrary attention appears’. In O’Donoghue, the joint judgment rejected a submission that the rule in s 4AAA(3) did not apply, by virtue of s 4AAA(6A), because s 19(1) evinced a ‘contrary intention’ to its application, particularly from the use of the word ‘shall’.Footnote 82 Their Honours thought it was necessary to consider the functions imposed under Pt II of the Extradition Act as a whole,Footnote 83 and concluded that no contrary intention could be found from those provisions requiring magistrates to exercise functions if certain ‘conditions precedent or jurisdictional facts be satisfied’.Footnote 84 For there to be a contrary intention, the Extradition Act would ‘need to spell out that a State magistrate is obliged to accept the obligation to perform the functions of a magistrate under the Act’.Footnote 85
A similar outcome was reached by the majority (Kiefel CJ, Gageler and Gleeson JJ, Jagot J relevantly agreeing on this issue) in Huynh.Footnote 86 How the anti-commandeering doctrine was invoked in the context of state legislation will be discussed below, but relevant for present purposes is their Honours’ consideration of whether the impugned law imposed a duty. Division 3 of Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘CAR Act’) provides an avenue for inquiry into criminal convictions and sentences, which sits outside of appellate review by a court of criminal appeal.Footnote 87 Section 78(1) provides that ‘[a]n application for an inquiry into a conviction or sentence may be made to the Supreme Court’, and s 79(1) provides that, ‘[a]fter considering an application under s 78 or on its own motion’, the Supreme Court ‘may’ either direct that an inquiry be conducted by a judicial officer into the conviction or sentence’ (sub-s (a)) or ‘refer the whole case to the Court of Criminal Appeal’ (sub-s (b)). Mr Huynh made an application under s 78 for review of his conviction, which was subsequently dismissed on the merits by Garling J.Footnote 88 His Honour was exercising the jurisdiction of the ‘Supreme Court’ pursuant to s 75, which provision provides that the jurisdiction of the ‘Supreme Court’ is to be exercised ‘by the Chief Justice or a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction’. Before the High Court, a question arose: was Garling J under a ‘duty’ to entertain Mr Huynh’s application? The majority concluded that Garling J ‘did not come under any enforceable obligation to entertain Mr Huynh’s application by virtue of the authorisation under s 75 or by virtue of the application being allocated to him’.Footnote 89 Rather, his Honour made ‘a choice’ to entertain an application.Footnote 90 Central to this conclusion was s 79(3),Footnote 91 which provides an unfettered power by which ‘the Supreme Court may refuse to consider or otherwise deal with an application’.
O’Donoghue and Huynh illustrate that the question of whether legislation imposes a duty is one of statutory construction: the statute must show that a state statutory officer is obliged to exercise a power or function. Yet the constructions adopted in O’Donoghue and Huynh raise one notable complexity. When legislation purports to confer a power or function upon a class of state officer, such as ‘a Judge of the Supreme Court’, the function must be allocated to a member of that class by those responsible for allocating those duties, which is often facilitated by an independent statutory process.Footnote 92 If the function is allocated, then it may be accepted that the particular officer may be compelled to complete the task or exercise the power. But a person could not compel a particular state officer to whom the task had not been allocated to complete the task or exercise a power.Footnote 93 This means that legislation that confers a power or function will not, immediately by virtue of that Act, confer an enforceable obligation on a particular officer (ie, confer a ‘duty’). This appears to have been the view adopted by Branson J, which was endorsed by Gleeson CJ in O’Donoghue: s 19(1) of the Extradition Act identified the role which was to be performed by a magistrate, but it was the statutory allocation mechanism that identified who was to exercise that role in a particular case.Footnote 94 It would, however, be a curious result if the character of a statutory function or power could change depending on whether or not it has been allocated by an entirely separate statutory process. The question must surely be capable of being answered by construing the legislation which confers the power or function. The better approach, which is consistent with the independence of the two statutory processes, is to consider whether the relevant statute imposes an enforceable obligation independent of any mechanism of allocation. On this approach, if, once the function is allocated, a state officer could be compelled to complete the task or exercise the power, then a ‘duty’ will exist.
Finally, there is the argument, alluded to earlier, that the anti-commandeering doctrine may apply to preclude the imposition of mere powers (or functions) upon state statutory officers.Footnote 95 The essence of a ‘power’ in this context is that the exercise of the power is not mandatory, either because the recipient may choose not to accept the conferral of the power or function (as in O’Donoghue), or because the recipient may choose not to exercise the power or function so conferred (as in Huynh). But it is difficult to see how the ability of a state to function as a government is impaired by the conferral upon a statutory office holder of a power which need not be exercised.Footnote 96 More is needed. A duty, on the other hand, is a power or function that must be exercised. The compulsion of state statutory officials and agencies at the hand of the Commonwealth, irrespective of the nature of the power or function conferred, falls foul of the Commonwealth Constitution. It ‘curtails or interferes with the operations’Footnote 97 of a state by adding mandatory obligations upon such officers or agencies, whose functions are ordinarily to be exhaustively contained in the statute which establishes it.Footnote 98 In short, it places those state agencies and officers ‘in the position of subjects of the Commonwealth’.Footnote 99 That is not to say that the conferral of a mere power may not infringe the Melbourne Corporation principle. But it will not be a per se breach. Rather, a case-by-case assessment of the curtailment must be undertaken.
B. Statutory office holder
The limitation has been proposed as applying to ‘the holder of a State statutory office’, as opposed to simply a ‘State officer’.Footnote 100 The distinction is important. A statutory office holder, as the name suggests, holds an office created by statute, to which duties and functions are specifically assigned by way of legislation, for example, a judicial officer,Footnote 101 a Solicitor-General,Footnote 102 or a corruption commissioner.Footnote 103 A ‘State officer’ is simply a person who carries out the duties and functions assigned to a body or person by legislation, for example, an associate to a judicial officer, a government lawyer, or a staffer to a Minister. There has been little attention paid to the significance of this confinement. The only member of the High Court to note the distinction was Gleeson CJ in O’Donoghue, who found it unnecessary to pursue the question any further.Footnote 104 Yet it is particularly interesting when one considers that the US anti-commandeering doctrine applies more broadly. In Murphy, Alito J noted that ‘th[e] rule applies … not only to state officers with policymaking responsibility but also to those assigned more mundane tasks’.Footnote 105 This would seem to follow from the constitutional rationale of dual sovereignty that underpins the US doctrine: ‘because states are sovereign over their own executive officers, any federal commandeering would violate state sovereignty’.Footnote 106
It is doubtful that a similar position would be taken in the Australian context, at least insofar as it would amount to a per se breach of the Melbourne Corporation principle. That is because it is difficult to conclude that, in every case, the conscription of a state officer would impair the state’s ability to function as a government, as opposed to merely affecting the ‘ease’ of a state’s functioning.Footnote 107 As Moorhead has noted, ‘the effect of commandeering State personnel is not to undermine the “constitutional integrity of the States” in every instance’.Footnote 108 This was explained by the joint judgment in O’Donoghue:
The proposition put to one side [in Austin] was that it is critical to the constitutional integrity of the States that they alone have the capacity to give directions to their officials and determine what duties they perform. Acceptance of such a proposition could lead to the invalidity of federal laws which merely affected the ease with which the States exercised their constitutional functions, rather than impaired the exercise of those functions.Footnote 109
That said, outside of a per se breach, it stands to reason that the anti-commandeering doctrine could theoretically extend to the imposition of duties on state officers, rather than only those holding statutory office. This extension, however, would rely on there being an established impairment of the state body politic or independence so as to activate the Melbourne Corporation principle. It would require a bespoke analysis of the relevant impairment on a case-by-case basis.
The position differs with state statutory office holders. The status of the office affected – namely, one that has been statutorily created and vested with specific functions by Parliament – effectively elides the need for an assessment of the degree of impairment. As Stephen Gageler SC, as he then was, noted in argument before the High Court in O’Donoghue:
a statute creating an office is ordinarily to be construed as requiring the holder of that office to have and to exercise only those functions, whether they be powers or duties, that the Parliament creating the office has chosen to vest in it.Footnote 110
Federal compulsion of a state statutory office holder therefore represents an inevitable constitutional overreach by its very nature. This reasoning is important for a further reason. As both Kristen Walker and Graeme Hill SC have observed,Footnote 111 although the doctrine has been proposed as applying to ‘the holder of a State statutory office’ (ie, a natural person), this reasoning applies equally to state agencies or bodies that are created, and vested with powers and functions, by statute.Footnote 112
C. State legislative approval
The final practical aspect of the doctrine relates to the effect of state consent to any federal commandeering. This is not an issue that has been fully explored in the US decisions,Footnote 113 seemingly because the cases focus more on the federal law exceeding constitutional power which arguably represents a constitutional obstacle even in the face of sub-national acquiescence.Footnote 114
There is an academic consensus that no issue of constitutional immunity should arise where a state Parliament has agreed to the conferral of duties by Commonwealth law.Footnote 115 As Professor Zines has said, that power may be understood as implied or inherent in the Constitution.Footnote 116 But what if a state consents to the conferral of a duty by way of executive agreement? Although neither O’Donoghue nor Huynh rejected this possibility,Footnote 117 there is no principled basis for enabling executive agreement to consent to the conferral of duties on state statutory office holders or statutory bodies. An appreciation of the source of authority makes it plain that legislative approval is required: because the state legislature is the organ that has established the statutory office or body, its consent is needed.Footnote 118 As Gageler SC noted in argument during O’Donoghue, ‘[t]he Executive simply has no executive power … to add to the functions of a statutory office in the same way as the Executive has no power, statutory or otherwise, to alter the content of any other law made by the legislature’.Footnote 119 If further support were needed for this position, principles of representative and responsible government ‘make[] it desirable to ensure that any consent is enshrined in legislation’.Footnote 120
The corollary of this reasoning is that if a duty is imposed upon a ‘State officer’, who does not hold statutory office, then mere state executive agreement is sufficient to ameliorate any constitutional concerns.Footnote 121 Although, as argued above, any commandeering in this context would not operate as a per se breach of the Melbourne Corporation principle.
D. Limited role; some examples
Overall, there is some room for the anti-commandeering doctrine to operate in Australia in situations where a Commonwealth law seeks to trench on state governmental actors, outside of the Commonwealth Constitution’s contemplation of such burdens. However, if the doctrine is to operate as a ‘bright-line’ rule – that is, a per se breach of the Melbourne Corporation principle – then it has been argued that there must be (i) the imposition of an administrative ‘duty’ on (ii) a state statutory office holder or statutory body, where (iii) this has not been acquiesced to by the relevant state legislature. Contrary to this view, Moorhead has argued that the anti-commandeering doctrine could not operate as a bright-line rule. The gravamen of his argument was that the commandeering of ‘State officers may or may not be repugnant to the federal structure of the Constitution, depending on the operation of the law’.Footnote 122 But that view was expressed prior to the developments in O’Donoghue, which saw a refinement of the proposed implication from ‘State officers’ to ‘State statutory office holders’.Footnote 123 As argued above, refined in this way the doctrine overcomes what Moorhead saw as the fatal flaw in its operating as a bright-line rule.
This does not foreclose the potential expansion of the doctrine to ‘State officers’. Nor does it preclude its applicability in circumstances where a mere power (or function) is conferred. But in those circumstances the anti-commandeering doctrine cannot operate as a bright-line rule which results in invalidity in every instance. Rather, a bespoke analysis would be undertaken into whether there is the requisite impact on state functioning. In other words, those broader conceptualisations would simply fall within the standard Melbourne Corporation inquiry. For that reason, the doctrine stands to have its greatest utility operating as a per se breach, though its ambit is accordingly narrower. To make good that final proposition, it is appropriate to consider some examples of Commonwealth legislative provisions currently on the statute books to which it could extend.
To ensure the smooth running of the federation there are numerous examples where Commonwealth duties are imposed on state statutory office holders but where state legislation authorises such duties. This ‘mirror’ legislation, as described by Kirby J in O’Donoghue,Footnote 124 short-circuits the need for further inquiry. For instance, while the Telecommunications (Interception and Access) Act 1979 (Cth) provides for duties to be imposed on an ‘eligible authority’ of a state, which includes Crime Commission and Police agencies at the state level,Footnote 125 there is state mirror legislation in place providing for recording and reporting obligations to be met in compliance with s 35 of the Telecommunications Act.Footnote 126 For example, s 35(1)(e) of the Telecommunications (Interception and Access) Act 1979 (Cth) requires the ‘responsible [state] Minister to give to the [Commonwealth] Minister’ a written report relevant to the eligible authority’s activities. The corresponding South Australian legislation then provides by s 6 of the Telecommunication (Interception) Act 2012 (SA) that:
The Attorney-General must, as soon as practicable after receiving a report under this Act, give a copy of the report to the Minister responsible for the administration of the Commonwealth Act.
There are also a number of legislative examples where Commonwealth legislation contemplates state consent being granted before a Commonwealth power or function is assigned to a state office holder.Footnote 127 One such example is the Water Act 2007 (Cth) which indicates in s 134(2) that:
The Director of Meteorology may, by writing, delegate any or all of his or her functions and powers under this Part to a person who holds, or acts in, an office or position:
(a) with a State or a Territory, or an authority of a State or a Territory; and
(b) at a level equivalent to that of an SES employee;
if the State, Territory or authority agrees to the delegation.
Alternatively, cooperative federalist schemes also see shared authority and delegation from the Commonwealth to the states as feasible where there is jurisdictional agreement.Footnote 128 Thus, while each of these federal laws may impose a duty upon state statutory office holders, there is state legislative authorisation for the conferrals.
Commonwealth provisions conferring functions upon a class of state judicial officer generally foreclose commandeering by making it clear that no ‘duty’ is imposed by reason of the function or power being a valid persona designata conferral, such that the judicial officer must consent to its conferral. Section 4AAA of the Crimes Act for example provides that non-judicial functions conferred on state or territory judges or magistrates or Justices of the Peace in criminal matters ‘employed in a State or Territory court’ are personally conferred and that the ‘person need not accept the power or function conferred’.Footnote 129 Similarly, some Commonwealth provisions are drafted seemingly aware of the potential constitutional risk of Commonwealth overreach. For example, s 592(1) of the Telecommunications Act 1997 (Cth) provides:
A power conferred by this Act must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory or the Australian Capital Territory.
A Commonwealth law that looks more like commandeering arises in in the delegation of fisheries responsibilities. The Fisheries Administration Act 1991 (Cth) permits the CEO of the Australian Fisheries Management Authority to sub-delegate functions to an ‘officer’ under that statute which is defined to mean ‘a member of the State or Territory police force’.Footnote 130 However, such a delegation upon members of the state police force would fall short of a per se breach by reason of their not being state statutory office holders. A better example might therefore be the Surveillance Devices Act 2004 (Cth) which, in s 55(1), requires the Commonwealth Ombudsman to ‘inspect the records of a law enforcement agency to determine the extent of compliance’ with the Act. Section 6A defines ‘law enforcement agency’ to include state agencies, including Corruption and Crime Commissions and Police services. Then, under s 55(4), the ‘Chief Officer’ of the ‘law enforcement agency’, such as the Police Commissioner or Commissioner of the Crime Commission, is required to ensure that the agency staff provide the Ombudsman with ‘any assistance the Ombudsman reasonably requires’. Should there be no state legislative approval for such cooperation, this conferral upon a state statutory officer holder could represent an example of a violation of the anti-commandeering doctrine.
This brief survey of the Commonwealth statute book reveals that the ambit of the anti-commandeering doctrine, as a per se breach of the Melbourne Corporation principle, may be limited. This is hardly surprising. As Dixon J famously remarked: ‘In a dual political system you do not expect to find either government legislating for the other.’Footnote 131 This observation has even greater force in the context of the Commonwealth imposing enforceable obligations upon state officers or agencies which are established and vested with functions by statute. State legislatures, on the other hand, may more readily impose duties upon its statutory office holders or statutory bodies. The next Part of this article turns to consider how the anti-commandeering doctrine may have relevance in that context, in light of the High Court’s recent decision in Huynh.
IV. A new angle? Preventing state laws from applying as laws of the commonwealth
The anti-commandeering doctrine has been proposed as a limit on Commonwealth legislative power. However, the doctrine was invoked in the context of state, not federal, legislation in Huynh. The cogent submissions put forth by the Victorian Attorney-General in that case highlight how the anti-commandeering doctrine came to have potential relevance in this unlikely context.
A. Attorney-General (Cth) v Huynh
One of the central questions in Huynh was whether ss 78 and 79 of the CAR Act apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth by force of s 68(1) of the Judiciary Act 1903 (Cth) (‘Judiciary Act’).Footnote 132 Section 68(1) operates to apply to ‘persons who are charged with offences against the laws of the Commonwealth’, in respect of whom jurisdiction is invested in state or territory courts under s 68(2), state (or territory) laws that apply to persons charged with state offences which answer the description of laws ‘respecting’ one or more of six designated categories of criminal procedure outlined in s 68(1).Footnote 133 These categories include, for example, the laws ‘respecting … the procedure for … the hearing and determination of appeals arising out of [a] trial or conviction or out of any proceedings connected therewith’.Footnote 134 In so doing, s 68(1) picks up state law and applies it as a law of the Commonwealth.Footnote 135 However, s 68(1), by its terms, will only apply state laws ‘so far as they are applicable’. The High Court has held that this qualification means that s 68(1) does not pick up and apply the text of a state law to the extent that in so applying as a Commonwealth law it would be inconsistent with the Commonwealth Constitution.Footnote 136 That is, state law will not apply as Commonwealth law if it would be contrary to the constitutional limits on Commonwealth legislative power, such as the Melbourne Corporation principleFootnote 137 or acquiring property on other than just terms.Footnote 138 In accordance with these principles, the Victorian Attorney-General submitted that s 68(1) may be prevented from picking up and applying ss 78 and 79 of the CAR Act. This is because, if picked up and applied, those provisions would infringe ‘one or perhaps two limitations on Commonwealth legislative power’,Footnote 139 with one of those limitations being the anti-commandeering doctrine.Footnote 140 As discussed above, a majority of the Court held that those provisions did not confer a ‘duty’, such that it was unnecessary to consider whether any anti-commandeering doctrine was infringed.Footnote 141 However, Victoria’s submissions show that the anti-commandeering doctrine may have room to operate in the context of state legislation, as opposed to Commonwealth legislation.
At least two queries arise from the invocation of the anti-commandeering doctrine in Huynh. First, given that laws to which s 68(1) are directed will be laws ‘relating to criminal matters’, it may be thought that s 4AAA(3) of the Crimes Act applies to work powerfully against a finding of commandeering. However, there is good reason to suspect that s 4AAA would not have this effect in the context of s 68(1) of the Judiciary Act. This was alluded to by Basten JA in the Court of Appeal decision of Huynh.Footnote 142 Although his Honour did not precisely explain why this may be so, a persuasive reason was given by the Victorian Attorney-General in Huynh. It was submitted that the issue is a temporal one: the result of the law imposing a duty, and the anti-commandeering doctrine thus being infringed, is that the state law is not picked up.Footnote 143 Therefore, ‘[t]he translation of the State law into Commonwealth law simply will not occur.’Footnote 144 Accordingly, there is no ‘law of the Commonwealth’ to which s 4AAA(1) speaks, and the rule in s 4AAA(3) is incapable of applying.
Secondly, it might be thought that invoking the anti-commandeering doctrine in the context of state legislation is at odds with its basis: how can it be said that aspects of our federalist system are undermined when a state has itself enacted legislation which confers the particular function? Put in more practical terms, has the state Parliament not itself authorised the imposition of the duty by enacting the legislation in which the duty is found? There is force to this. However, the objection overlooks the fact that s 68(1) of the Judiciary Act translates the text of the state law into a law of the Commonwealth. Once this is properly appreciated it is entirely consistent with the doctrine’s rationale for it to preclude the state law applying. To be otherwise would, in effect, permit s 68(1) to exceed Commonwealth legislative power.Footnote 145
B. Limited scope
At first blush, it might be thought that Huynh provides ample room for the doctrine to work in this context. However, the tight confines of common application provisions may mean this scope is much narrower.
Section 79(1) of the Judiciary Act is the most well-known application provision. It provides that ‘the laws of each State or Territory’ shall ‘be binding on all Courts exercising federal jurisdiction in that State … in all cases to which they are applicable’, ‘except as otherwise provided by the Constitution or the laws of the Commonwealth’. The express qualification means that s 79(1), like s 68(1), will not pick up and apply state laws to the extent that in so applying as a Commonwealth law it would be contrary to the Commonwealth Constitution.Footnote 146 This might be thought to open the door for the anti-commandeering doctrine to operate. But, as Kiefel CJ, Gageler and Gleeson JJ emphasised in Huynh, there are ‘important differences’ between the purposes and operations of ss 68(1) and 79(1).Footnote 147 Section 68(1) picks up and applies state laws ‘to persons who are charged with offences against the laws of the Commonwealth’. Section 79(1), on the other hand, is directed to courts: it makes the laws of each state ‘binding on all Courts exercising federal jurisdiction in that State’. In Huynh, Kiefel CJ, Gageler and Gleeson JJ explained that this difference in focus stems from a difference in purpose. Section 68(1) is concerned with picking up aspects of state criminal procedure, so as to ensure that ‘federal criminal law is administered in each State upon the same footing as State law and [to avoid] the establishment of two independent systems of justice’.Footnote 148 However, as was explained in Rizeq v Western Australia (‘Rizeq’), s 79(1)’s purpose is narrower: it is confined to filling the gap in the applicable law in federal jurisdiction that exists by reason of an absence of state legislative power to regulate or govern the exercise of federal jurisdiction.Footnote 149 In accordance with this purpose, Rizeq clarified that s 79(1) is concerned only with state laws which regulate the exercise of jurisdiction,Footnote 150 meaning laws which are directed towards courts and the powers they require to hear and determine matters.Footnote 151 Section 79(1) thus ‘operates only where there is already a court “exercising federal jurisdiction” … [t]he section is not, for example, directed to the rights and liabilities of those engaged in non-curial procedures under State laws’.Footnote 152
In its function in picking up and applying state laws that confer functions or powers on a court, s 79(1) of the Judiciary Act is an exercise of the legislative power conferred on the Commonwealth Parliament by ss 51(xxxix) and 77(iii) of the Commonwealth Constitution.Footnote 153 However, the anti-commandeering doctrine will not operate if there is something in the subject matter, content or context of a particular head of Commonwealth legislative power that indicates that the doctrine should not apply.Footnote 154 As has been explained above, s 77(iii) of the Commonwealth Constitution is of this nature, in providing that the Commonwealth Parliament may make laws investing state courts with federal judicial power.Footnote 155 The anti-commandeering doctrine cannot, therefore, extend to limiting the imposition of duties upon judicial officers in their capacity as a court, for s 77(iii) expressly contemplates this possibility.Footnote 156 Given that s 79(1) of the Judiciary Act is only concerned with laws that regulate or govern a court’s exercise of jurisdiction, it follows that the anti-commandeering doctrine is unlikely to have a role to play in preventing state laws from being picked up by s 79(1).
The position differs with respect to s 68(1) of the Judiciary Act. Because s 68(1) is directed to persons charged with federal offences,Footnote 157 it is not confined to laws regulating the exercise of federal judicial power by courts. In other words, as Edelman J has explained, s 68(1) ‘is not merely concerned with the judicial processes governing or regulating the jurisdiction of a court. It is also concerned with anterior and posterior process’.Footnote 158 The clearest express example in s 68(1) being laws ‘respecting the arrest and custody of offenders or persons charged with offences’. Section 68(1) may, therefore, pick up state laws that confer non-judicial functions on bodies that are not courts.Footnote 159 That is why s 68(1) could operate to pick up ss 78 and 79 of the CAR Act in Huynh, which conferred a non-judicial function on a judicial officer persona designata.Footnote 160 Consequently, the same constitutional impediments that exist in the context of s 79(1) of the Judiciary Act may – but will not always – be present in the context of s 68(1).
Although it is possible for the anti-commandeering doctrine to operate in the context of s 68(1), it is difficult to conceive of many instances where that will be so. Many laws that fall within the ambit of s 68(1) relate to criminal procedure in relation to judicial proceedings,Footnote 161 such that they are likely to regulate the exercise of jurisdiction by courts.Footnote 162 And those that operate outside of curial proceedings may preclude the doctrine’s application in other ways: s 120 of the Constitution appears to expressly permit commandeering of the states in relation to laws respecting the ‘custody of offenders or persons charged with offences’, which is one of the six categories of criminal procedure in s 68(1); whereas it is difficult to find examples of commandeering upon state statutory office holders or statutory bodies (in the per se breach sense) in the context of state laws respecting other categories of criminal procedure such as ‘the arrest … of offenders or persons charged with offences’.Footnote 163
Thus, although Huynh illustrates a new potential for the anti-commandeering doctrine, its scope appears to be limited in the context of ss 68(1) and 79(1) of the Judiciary Act. Those provisions are not the only federal provisions which purport to pick up and apply state laws.Footnote 164 It may be that some of these other provisions have an operation which allows the anti-commandeering doctrine to operate. However, this issue is beyond the scope of this article.Footnote 165 This Part has simply served to highlight that the anti-commandeering may have relevance in the context of preventing state laws from being picked up and applied as laws of the Commonwealth.
V. Conclusion
Australian constitutional law inevitably invokes its fair share of crystal ball gazing. Such gazing suggests that the High Court may indeed be called on in the future to determine the applicability of the anti-commandeering doctrine in the Australian constitutional context. The doctrine’s extension to Australia would seem to be in step with the intergovernmental immunity doctrine in acting as a limit on Commonwealth laws to protect the ability of the states to operate as key players within the federation.
It has nevertheless been opined that embracing an anti-commandeering doctrine in Australia would ‘not … add[] very much to the analysis’.Footnote 166 If the doctrine were to embrace the imposition of mere powers or functions (without the duty to perform), or to extend to non-statutory state officers, then this is undoubtedly true. It would require a consideration of the particular impairment upon the state’s functioning in every case, thus wholly overlapping with the standard Melbourne Corporation analysis. However, the doctrine has much to add if it is confined in its application to the levelling of an administrative duty upon a state statutory office holder or statutory body, in the absence of this being contemplated by the Commonwealth Constitution or the relevant state legislature. That is because, it has been argued, the imposition of enforceable obligations upon state statutory office holders or statutory bodies represents an inevitable constitutional overreach in the Melbourne Corporation sense. This confined operation therefore means the doctrine can operate as a bright line rule, obviating the requirement for undertaking a case-by-base analysis of the curtailment or impairment of the state’s functioning. There is a significant advantage to this approach because, as Graeme Hill has noted, ‘it is difficult if not impossible for the courts to assess whether a Commonwealth law actually undermines the functioning of the States as governments’.Footnote 167
To the extent that anti-commandeering is accepted as a limit on Commonwealth laws in Australia, the US anti-commandeering jurisprudence is likely to have some influence on the High Court’s development of the doctrine’s boundaries. For example, recent US decisions like Murphy, suggest that it may not matter that a federal law imposes a negative obligation or prevents a state from doing something as opposed to compelling an affirmative act.Footnote 168 Other decisions have held that federal laws that apply ‘evenhandedly’ to states and private citizens will not easily implicate the doctrine.Footnote 169 However, much is also likely to be shaped by Australia’s distinct constitutional framework, as shown by the jurisdictionally complex potential that Huynh has revealed. Regardless, to the extent that there is an Australian future for the anti-commandeering doctrine, the Australian states may well have another, albeit limited, string to their bow in the battle against Commonwealth-state incursion.
Acknowledgements
The authors would like to thank the comments of others on this article, including Stephen McDonald SC (as he then was), although all errors remain our own. The views expressed in this article are those of the authors and do not reflect the views of our employers.
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