No doubt when a jurisdiction is conferred like that given by sec. 75(iii) and (iv) the source whence the substantive law is to be derived for determining the duties of the governments presents difficulties …
By section 75(iii) and (iv) of the Commonwealth Constitution, the High Court is granted original jurisdiction to hear “matters” between the various Australian governments. As yet, most inter-governmental cases heard by the High Court have been disposed of by interpretation and application of the Constitution, but it is clear that the High Court must have recourse to legal sources outside the Constitution. A study of the cases so far heard by the High Court, the types of disputes that might arise, application of the common law in other areas of law and experience in other federations reveals that the common law is applicable to Australian inter-governmental cases. Not only this, but there exists a body of “inter-state common law” specifically referable to intergovernmental disputes. Strands of this inter-state common law are to be found in the law covering rights of governments and their Attorneys General to sue other governments on behalf of their residents, intergovernmental agreements, nuisance and inter-State water disputes.
