Australian Constitutional Law Concepts and Cases

This chapter examines an implied limitation on the legislative powers of the Commonwealth and the States known as the ‘intergovernmental immunities doctrine’. The doctrine arises from the fact that the Australian Constitution establishes a Commonwealth government and a series of separately organised State governments and requires their continued existence as independent or separate entities. The intergovernmental immunities doctrine does not create a general immunity of the Commonwealth from State laws or a general immunity of the States from federal laws. Rather, the intergovernmental immunities doctrines gives rise to (1) State immunity from federal laws which operate to destroy or curtail the continued existence of the States or their capacity to function as governments and (2) Commonwealth immunity from State laws which operate to destroy or curtail the continued existence of the Commonwealth or its capacity to function as a government. Whether a law contravenes the intergovernmental immunities doctrine requires an evaluative assessment of a range of factors.