2010 Canberra L. Rev. 1 (2010)

handle is hein.journals/canbera2010 and id is 1 raw text is: Canberra Law Review (2010) 1

IMMUNITY OF THE CROWN FROM STATUTE AND SUIT
ANTHONY GRAY*
I INTRODUCTION - THE POSITION OF THE CROWN IN LAW
The legal position of what we call the Crown         has been considered over many
centuries, spanning periods during which the notion of the Crown evolved from the
monarch to something much broader, and the role of the monarch in law-making
greatly minimised. The issue of the extent to which the Crown is bound by statute has
been contentious. As we will see, various formulations of the immunity have found
favour with the judges. For the sake of simplicity, I will refer to two main
formulations; (a) a narrow view of Crown immunity, confining the immunity to
legislation affecting what we call Crown prerogatives;2 and (b) a broader view of
Crown immunity, meaning an immunity from all kinds of legislation. A separate but
related question is the extent to which the Crown could be subject to civil actions,
most especially claims in contract and tort. The issue of Crown immunity remains a
live one, considered (in the context of derivative Crown immunity) by the High Court
of Australia in the 2007 decision Australian Competition and Consumer Commission
v Baxter Healthcare Pty Limited.3 I will focus this article on the broader question of
Crown immunity rather than the offshoot question of derivative Crown immunity.
Associate Professor, School of Law, University of Southern Queensland.
A precise definition of the Crown is elusive - Tom Cornford calls the concept of the Crown 'deeply
ambiguous': 'Legal Remedies Against the Crown and its Officers' in Maurice Sunkin and Sebastian
Payne (eds) The Nature of the Crown: A Legal and Political Analysis (Oxford University Press, 1999)
233; George Winterton states that in the monarchies of the British Commonwealth, the Crown is
shorthand for executive government: Parliament, The Executive and The Governor-General
(Melbourne University Press, 1983) 207; Nick Seddon in 'The Crown', (2000) 28 Federal Law Review
245 says the concept is abstract but could be used (in Australia) to describe ten bodies politic as legal
entities (247-248).
2 These will be defined later - however there is a great divergence of views on the meaning of
'prerogative' in this context - the so-called Wade or Blackstone 'minimalist' view, that these powers
mean only those powers peculiarly applicable to a sovereign, and the broader conception advanced by
Dicey that it means powers exercisable by the executive government (see for example Council of Civil
Service Unions v Minister for the Civil Service [1985] AC 374, 409-410). Evatt's categorisation of
prerogatives into three types (The Royal Prerogative (Law Book Co, 1987) 30-31) is discussed later in
the paper.
3 (2007) 232 CLR 1; derivative immunity is the extent to which bodies dealing with the Crown are
entitled to the same immunities and privileges as the Crown enjoys. More detailed discussion of
derivative immunity appears in Robertson Wright, 'The Future of Derivative Crown Immunity - With
a Competition Law Perspective' (2007) 14 Competition and Consumer Law Journal 240 and, by the
same author, 'Derivative Governmental Immunity: Lessons from Baxter and the Trade Practices Act'
(2008) 16 Competition and Consumer Law Journal 114.

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