The constitutional principle immunising the States from certain kinds of Commonwealth laws traces back, in its current form, to the High Court’s 1947 decision in Melbourne Corporation v Commonwealth. The contours of that principle – known as the State immunity principle or the Melbourne Corporation principle – have never been entirely clear.
However, a measure of certainty followed the Court’s endorsement, through the 1990s, of the formulation contained in the judgment of Mason J in Queensland Electricity Commission v Commonwealth (“QEC”). He framed the principle as comprising 2 elements, or limbs. The first limb, described in terms of discrimination, dealt with Commonwealth laws that singled out States for special burdens or disabilities; the second limb dealt with Commonwealth laws which, while not singling States out, operated so as to destroy or curtail their continued existence or capacity to function.
Constitutional Law | Public Law and Legal Theory
Date of this Version
Amelia Simpson, "State Immunity from Commonwealth Laws: Austin v Commonwealth" (October 2011). University of New South Wales Faculty of Law Research Series 2011. Working Paper 50.