Opinion Number. 1785

Subject

STATE CROWNWHETHER NATIONAL SECURITY (REINSTATEMENT IN CIVIL EMPLOYMENT) REGULATIONS BIND THE CROWN IN RIGHT OF A STATE: POLICY ISSUES RELEVANT TO WHETHER NATIONAL SECURITY (REINSTATEMENT IN CIVIL EMPLOYMENT) REGULATIONS SHOULD BE AMENDED TO BIND STATE CROWN EXPRESSLY

Key Legislation

NATIONAL SECURITY (LANDLORD AND TENANT) REGULATIONS: NATIONAL SECURITY (RE-INSTATEMENT IN CIVIL EMPLOYMENT) REGULATIONS

Date

Since the foregoing paragraphs were written1 the High Court has given judgment in Gulson’s case under the Landlord and Tenant Regulations.2 The Court held by majority (Rich, Stark and Williams JJ., Latham C.J. and McTiernan J. dissenting) that those Regulations do not bind the Crown in right of a State, in the absence of express words purporting to do so.

(2)  The Commonwealth’s intervention in Gulson’s case has not succeeded in obtaining an authoritative statement of the principles to be applied in these matters. If anything, the law is now more obscure than before.

(3)  On the question whether the rule laid down in Sutton’s case3 should now be followed, the Court was equally divided. Rich and Williams JJ. rejected the rule laid down in Sutton’s case as inconsistent with authorities of greater weight, while Latham C.J. and McTiernan J. adhered to and applied it. Starke J. expressed no opinion on the point.

(4)  There is no decision of the Court in Gulson’s case on the rule laid down by a majority of the Court in Sydney Harbour Trust Commissioners v. Ryan.4 The views expressed by Griffith C.J. in Ryan’s case were discussed only by Williams J. (with whom Rich J. agreed) who said that the ancient maxim of interpretation must apply for the protection not only of any prerogative but also of any Crown property.

(5)  In Gulson’s case, there is no attempt to consider whether the legislation in question fell within any of the general exceptions to which the maxim of construction is usually stated to be subject.

(6)  Starke J. deduced from certain expressions in the Regulations which would be inapt if applied to the Crown that the Regulations on their face disclosed an intention not to bind the Crown.

(7)  Speaking broadly, I think the decision in Gulson’s case strengthens the conclusions stated in paragraph 21 above. Gulson’s case shows pretty clearly that merely general words in a National Security Regulation will not suffice to make the Regulation binding upon the Crown in right of a State.

(8)  I do not think any secure distinction in this regard can be drawn between the Landlord and Tenant Regulations and the Re-instatement in Civil Employment Regulations.

(9)  If it is desired to make these Regulations expressly binding on the Crown, two questions of policy will arise. The first is whether there should be any prior consultation with the States. The second is whether the States should be bound in respect both of their governmental and their industrial employees.

[Vol. 37, p. 277]

1 No ‘foregoing paragraphs’ have been found.

2 Minister of Works for Western Australia v Gulson [1944] HCA 27; (1944) 69 CLR 338.

3 R v Sutton [1908] HCA 26; (1908) 5 CLR 789.

4 [1911] HCA 64; (1911) 13 CLR 358.