Commonwealth v Western Australia and the operation in federal systems of the presumption that statutes do not apply to the Crown

Abstract

The presumption that statutes do not bind the Crown exempts the executive from obeying laws enacted by the legislature unless the latter rebuts the presumption. This exemption operates either in a non-federal context (if, for example, both legislature and executive belong to the polity of an Australian State) or in a federal context (for example, the State government seeks exemption from a Commonwealth statute). Previous criticisms of the presumption have failed to distinguish between these two contexts. But the presumption is defensible in the federal context, and indeed plays a significant role in ensuring that consideration is given to states’ interests before the federation enacts legislation affecting them. This has been recognised by Canadian and United States courts. The High Court of Australia should recognise this too, and may be doing so.