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Published online by Cambridge University Press: 24 January 2025
Pirrie v McFarlane remains an enigmatic case. Decided a few years after the landmark decision of Engineers it reflected an application of the reciprocal nature of the principle applied in that case. The thrust of the decision in Engineers was that the Commonwealth Parliament had power under s 51(xxxv) to make laws binding on the States. In the course of judgment the majority judges had also observed as follows:
The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters, but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of sec. 109.
Coming so soon after Engineers, the decision in Pirrie v McFarlane is clearly consistent with this observation of the majority judges. However, given the subsequent developments in cases such as Cigamatic and Bogle, the authority of Pirrie v McFarlane has been questioned.
1 (1925) 36 CLR 170.
2 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
3 Ibid 155.
4 Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372.
5 Commonwealth v Bogle (1953) 89 CLR 229.
6 See for instance Australian Postal Commission v Dao (1985) 63 ALR I, 17-18 per Kirby P; 34 per McHugh JA.
7 Royal Commission on Australia's Security and Intelligence Agencies: Report on the Sheraton Hotel Incident (1984). Mr Justice Hope was requested to inquire into an incident at the Sheraton Hotel, Melbourne, which arose from a training exercise conducted by the Australian Secret Intelligence Service (ASIS). “It was intended to conduct the Exercise without publicity and without involving persons other than those directly taking part. In the event, members of the public did become involved and it was publicly revealed that the trainees had been carrying weapons, had threatened members of the public with them and had forced an entry into a room of the hotel causing damage to the hotel” (p 2).
8 Ibid 57.
9 (1925) 36 CLR 170, 173-174.
10 It was held by the Police Magistrate that ifs 6 of the Motor Car Act 1915 (Vic) were held to apply to men “carrying out their duties as servants of the Defence Department it would fetter or interfere with the executive powers of that Department”. Thus, in his view, the case was governed by D'Emden v Pedder (1904) 1 CLR 91. Additionally, he held that the provisions of the Act, on its construction, did not apply to persons in the public service of the Commonwealth.
11 The majority comprised Knox CJ, Higgins and Starke JJ. Isaacs and Rich JJ dissented.
12 (1925) 36 CLR 170, 184.
13 Ibid 214.
14 Ibid 229.
15 A description employed by Kirby P in Australian Postal Commission v Dao (1985) 63 ALR 1, 17.
16 (1925) 36 CLR 170, 199.
17 For a discussion of the “affected by” doctrine, see G Donaldson, “Commonwealth Liability of State Law” (1985-86) 16 UWA Law Rev 135.
18 Uther v Federal Commissioner of Taxation (1947) 74 CLR 508.
19 Ibid 528. Dixon and McTieman JJ dissented in Uther. Nevertheless, Dixon, sitting as Chief Justice in Cigamatic, saw his dissenting judgment in Uther adopted by the majority judges in Cigamatic. In Uther, Dixon J provided the following example of the application of the “affected by” doctrine. “For instance, if the Commonwealth contracts with a company the form of the contract will be governed by s 348of the Companies Act.” (1947) 74 CLR 508, 528.
20 Australian Federalism in the Courts (1967) 138.
21 (1953) 89 CLR 229, 260: “The Commonwealth may, of course, become affected by State laws. If, for example, it makes a contract in Victoria, the terms and effect of that contract may have to be sought in the Goods Act 1928 (Vic) “
22 Australian Federal Constitutional Law (3rd ed 1985), 224.
23 Ibid. In the first edition of his book, Professor Howard expressed the opinion that the decision in Pirrie v McFarlane on the immunity point was wrong, but he had changed his mind by the time the third edition was published.
24 Evans, G, “Rethinking Commonwealth Immunity” (1972) 8 MULR 521, 531.Google Scholar
25 Ibid.
26 (1962) 108 CLR 372, 377.
27 Ibid.
28 Ibid.
29 Ibid. See RP Meagher and Gummow, WMC. “Sir Owen Dixon's Heresy” (1980) 54 AU 25Google Scholar, especially at 29 where the authors observed: “[in] truth, the Cigamatic doctrine, in its various formulations, is but a revival in fresh garb of one aspect of the immunity of instrumentalities doctrine, which in both of its operations was discarded in the Engineers' Case.”
30 Hanks, PJ, Australian Constitutional Law (3rd ed 1985) 417.Google Scholar
31 (1962) 108 CLR 372, 390.
32 Ibid 389.
33 (1985) 63 ALR 1.
34 Ibid 30.
35 Ibid 30-31.
36 (1953) 89 CLR 229, 259
37 (1985) 63 ALR 1, 32.
38 Ibid 33. See also M J Detmold, The Australian Commonwealth (1985) 16-20.
39 (1985) 63 ALR 1, 33.
40 Ibid 34.
41 Ibid.
42 City of Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
43 Australian Postal Commission v Dao (1985) 63 ALR 1, 34.
44 (1985) 63 ALR 1, 34-35.
45 (1925) 36 CLR 170, 211.
46 (1961) 1 Tas UL Rev 580.
47 Ibid 583.
48 Ibid 589.
49 Ibid.
50 (1925) 36 CLR 170, 213.
51 Ibid.
52 Ibid 210.
53 The High Court and the Constitution (2nd ed 1987) 322. See also Ronald Sackville, “The Doctrine of Immunity of Instrumentalities in the United States and Australia: A Comparative Analysis” (1969) 7 MULR 15, 45: “This case achieves a satisfactory accommodation of the interests of Commonwealth and States.”
54 There is also the question of how Cigamatic can be reconciled with s 64 of the Judiciary Act 1903 (Cth). The omission by the High Court in Cigamatic to refer to the Judiciary Act 1903 (Cth) puzzled Jacobs and Mason JJ in Maguire v Simpson (1977) 139 CLR 362, at 403-404 and 402 respectively. Jacobs J said “I am conscious of the somewhat curious situation that the effect of the Judiciary Act was not discussed in the reasons for judgement of any member of the court in Cigamatic . . . .”, whilst Mason J observed that “no mention was made of s 64 [in Cigamatic,] although there seems to be no reason why it should not have had an application if it extended to substantive rights”.
In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgement may be given and costs awarded on either side, as in a suit between subject and subject.
The recent decision of the High Court in Evans Deakin Industries Ltd v Commonwealth (1986) 60 AUR 619 reinforcing the view in Maguire v Simpson thats 64 extends to substantive rights, does not resolve the Pirrie v McFarlane enigma. Professor Zines has pointed out that it is difficult to see hows 64 can have anything to say regarding the decision in Pirrie v McFarlane as the case was concerned with a prosecution for a statutory offence and not a “suit” withins 64: Zines, L, The High Court and the Constitution (2nd ed 1987) 327.Google Scholar
55 (1987) 61 AUR 229.
56 As a postscript to this discussion it is interesting to note that the Commonwealth Parliament has recently legislated to confer express immunity on members of the Defence Force from the application of certain State and Territory laws. Section 27 of the Defence Legislation Amendment Act, 1987 (Cth) inserts the following new s 123 in the Defence Act 1903 (Cth):
A member of the Defence Force is not bound by any law of a State or Territory:
(a) that would require the member to have permission (whether in the form of a licence or otherwise) to use or to have in his or her possession, or would require the member to register, a vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth; or
(b) that would require the member to have permission (whether in the form of a licence or otherwise) to do anything in the course of his or her duties as a member of the Defence Force