Case: Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority [1997] HCA 36 ; (1997) 190 CLR 410
Outcome: discussed
Secondly, subject to s 109 of the Constitution and the impairment of capacities doctrine, in the words of Brennan CJ in Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority (Henderson's Case) [1997] HCA 36 ; (1997) 190 CLR 410 at 427: "... there is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter." See also per Dawson, Toohey and Gaudron JJ at 445-447. 26 In Tasmania, as in all Australian States and Territories, the Commonwealth in its various manifestations is a highly pervasive presence. Discrimination is, as a matter of reality, committed by people, not abstract entities. In Tasmania at any one time there would be many people acting in a myriad of areas on behalf of the Commonwealth in situations where discriminatory conduct could occur. Apart from the Tasmanian capacity, the Crown's capacity in the right of the Commonwealth is, of all the Crown's capacities, the one most likely to be exercised in Tasmania, as the Tasmanian Parliament would be well aware. It is unlikely that the Parliament was too concerned with the Crown in the right of Saskatchewan or Bermuda. There is no logical reason to impute to the State Parliament an intention not to bind the Commonwealth, insofar as it has the power to do so, in relation to this important area of social policy. 27 Turning to the text of the Act, since s 4 provides expressly that the Crown in the right of Tasmania is bound, the Crown, at least in that capacity, must be a "person" for the purposes of s 16. The applicants submitted that the intention of the Parliament was to ensure that a respondent to a complaint had "legal personality and capacity". Thus, the argument went, the "person" must therefore be "a natural person, corporation or some other body such as a body politic or entity with legal capacity". I do not agree. In legal discourse, "person" often is confined to a natural person or some entity on which the law confers legal personality, such as a corporation. However, in the present case those drafting the Act have been at pains to ensure that "person" is not so limited. The term is defined to include an "organisation". The ordinary meaning of "organisation" extends to all sorts of bodies, such as unincorporated associations, clubs or government departments, which strictly speaking do not have legal personality. 28 Such a construction is consistent with the policy of the Act. The areas of activity in which discrimination may occur which are enumerated in s 22 include some in which it would be expected that unincorporated bodies such as clubs would be substantially involved. 29 The applicants argued that certain powers conferred on the Tribunal by s 89, such as orders for re-employment (s 89(1)(c)) or orders for payment of a fine (s 89(1)(e)) could not have been intended to apply to the Commonwealth. 102 There is a distinction between, on the one hand, the capacities of the Crown in the right of the Commonwealth and, on the other hand, the exercise of those capacities. State legislation cannot modify the nature of the executive power vested in the Crown in the right of the Commonwealth but it can regulate activities in which the Crown may engage in exercise of those activities. The distinction is discussed by Dawson, Toohey and Gaudron JJ in Henderson at 438-448. Their Honours noted at 444 that the laws of the land are not confined to the laws of the Commonwealth but include the common law and the statute law in force in each of the States. Thus in Pirrie v McFarlane [1925] HCA 30 ; (1925) 36 CLR 170 a person acting in the course of his duties as a member of the RAAF was held to be bound by the provisions of a Victorian Act requiring him to hold a driver's licence when driving a vehicle on a public highway.