Case: Pirrie v McFarlane [1925] HCA 30 ; (1925) 36 CLR 170
Outcome: cited
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. 103 The present case is concerned with the application of a Tasmanian statute proscribing discriminatory conduct in that State in various areas of activity, including education and training. It is consistent with similar beneficial legislation in other States and Territories and in the Commonwealth itself (which explicitly leaves open resort to State and Territory legislation: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 4(1)). The executive capacity of the Commonwealth will not be impaired by agents such as Mr Smith being required to conduct themselves in accordance with the Anti-Discrimination Act , along with other Tasmanian laws, as the Manual recognises. Certainly this is so in the absence of any express Commonwealth law to the contrary: cf Pirrie at 183. 104 The Anti-Discrimination Act applies to the Commonwealth and its agents. The Act authorises complaints where the person discriminated against has died. Ms Campbell has an arguable complaint in her own right of discrimination contrary to the Act. In conferring on the Anti-Discrimination Tribunal jurisdiction to adjudicate complaints against the Commonwealth the Act does not breach Ch III of the Constitution . The Act is not inconsistent with the Air Force Act or the Cadet Forces Regulations within the meaning of s 109 of the Constitution . The Act does not impair the capacities of the Commonwealth Executive. 105 There will be orders that the application be dismissed and that the applicants pay the respondents' costs, including reserved costs. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 9 February 2006 Counsel for the Applicants: Peter Hanks QC, Kate Eastman and Stephen Donaghue Solicitors for the Applicant: Phillips Fox Counsel for the Second Respondent: Stephen Estcourt QC, Duncan Kerr SC and Greg Barns Solicitors for the Second Respondent: Simmons Wolfgagen Counsel for the State of Tasmania intervening Solicitor for the State of Tasmania Paul Turner Director of Public Prosecutions Dates of Hearing: 6, 7, 8 December 2005 Date of Judgment: 9 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/60.html