State Immunity from Commonwealth Laws: Austin v. Commonwealth

13 Pages Posted: 26 Nov 2011 Last revised: 7 Feb 2012

Date Written: February 20, 2004


The constitutional principle immunising the States from certain kinds of Commonwealth laws traces back, in its current form, to the High Court’s 1947 decision in Melbourne Corporation v. Commonwealth. The contours of that principle – known as the State immunity principle or the Melbourne Corporation principle – have never been entirely clear.

However, a measure of certainty followed the Court’s endorsement, through the 1990s, of the formulation contained in the judgment of Mason J in Queensland Electricity Commission v. Commonwealth (“QEC”). He framed the principle as comprising 2 elements, or limbs. The first limb, described in terms of discrimination, dealt with Commonwealth laws that singled out States for special burdens or disabilities; the second limb dealt with Commonwealth laws which, while not singling States out, operated so as to destroy or curtail their continued existence or capacity to function.

Suggested Citation

Simpson, Amelia, State Immunity from Commonwealth Laws: Austin v. Commonwealth (February 20, 2004). UNSW Law Research Paper No. 2011-47, Available at SSRN:

Amelia Simpson (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200

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