Impairment and Limited State Immunity

Abstract

The modern doctrine of limited State immunity allows the Commonwealth to make laws that affect a State’s functioning unless those laws impair the States. This paper draws attention to a distinction that French CJ makes in Clarke between the practical effects of a law as opposed to non-practical ones. His honour asserts that non-practical effects must also be taken into account when considering impairment. It is argued that a prohibition against non-practical impairment cannot be derived using the High Court’s methodology for constitutional implications (including principles from Engineers). This has an important consequence for constitutional doctrine as this paper argues that the test of discrimination is not relevant to practical impairment.

Keywords: Australian Constitutional Law, Intergovernmental Immunities, State Immunity, Melbourne Corporation Doctrine

JEL Classification: K10, K19