Within the pages of the famous Engineers' Case (1920) 28 CLR 129, The High Court explained that the Constitution was established by the Imperial Act 63 & 64 Vict c 12, and that the Crown was “one and indivisible”. The Court then made the crucial observation that the Constitution Act was enacted for the purpose of regulating the exercise of the Crown's legislative, executive and judicial power throughout Australia.
The Court's conclusion was explicit:
“The Act 63 & 64 Vict. c. 12 … is by its own inherent force binding on the Crown to the extent of its operation.”
The Court then went further. It said that even if clause 5 of the Imperial Act had not existed, the force of s 51 of the Constitution would have bound the Crown in right of a State insofar as a valid Commonwealth law purported to affect it. And then came the sentence that is particularly difficult to reconcile with the proposition that deleting the words "This Act shall Bind the Crown" created a Crown exemption:
“The Commonwealth Constitution as it exists for the time being … necessarily so far binds the Crown…”
The Court concluded that laws validly made under the Constitution bind both Crown and subjects. The passage is reproduced in Victoria v Commonwealth itself.
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Victoria v Commonwealth ~ the High Court said it again!
More than half a century later, the issue came before the High Court again in Victoria v Commonwealth, [1971] HCA 16; (1971) 122 CLR 353.
This was the Payroll Tax Case. Victoria argued that Commonwealth legislation imposing payroll tax could not constitutionally operate upon the Crown in right of Victoria. The Commonwealth said that it could and The High Court upheld the Commonwealth's position.
Barwick CJ went directly back to the Engineers' Case and reproduced the earlier reasoning concerning the Crown. His judgment stated that the question was whether Commonwealth legislation made under s 51 could bind the Crown in right of a State.
His answer was unequivocal:
“the Commonwealth Parliament in exercising its legislative power as to any of the enumerated topics is able by its law to bind the Crown in right of a State…” There were qualifications — constitutional limits still mattered, and legislation had to actually be supported by a granted head of Commonwealth legislative power.
But Crown immunity was not one of those general limits.
Saying that the Crown is bound by the Constitution and by valid laws made under it does not mean that every government official can automatically be sued personally for every governmental act.
“Binding the Crown” is a constitutional and statutory concept. It does not automatically answer questions of: personal liability; criminal liability; civil remedies; Crown immunity from particular proceedings; prerogative powers; statutory interpretation; executive responsibility; or whether a particular Commonwealth law is constitutionally valid.
Modern Commonwealth legislation routinely contains provisions expressly stating whether an Act binds the Crown.
For example, the Australian Human Rights Commission Act 1986 expressly provides that the Act binds the Crown in right of the Commonwealth, while separately dealing with the Crown in right of the States and expressly providing that Crown immunity from criminal prosecution is not removed.
That distinction is important because it demonstrates what “binds the Crown”actually does in Australian law. It is not a magic formula meaning “every government officer is personally liable”. It concerns whether the Crown is subject to the legal obligations imposed by the relevant law.
In Victoria v The Commonwealth Case • [1971] HCA 16 the High Court again, provided the following:
The Act 63 &64 Vict. c. 12, establishing the Federal Constitution of Australia, being passed by the Imperial Parliament for the express purpose of regulating the royal exercise of legislative, executive and judicial power throughout Australia, is by its own inherent force binding on the Crown to the extent of its operation.
It may be that even if s. V. of the Act 63 &64 Vict. c. 12 had not been enacted, the force of s. 51 of the Constitution itself would have bound the Crown in right of a State so far as any law validly made under it purported to affect the Crown in that right ; but, however that may be, it is clear to us that in presence of both s. V. of the Act and s. 51 of the Constitution that result must follow.
The Commonwealth Constitution as it exists for the time being, dealing expressly with sovereign functions of the Crown in its relation to Commonwealth and to States, necessarily so far binds the Crown, and laws validly made by authority of the Constitution, bind, so far as they purport to do so, the people of every State considered as individuals or as political organisms called States - in other words, bind both Crown and subjects." (1920) 28 CLR, at pp 152, 153 (at p367)
There is actually a more interesting story here than the claim that Australia has somehow been operating under an unenforceable Constitution for 125 years.
The history shows a transition from an express statutory formulation “This Act shall bind the Crown” to a constitutional structure in which the Crown's powers and capacities are themselves organised by the constitutional instrument.
The High Court subsequently treated the Constitution as having legal force over the Crown not because somebody happened to leave six words in clause 2, but because of the constitutional structure and legal operation of the instrument itself.
The Crown is not an entity standing outside the Constitution, deciding voluntarily whether to comply with it. The Crown's Commonwealth constitutional powers are exercised through the constitutional structure. And when Parliament legislates within the powers granted to it by that Constitution, the Crown does not acquire a general immunity simply because it happens to be the Crown.
And finally...
Additionally s75 of the Constitution provides remedies that bind Crown Officers...
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 75
Original jurisdiction of High Court.
In all matters--
(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction.