''Henderson v Defence Housing Authority'', also known as the ''Residential Tenancies case'', is a landmark Australian High Court decision on

intergovernmental immunity Intergovernmental immunity is a legal doctrine in federations that defines the extent to which laws of a federal government and its subnational units can bind one another. * Intergovernmental immunity (Australia) * Intergovernmental immunity (Unit ...

and states' rights under the

Australian Constitution The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...

Facts of the case

Dr Henderson was the

owner Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as ''title'', which may be separated and held by diffe ...

of a house which was leased by the

Defence Housing Authority Defence Housing Authority (DHA) () is a Pakistan Army-administered real-estate developer that governs housing and municipal services for Defence neighbourhoods across Pakistan. The Defence Secretary is its chairman and it is managed by the Paki ...

which used the property to provide accommodation for defence personnel. Dr Henderson the owner sought orders from the NSW Residential Tenancies Tribunal requiring the DHA to allow him to enter the premises for the purpose of inspection and give the owner a key to the premises. In response the DHA maintained that it was not bound by the ''Residential Tenancies Act 1987'' as it was immune from state laws about tenant disputes due to the

Commonwealth government The Australian Government, also known as the Commonwealth Government or simply as the federal government, is the national executive government of Australia, a federal parliamentary constitutional monarchy. The executive consists of the prime ...

enjoying

Crown immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. State immunity is ...

from

State State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

laws. The matter was heard before the

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

Decision reached

It was established that the DHA was created under s. 61 of the Constitution (concerning the

royal prerogative The royal prerogative is a body of customary authority, Privilege (law), privilege, and immunity recognised in common law (and sometimes in Civil law (legal system), civil law jurisdictions possessing a monarchy) as belonging to the monarch, so ...

), so there was no actual law in which the state law could be in conflict. By a 6:1 majority ( Brennan CJ, Dawson, Toohey, Gaudron,

McHugh McHugh is a common surname of Irish origin. It is an anglicisation of the original Irish ''Mac Aodha'', meaning literally "Son of Aodh". Aodh was a popular male given name in mediaeval Gaelic Ireland. It was traditionally written in English-langu ...

and Gummow JJ;

Kirby J Michael Donald Kirby (born 18 March 1939) is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009. He has remained active in retirement; in May 2013 he was appointed by the United N ...

dissenting) the Court held that the DHA is subject to the NSW Act. Four judges saw a distinction between the capacity of the crown which state law can’t affect and the exercise of the crown authority which state law could affect. One

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

(McHugh) thought it was unrealistic to make that distinction, but held a state law could affect the manner in which the performance of commonwealth duty. By a 6:1 majority (McHugh J dissenting) the Court rejected the broad proposition that the Commonwealth cannot be bound by State legislation. However, by a 6:1 majority (Kirby J dissenting) also rejected the argument that the Commonwealth's constitutional immunity from State law is no greater than the immunity which the States enjoy from Commonwealth law.

Impact

''Henderson'' is relevant in assessing how a State's legislative and executive actions may affect the Commonwealth's executive power, although a State's executive actions in that regard appear to be restricted to the area of

. While there were majorities in favour of general concepts in the matter, there were differing views on specific aspects concerning the distribution of legislative power: :* Dawson, Toohey and Gaudron JJ held that, where the Commonwealth has a pre-existing relationship with a citizen and a State passes a law which potentially affects that relationship, the State law will be valid so long as it is of general application and does impose a disability on, or remove a privilege or immunity of, the Commonwealth. In Brennan CJ's view, which was similar to McHugh J's, such laws would not be valid as the Commonwealth had not chosen whether to be subject to it. As all five agreed that the Commonwealth will only be bound by State law where it has consented to be bound, this has the effect of making the Commonwealth executive superior to those of the States. :* Whether a State law affects the executive capacities of the Commonwealth, as opposed to the exercise of them, will be a matter subject to the facts of a particular case. :* The High Court's view of the relevance of s. 109 in such matters was inconclusive. McHugh, Gummow and Kirby JJ believed that, where executive power arises from statute, the Commonwealth's protection from State law must come from s. 109 and not from the ''Cigamatic'' doctrine. Dawson, Toohey and Gaudron JJ did not consider s. 109 in formulating their judgment. Certain commentators consider the first viewpoint to be more consistent with the nature of Australian federation. :* While Dawson, Toohey and Gaudron JJ held that the States do not have specific legislative powers to restrict or modify the executive capacities of the Commonwealth, but the Commonwealth does have such authority with respect to those of the States, it has been noted that there is no reason why a State law could not affect the Commonwealth so long as it is for the

peace, order and good government In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Pa ...

of that State. :* Dawson, Toohey, Gaudron and McHugh JJ agreed that the States do not have the power to alter the legal relationships between the Commonwealth and its subjects. The majority of Justices accepted that s. 64 of the ''

Judiciary Act 1903 The ''Judiciary Act 1903'' (Cth) is an Act of the Parliament of Australia that regulates the structure of the Australian judicial system and confers jurisdiction on Australian federal courts. It is one of the oldest pieces of Australian feder ...

'' did not apply, as the DHA was not a body that was subject to the ''Cigamatic'' doctrine. However, ''Commonwealth v Evans Deakin Industries'' had previously held that that provision will mean that a wide range of State laws may apply to the Commonwealth in circumstances where the doctrine applies.

References

{{reflist, 3 Intergovernmental immunity in the Australian Constitution cases High Court of Australia cases 1997 in case law 1997 in Australian law

Facts of the case

Decision reached

Impact

See also

Further reading

References