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Type: Journal article
Title: Commonwealth v Western Australia and the operation in federal systems of the presumption that statutes do not apply to the Crown
Author: Taylor, Greg D.
Citation: Melbourne University Law Review, 2000; 24(1):77-123
Publisher: Melbourne University Law Review
Issue Date: 2000
ISSN: 0025-8938
School/Discipline: Law School
Statement of
Greg Taylor
Abstract: The presumption that statutes do not bind the Crown exempts the executive from obeying laws enacted by the legislature unless the latter rebuts the presumption. This exemption operates either in a non-federal context (if, for example, both legislature and executive belong to the polity of an Australian State) or in a federal context (for example, the State government seeks exemption from a Commonwealth statute). Previous criticisms of the presumption have failed to distinguish between these two contexts. But the presumption is defensible in the federal context, and indeed plays a significant role in ensuring that consideration is given to states’ interests before the federation enacts legislation affecting them. This has been recognised by Canadian and United States courts. The High Court of Australia should recognise this too, and may be doing so.
Rights: Copyright (c) 2000 Melbourne University Law Review Association, Inc.
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Appears in Collections:Law publications

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