This is distinct from the doctrine of crown immunity, as well as the rule expressed in Section 109 of the Australian Constitution which governs conflicts between Commonwealth and State laws.
[4] As Griffith CJ declared in the first case: In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied... a right of sovereignty subject to extrinsic control is a contradiction in terms.
Deakin v Webb was overturned by the Judicial Committee of the Privy Council in 1906,[5] although the High Court largely ignored the ruling and stuck to its precedent in D'Emden.
That this must be so is patent from the circumstance that the legislative powers given to the Commonwealth Parliament are all prefaced with one general express limitation, namely, "subject to this Constitution," and consequently those words, which have to be applied seriatim to each placitum, require the Court to consider with respect to each separate placitum, over and beyond the general fundamental considerations applying to all the placita, whether there is anything in the Constitution which falls within the express limitation referred to in the governing words of sec.
That inquiry, however, must proceed consistently with the principles upon which we determine this case, for they apply generally to all powers contained in that section.
[12]Although Dixon J had suggested in the Melbourne Corporation case that the States lack the power to legislate with respect to the rights and activities of the Commonwealth,[13]} it was not until 1962 when, as Chief Justice, he declared in Commonwealth v Cigamatic Pty Ltd (In Liq):[14] It is not a question, as it appears to me, of interpreting some positive power of the State over a given subject matter.
[19] In 1995, in the AEU case,[20] the High Court struck down a Commonwealth law on the grounds that it impaired the capacity of a State to function as an independent government.