Proceedings against Commonwealth or State.

78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State338 in respect of matters within the limits of the judicial power339.

UNITED STATES.—The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. (Amendment xi.)

HISTORICAL NOTE.—The Commonwealth Bill of 1891 contained the following clause (Ch. iii. sec. 7):—

“Nothing in this Constitution shall be construed to authorize any suit in law or equity against the Commonwealth, or any person sued on behalf of the Commonwealth, or against a State, or any person sued on behalf of a State, except by the consent of the Commonwealth, or of the State, as the case may be.”

At the Adelaide session, 1897, at the instance of the Judiciary Committee, the clause of the 1891 Bill was adopted verbatim; but in committee, Mr. Barton proposed its omission. Mr. Glynn, who had prepared an amendment to allow Parliament to deal with the matter, fell in with this suggestion. No one defended the clause, and it was struck out. (Conv. Deb, Adel., pp. 989–90.)

At the Melbourne session, Mr. Glynn moved the insertion of a new clause as follows:—

“Proceedings may be taken against the Commonwealth or a State in all cases, within the limits of the judicial power, in which a claim against a subject might be maintained.”

Mr. Symon thought the clause dangerously wide, and that the proper course was to give Parliament power to legislate with regard to proceedings against the Crown. He argued, however (dissenting from Mr. Glynn and Mr. Barton) that the Parliament would have this power even in the absence of express provision, as it was a mere matter of procedure. Sir John Downer supported the clause, as very properly abolishing the maxim “the Queen can do no wrong”—just as had been done in New South Wales by the Claims against Government Act, 1876. Mr. Dobson preferred the clause as it stood to Mr. Symon's suggestion. Mr. O'Connor thought it a matter not of procedure merely, but of prerogative right, which could not be taken away without express words; and he proposed, as an amendment to Mr. Glynn's proposition, the clause which now stands in the Constitution. After further debate, Mr. O'Connor's amendment was carried. (Conv. Deb., Melb., pp. 1653–79.)

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