2020 SLJ Research Seminar Series
You are warmly invited to the next seminar for 2020 in the SLJ Research Seminar Series on Thursday 7 May 2020 at 12.00pm. This will be an online seminar only hosted by the Zoom platform. The presenter is SLJ Practice Professor, Associate Professor Lee Aitken.
A recording from this seminar is available at:
These links will expire on 06-11-2020 and will become unavailable for download after this date. You can also watch the video in your browser window.
- Audio Only (23.90 MB) https://cloudstor.aarnet.edu.au/plus/s/Zmjfv8QOxaP5Zvl
- Video (432.42 MB) https://cloudstor.aarnet.edu.au/plus/s/GNOSPo5SLx1lPBy
The password for these recordings is CTth2FfW8T6_
The Handmaid’s Tale – problems with section 75(v) and Commonwealth liability
This paper explores the constitutional source of the liability of the Commonwealth of Australia. Is it section 75(iii) of the Constitution, which confers original jurisdiction on the High Court in “matters” in which the Commonwealth, or a party suing or being sued on behalf of the Commonwealth, is a party? Section 56 of the Judiciary Act (1903) analogously provides that a person making a claim against the Commonwealth in contract or tort can prosecute it in the High Court or a competent court of a State or Territory.
In Commonwealth v NSW (1923) 32 CLR 200 – section 75(iii) on its own (and without need for legislation made under section 78 of the Constitution) enabled the Commonwealth to sue a State in tort – “it was said that s 75 of the Constitution, which bound Commonwealth and States alike, imposed tortious liability on the Crown in right of the Commonwealth or a State”.
This reasoning was heavily criticised by Dixon J in Werrin v Commonwealth (1937) 59 CLR 150 at 167, who said that a consequence would be that liability of the Commonwealth would be entrenched and not subject to legislative proscription by the Parliament.
Contrast the reasoning attaching to the entrenched right to sue under section 75(v) of the Constitution – prohibition, mandamus, or injunction against “an officer of the Commonwealth. Such ‘entrenching’ is very important in cases concerning immigration, the issue of ‘jurisdictional error’ in State tribunals, and the scope of a “matter” when considering limitations on State tribunals to decide questions in federal jurisdiction.
Our presenter, Practice Professor Lee Aitken, is an academic at the University of Newcastle, and from 2014 to 2019, taught at the TC Beirne School of Law, University of Queensland. He studied at ANU, Oxford and Columbia, and has taught at law schools in Canada, Hong Kong, and Australia, as well as practising extensively as a solicitor and barrister since 1979 in Australia and Hong Kong.
While at the Sydney Bar from 1994 to 2005, Practice Professor Aitken specialised in property, banking, insolvency, and general commercial disputes. He appeared in several leading cases in the High Court of Australia including Reid v Howard (1995) 184 CLR, Garcia v National Australia Bank (1998) 194 CLR 395, Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315, and Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, and was counsel at first instance in Strang v Patrick Gifford Stevedores (2003) 214 CLR 269 and Kirk v Industrial Relations Commission  HCA 1. His main academic interests and writing focus on real and personal property, banking and finance law, evidence and procedure, insolvency, and equity and trusts.