The legal personality of the Commonwealth of Australia

• Main Author: Hartford Davis, Sebastian Howard
• Other Authors: Getzler, Joshua
• Published: University of Oxford 2016
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.729002

The thesis explores the legal personality of the Commonwealth of Australia under the Constitution of the Commonwealth of Australia, against the background of constitutional litigation in the High Court of Australia, current to 1 February 2016. It assesses that jurisprudence alongside a wider enquiry into state and corporate personality, with some relevant comparative analysis of UK, Imperial, Canadian and New Zealand materials. The thesis advances the positive claim that the Constitution created a legal person, called the Commonwealth'. In order properly to understand the nature of this legal person, as a matter of domestic law, it is necessary to discriminate between the legal or 'constitutional person' formally constituted by the Constitution, and the Commonwealth of Australia conceived more widely as a 'government', or as a 'nation'/'political community'. There is a recent tendency in judgments of the High Court of Australia to suppose either that the Commonwealth (government), or the Commonwealth (nation), is a legal person. This thesis argues that both notions are wrong. The theory that the Commonwealth (government) is a legal person forms a primary focus in this regard. Primary governmental institutions in Australia are constituted by law as entities or groups, which perform functions of importance to the legal system but which do not have and cannot form legal relations. Such institutions are sometimes described as 'organs', 'branches', 'aspects' or 'facets' of a 'polity' or 'body politic', which is a legal person. These are words of fluid meaning, but which carry the flavour of the Hobbesian state: a sense that the 'Commonwealth' is a legal person incorporating every aspect of 'its' power and authority, and embracing all those who act on 'its' behalf. The thesis argues that this theory and its associated terminology misrepresent the nature and extent of the Commonwealth's legal personality. The thesis advances correlative negative claims: the Commonwealth (government) is not a legal person, and the Commonwealth (constitutional person) is not the government. The terms 'polity' and 'body politic' are often also used to describe the Commonwealth (nation), as distinct from the Commonwealth (government), sometimes with the implication that the Commonwealth (nation) is a legal person. The thesis advances reasons for rejecting this theory, whilst acknowledging that any such theory depends to a significant degree on what definition is adopted of the concept of 'nation'. Thus, the thesis argues that the legal person known as the 'Commonwealth' must not be confused with other significations of the word. The thesis contends for a narrower theory: the government and the nation are not legal persons, and must be distinguished from the Commonwealth (constitutional person). The narrow theory aligns with English antecedents, and avoids the conceptual problems otherwise thrown up by the need to explain how the amorphous interests, natural and artificial persons, offices, institutions and powers that are identified with the government or nation of Australia could rationally be understood as emanating from a single legal person. For legal purposes, neither the government nor the nation is treated as a unified legal personality. Rather, in different ways, both the government and the nation are constructed or comprised of a multitude of legal persons, one of which is the Commonwealth (constitutional person).