Shifting presumption of the Crown’s immunity 

The KISS principle is a wonderful thing, but when translated from explaining economics to ‘splaining law it may no longer be fit for purpose. 

Not that it would give News Corpse journalists pause for thought.  Thus we had a breathless piece from Claire Lehmann in The Whorestralian of April 16, 2024 headed: “Sex, luxury cruises: Nation cannot afford NDIS decadence“, in which Claire hung out to dry a sex work advocacy organisation, Touching Base, for giving advice to sex workers on providing to the NDIA obscure invoices for services rendered, such as for “innovative community participation”.

If Claire had written her stuff to inform not inflame, she would have explained that the Full Federal Court had specifically determined that sex work was a potentially chargeable item on the NDIS. 

In WRMF (2020) 276 FCR 415, the court upheld the decision of the AAT, reversing the decision of the NDIA (the authority behind the NDIS) against the claimant’s billing for sexual services in the context of her crippling condition. The court said:

“… the respondent was not seeking services that might be sought by a non-disabled person for transactional sexual activity or release (however described). The respondent was seeking a particular kind of service from someone who is prepared to work with her knowing her complex medical conditions; prepared to work with her in circumstances that would be challenging to many people (as described by the respondent in her evidence); willing to learn to assist her having regard to her particular needs; and who has appropriate expertise (however gained) working with disabled persons. The fact that it might be provided by a person who might also be described as a sex worker is not to the point.”

The court finished off the matter noting:

“We see no reason why sexual activity and sexual relationships would not be regarded as included within the activities listed in s. 24(1)(c) (in particular sub- para (ii) …”  

So rather than sending deceitful invoices, providers of sexual services have a legitimate pathway to being paid by the NDIA, but it would help if the sole national broadsheet provided that information instead of inducing vapours for its reader. 

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But this is all of a piece with the current fascination of the right for simplicity and “strong men”. Such leaders, apparently, will provide us with the naïve and obvious answers to our problems. 

This at a time when issues are complex, which calls for leaders who are nimble, agile and adroit. 

These musings relate to the arguments starting to seethe over how to generate sufficient electrical power or ensure enough housing and other energy needs.  

The Shadow Treasurer laid out the standard shallow platitude on the May 12 edition of Insiders: government must step back and let private money make up the needed investment.  

Taylor with other members of the Parliamentary Asylum

Sadly, that misses the reality that private money must go where it will do best, following iron clad economic rules. The best dividends are, for example, in developing fossil fuel extraction rather than developing renewable energy, while developers want to invest in high-end, not social housing, as it’s the former that offers the best returns.

And at least a significant portion of our current housing crisis must be attributed to the mania of the ’90s for the simplicity of privatisation, pushed by St Paul of Keating. 

State public housing stocks around Australia were sold off to satisfy this ideology. 

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A glance at the opening paras of litigation involving such sales, Bass v Permanent Trustee Co Ltd(1999) 198 CLR 334, reveals a rich tapestry of hangers on and advertising touts for selling government property, all turning up to plead their immunity from the restraints of the then Trade Practices Act on the basis of their relationship to the NSW Crown, itself argued to be unaffected by that Act.  

The result was a total dog’s breakfast, due in large part to the decision of the trial judge, Murray Wilcox, to not hear evidence but rather to determine facts by rummaging through a box of documents.

The simplicity of equality before the law is defied by the shape-shifting presumption of the Crown not being bound by statutes, beloved by mates of government (see e.g. the performance of BHP in Bradken v BHP(1979) 145 CLR 107. 

This mercurial presumption carries an even stronger sub-immunity, the rule in Cain v Doyle[1946] 72 CLR 409, that the Crown cannot be made criminally liable for breach of statutory provisions. 

At least the Last Chance Saloon has strangled this loophole to minimal dimensions with the recent decision in Chief Executive Officer, Aboriginal Areas Protection Officer v Director of National Parks[2024] HCA 16 (May 8, 2024).  

Could the respondent Director, a Commonwealth officer acting pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth), be prosecuted under the provisions of Northern Territory Sacred Sites legislation for breach of requirements to take account of such sites.  

The Director had apparently ignored information delivered to him under the NT Act, and ordered construction work of a tourist walking trail in defiance of the protection provided for sacred sites by the Territory statute.

All seven Justices, in five judgments, were clear in making the Director liable for prosecution, despite the laments from the Commonwealth as to such officers being emanations of the Commonwealth Crown, and as such immune from liability. 

Justice Zelling: salad daysThe Cain v Doyle presumption operated only to protect the “body politic” of a Crown, not its human agents or corporate organs. 

The mystification surrounding “the Crown” is boundless, allowing for endless return matches. The reasoning made at such laborious length by the High was dealt with near a half century ago by Howard Zelling in the salad days of the Bray Supreme Court in South Australia.

In Harris v Shepherd (No 2)[1976] SASC 2881 Zelling J was faced with a recalcitrant Registrar of Corporate Affairs who, having lost a summary prosecution, refused to pay the resultant costs order.  

Could he be corralled and made liable like any other litigant, or was he, as a Crown employee, immune to legal process? 

Zelling J saw that argument off quick smart. He viewed the Registrar as amenable to the law and its consequences as the next man, and imprisonment for contempt was canvassed at length. The Companies Office would continue to operate under deputies.

“In my opinion the imprisonment of the Registrar of Companies, regrettable as that might be, would not bring the Companies Office to a standstill … any documents which required the signature of the Registrar personally could I suppose be as well signed by him in prison as anywhere else.” 

So much for the preciousness of senior government employees. There are some limits as to the mysterious Shield of the Crown.