Henderson v Defence Housing Authority

High Court of Australia
Established 1903
Country Australia

Henderson v Defence Housing Authority (1997) is a landmark Australian High Court decision on intergovernmental immunity and states rights under the Australian Constitution. The full citation is Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410.[1]

Facts of the case

Dr Henderson was the owner of a house which was leased by the Defence Housing Authority which used the property to provide accommodation for defence personnel. Dr Henderson the owner sought orders from the NSW Tribunal requiring the Defence Housing Authority to allow him to enter the premises for the purpose of inspection and give the owner a key to the premises.

In response the DHA maintained that it was not bound by the NSW Act as they were immune from state laws about tenant disputes due to the Commonwealth government enjoying crown immunity from State laws, specifically the Residential Tenancies Act 1987 (NSW).

The matter was heard before the High Court of Australia.[2]

Decision reached

It was established the DHA was created under a s61 of the constitution (royal prerogative) so there was no actual law in which the state law could be in conflict.

By a 6:1 majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Kirby J dissenting) the Court held that the DHA is subject to the NSW Act.

Four judges saw a distinction between the capacity of the crown which state law can’t effect and the exercise of the crown authority which state law could affect. One judge (McHugh) thought the distinction was unrealistic to make that distinction, but held a state law could affect the manner in which the performance of commonwealth duty.

By a 6:1 majority (McHugh J dissenting) the Court rejected the broad proposition that the Commonwealth cannot be bound by State legislation.

However, by a 6:1 majority (Kirby J dissenting) also rejected the argument that the Commonwealth's constitutional immunity from State law is no greater than the immunity which the States enjoy from Commonwealth law.

See also

References

  1. ↑ Australian Government Solicitor, 30 August 1997 The Commonwealth's Implied Constitutional Immunity From State Law - Legal Briefing Number 36 30 August 1997 (accessdate = 24 May 2012).
  2. ↑ Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority 190 CLR 410. (12 August 1997).
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