Australia: Commonwealth of Australia bound by State or Territory Legislation

Legal Directions – July 2011
Last Updated: 1 August 2011
Article by Geoffrey Flint Esq

Martens v Commonwealth of Australia & Anor [2011] QSC 65

Comcover is the Australian Government general insurance fund, which provides insurance and risk management services to the departments and agencies of the Commonwealth of Australia ('Commonwealth').

Where claims are made or litigation is commenced, are the Commonwealth's departments or agencies bound by State or Territory legislation that regulates prelitigation procedures or that has amended the common law after the Ipp Report recommendations?

The Queensland Supreme Court has held that the Commonwealth is so bound.


State and Territory legislation contains a familiar clause in much legislation:

'Act to bind Crown'
This Act binds all persons including the State [or Territory] and, to the extent the legislative power of the [State or Territory] Parliament permits, the Commonwealth and the other States [or the Crown in all its capacities].'

Background - Crown immunity

Historically, the Crown was immune from liability for any loss or damage caused by the actions of the Crown's servants or agents.

This immunity has been, in varying degrees, removed by the parliaments of the Commonwealth, States and Territories. As an example, s64 of the Judiciary Act 1903 (Cth) ('Judiciary Act') establishes practical equality and standing to the Commonwealth, as though the Commonwealth was a subject of the Crown, instead of enjoying the immunities of the Crown:

'Rights of parties'
In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.'

Therefore, the Commonwealth, amongst other things, is subject to the laws (statute and common law) of negligence and vicarious liability, in the absence of a Commonwealth statute enlivening s109 of the Australian Constitution, which strikes down State legislation that is inconsistent with Commonwealth legislation.

Martens' case

Mr Martens ('plaintiff') was charged in Australia with sexual offences committed against two under-aged girls in Port Moresby, Papua New Guinea. He was convicted of one of the offences and his appeal against conviction and sentence was dismissed by the Queensland Court of Appeal. Subsequently, he sought an executive pardon, which was granted by the Queensland Court of Appeal.

In civil proceedings in the Queensland Supreme Court, the plaintiff claimed that an officer of the Australian Federal Police ('AFP') who investigated and charged him, and the Commonwealth:

  • Maliciously prosecuted the plaintiff
  • Was guilty of misfeasance in public office
  • Breached the duty of care owed to him.

The various causes of action were tortious. The plaintiff's claim for damages had the character of 'personal injuries', as defined by Personal Injuries Proceedings Act 2002 (Qld) ('PIPA').

The Commonwealth applied to strike out the claim, as the plaintiff had not complied with the pre-litigation procedures prescribed by PIPA.

The plaintiff countered that:

  • Because PIPA's purpose is limited to protecting insurers, the claim is not within its scope
  • The provisions of PIPA did not apply to the claim as they are in conflict with s64B of the Australian Federal Police Act 1979 (Cth) ('AFP Act'), which makes the Commonwealth liable for torts committed by members of the AFP
  • The Australian Constitution, s109, strikes down PIPA, as it is inconsistent with the AFP Act, which 'covers the field'.

Queensland Supreme Court

The primary judge, Jones J, held:

  • The court was obliged to apply relevant Commonwealth and State law to the claim, pursuant to s56 of the Judiciary Act
  • As the Commonwealth enjoys only the practical equality and standing of a subject, on its face, Queensland legislation applies to the Commonwealth in such a claim, by virtue of s64 of the Judiciary Act: Commonwealth v Evans Deakin Industries Limited The AFP Act does not 'cover the field' in a way which limits the effect of s64 of the Judiciary Act
  • There is no Commonwealth scheme which regulates the way a person may pursue a claim for breach of duty against the AFP or the Commonwealth
  • PIPA does not attempt to impair the capacities of the Commonwealth executive but to regulate the manner in which claims, including claims against the Commonwealth, are pursued: Re Residential Tenancies Tribunal ex-parte Defence Housing Authority.

Accordingly, the plaintiff's claim could only be pursued under the statutory regime imposed by PIPA.

As the plaintiff had not pursued his claim in accordance with PIPA, he was not entitled to commence the action.

Therefore, the plaintiff's action was struck out with costs.


Intriguingly, it was the Commonwealth who sought the determination that it was bound by the pre-litigation regime imposed by Queensland legislation and the plaintiff who argued that the Commonwealth was not so bound.

It would seem this important issue had not previously been argued and decided by an Australian court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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