Report No. 01
The Law in Australia
49. Under section 78 of the Commonwealth of Australia Constitution Act, Parliament was enabled to make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. Under the Judiciary Acts, 1903 to 1915, section 64, it was provided that in a 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 cause evolved on either side as in a suit between a subject, and a subject.
Section 56 of the said Act enables the citizen to bring a suit whether in contract or in tort against the Commonwealth in the High Court or the Supreme Court of the State in which the claim arose. These provisions were considered in Baume v. Commonwealth,4 CLR 74, and it was held that the Act gave the subject the same rights of action against the Government as against a subject in matters of tort as well as contract, and that the Commonwealth was therefore responsible and an action was maintainable for tortious acts of its servants in every case in which the gist of the cause of action was infringement of a legal right.
If the act complained of is not justified by law and the person doing it is not exercising an independent discretion conferred on him by statute but is performing a ministerial duty, the State is not liable. The party, therefore, making a claim against a State has to establish his legal right and the infringement thereof and would be entitled to a decree for damages if the act complained of is not justified by law and was not done in the course of the exercise of ait independent discretion conferred upon a person by statute. In other words, to make the State liable the servant must have performed a ministerial duty and not a discretionary duty.
The formula adopted in Australia that the rights of parties shall, as nearly as possible, be the same as in a suit between a subject and a subject, is simpler, especially in view of the interpretation that it has received in Australia. It gives a wide scope for judicial interpretation, and it is difficult to say to what extent the State's liability, without distinction between sovereign and non-sovereign functions, would be recognised under the Australian formula. It is not safe to leave the law in such an elastic and uncertain state.