D'Emden v Pedder
Encyclopedia
D'Emden v Pedder was a significant Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

n court case decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 on 26 April 1904. It directly concerned the question of whether salary receipts of federal government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...

 employees were subject to state stamp duty
Stamp duty
Stamp duty is a tax that is levied on documents. Historically, this included the majority of legal documents such as cheques, receipts, military commissions, marriage licences and land transactions. A physical stamp had to be attached to or impressed upon the document to denote that stamp duty...

, but it touched on the broader issue within Australian constitutional law
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....

 of the degree to which the two levels of Australian government were subject to each other's laws.

The case was the first of several in which the High Court applied the implied immunity of instrumentalities doctrine, which held that the state and Commonwealth governments were normally immune from each other's laws, and which, along with the reserved State powers
Reserved State powers
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to...

 doctrine, would be a significant feature of Australian constitutional law until both doctrines were thrown out in the landmark Engineers' case
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129 was a landmark Australian court case decided in the High Court of Australia on 31 August 1920...

.

The case is also significant as the first case decided by the High Court involving the interpretation of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...

.

Background to the case

As with the allocation of powers to the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 under the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...

 grants a selection of specified powers to the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...

, while leaving unassigned powers to the various state parliaments. Most of the powers granted to the federal parliament can also be exercised by the state parliaments, though federal laws will prevail
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...

 in case of inconsistency. This arrangement resulted in dispute in constitutional law circles about whether the federal government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...

 could be subject to state laws, and vice versa.

The factual circumstances giving rise to this case began on 31 March 1903 when Henry D'Emden, who was employed by the federal government as the Deputy Postmaster-General for Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...

, gave a receipt for his salary to a federal official without paying the Tasmanian stamp duty
Stamp duty
Stamp duty is a tax that is levied on documents. Historically, this included the majority of legal documents such as cheques, receipts, military commissions, marriage licences and land transactions. A physical stamp had to be attached to or impressed upon the document to denote that stamp duty...

 on it. D'Emden was convicted in a Hobart
Hobart
Hobart is the state capital and most populous city of the Australian island state of Tasmania. Founded in 1804 as a penal colony,Hobart is Australia's second oldest capital city after Sydney. In 2009, the city had a greater area population of approximately 212,019. A resident of Hobart is known as...

 court, and was ordered to pay a one shilling fine and seven shillings and sixpence in costs; when he didn't pay, he was imprisoned in the Hobart jail for seven days' hard labour.

While agreeing that in fact he had not paid the stamp duty, D'Emden argued that at law he was not obliged to pay the state tax, and made the same basic argument in an appeal to the Supreme Court of Tasmania
Supreme Court of Tasmania
The Supreme Court of Tasmania is the highest State court in the Australian State of Tasmania. In the Australian court hierarchy, the Supreme Court of Tasmania is in the middle level, and is able to both receive appeals from lower courts, and able to be appealed from.The ordinary sittings of the...

. That appeal was rejected, and D'Emden appealed to the High Court.

Arguments

Arguments were heard on 24 February 1904. D'Emden was represented by the Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...

, Senator James Drake
James Drake
James George Drake , Australian politician, was a member of the first federal ministry.Drake was born in London and educated at King's College School, and migrated to Australia in 1873, working as a storekeeper and journalist in Queensland...

, who put forward four arguments for D'Emden's case:
  1. That, in its application to D'Emden, the stamp duty was a tax on the agencies or instrumentalities of the federal government, and was "by necessary implication forbidden by the Constitution";
  2. That the stamp duty legislation, to the extent that it purported to affect the salary of federal agents, was inconsistent with the federal legislation setting the salary, and was thus invalid under section 109 of the Constitution
    Section 109 of the Australian Constitution
    In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...

    ;
  3. That the stamp duty legislation, to the extent that it purported to apply to salary receipts from the Postmaster-General's Department
    Postmaster-General's Department
    The Postmaster-General's Department was created at Federation in 1901 to control all postal services within Australia. Its minister was the Postmaster-General. In mid-1975 it was disaggregated into the Australian Telecommunications Commission and the Australian Postal Commission...

    , was a law with respect to that department, and was thus invalid under section 52 of the Constitution, which granted power over the department exclusively to the federal parliament;
  4. That, to the extent that the stamp duty applied to federal salary receipts, it constituted a tax on the property of the Commonwealth, and was thus prohibited by section 114 of the Constitution.


Drake argued that, because of the similarities between the Australian and United States Constitutions in this respect, it was useful to look at decisions of American courts in United States constitutional law
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...

 when interpreting the Australian Constitution. Drake referenced the 1819 decision of McCulloch v. Maryland
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland...

, in which the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 held that the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s may not impede valid constitutional exercises of power by the United States Government, and argued that a similar interpretation should apply to the Australian Constitution. Justice O'Connor noted that the Australian Constitution already contains express provisions in Chapter V dealing with the relationship between the state and federal governments, and asked whether it was not so that as a result "any State law which does not conflict with the express provisions of Commonwealth law must be held good?" To this, Drake responded that the inconsistency provision in section 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...

 should be regarded as applying not only to federal statutes but to the Constitution itself, including to implied powers under it. Drake then dealt with a number of decisions of American and Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

 courts in which McCulloch v. Maryland had been distinguished or held not to apply, and argued that they all involved different questions to the one in this case.

With respect to the second argument, regarding inconsistency, Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...

 Griffith
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...

 questioned whether the federal legislation setting D'Emden's salary was not simply intended to have effect "with reference to the local conditions prevailing in the particular State, such as local taxation, house-rent, prices of food and clothing" and so on, to which Drake replied that the stamp duty legislation was in conflict with the federal legislation because the effect was to diminish D'Emden's salary before he received it, unlike the examples Griffith mentioned of things which would affect it after he received it.

On the third argument, Drake argued that, like American courts had done in similar cases, the High Court should look to the substantive effect of the Tasmanian legislation in considering whether it interfered with an exclusive power of the federal parliament. Justice O'Connor asked Drake whether his argument applied to D'Emden because he was an officer of the Department, or merely because he had performed services for the Department, and Drake responded that his reasoning was not based on the person but on the fact that the salary receipt was a departmental record.

The respondent Pedder was a Superintendent of Police in Tasmania, and he was represented by the Attorney-General of Tasmania, Sir Herbert Nicholls. Nicholls conceded that it was a necessary consequence of a federal system of government
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...

 that there were limits on the powers of the state and federal governments with respect to each other, and that the states "have no power by taxation or otherwise to retard or burden or in any other manner control the operation of the constitutional laws of the Commonwealth Parliament", but argued that such a doctrine should not be taken without limitation, and that the degree of interference should be considered.

Nicholls emphasised that the stamp duty applied to D'Emden personally, as a private citizen: that while D'Emden "earns his salary as an officer, [he] receives and enjoys it as a private citizen", and that the legislation did not infringe the federal parliament's exclusive powers over the Postmaster-General's Department since "in giving the receipt, [D'Emden] is not serving the Commonwealth, but only dealing with it." Nicholls also conceded that if the stamp duty was levied only on agents of the federal government then it would be unconstitutional, but stressed that it was a general tax applying to all persons in Tasmania.

Nicholls then engaged with Griffith in an exchange about the relationship between the Australian and United States Constitutions. Griffith challenged Nicholls to identify any differences between the two which would make the principles from American cases such as McCulloch v Maryland inapplicable, Nicholls pointing out section 107, which preserves or "saves" the powers of the state parliaments (except for powers given exclusively to the federal parliament). Griffith suggested that there was no material difference between this provision and the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

, but Nicholls argued that section 107 was far clearer, and further suggested that "the contention that the implied powers of the Commonwealth can over-ride State laws seems hardly consistent with it."

Griffith then said:
"The framers of the Australian Constitution had before them decided cases in which certain provisions of the United States Constitution had received definite and settled interpretation. With these cases before them they used in many of the sections of our Constitution almost identical language. Does not this raise a strong presumption that they intended the same interpretation to be placed upon similar words in our Constitution?"

Nicholls agreed, but maintained that as far as the provisions for the relationship between the states and the federal government were concerned, the Australian Constitution was quite different from the United States Constitution.

Judgment

A unanimous opinion was handed down by the court, delivered by Chief Justice
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...

 Griffith
Samuel Griffith
Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...

.

After laying out the facts the court promptly rejected D'Emden's fourth argument, that the salary receipt was property within the meaning of section 114 of the Constitution, saying that the section was intended to prohibit state taxes on property
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...

 per se (the stamp duty was effectively a personal tax). It then proceeded to consider the bulk of the case.

The court found that the legislation governing salary receipts for employees of federal departments (then contained within the Audit Act 1901) was clearly to do with "the conduct of the departmental affairs of the Commonwealth Government", an area over which, under section 52 of the Constitution, was within the exclusive authority of the federal government, and thus was immune from state authority. The court expressed the principle in this way:
"In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied... a right of sovereignty subject to extrinsic control is a contradiction in terms. It must, therefore, be taken to be of the essence of the Constitution that the Commonwealth is entitled, within the ambit of its authority, to exercise its legislative and executive powers in absolute freedom, and without any interference or control whatever except that prescribed by the Constitution itself... It follows that when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative."


On the use of United States case law, from which the doctrine had largely been drawn, the court acknowledged that decisions of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 were of course not binding in Australia, but given the similarities between the American and Australian Constitutions, such decisions "may well be regarded... not as an infallible guide, but as a most welcome aid and assistance." The court went on to discuss the method by which the Constitution was formed, at the Constitutional Conventions
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...

, and said that "we think... we are entitled to assume — what, after all, is a fact of public notoriety — that some, if not all, of the framers of the Constitution were familiar, not only with the Constitution of the United States, but with that of the Canadian Dominion and those of the British colonies", and that when provisions of the Australian Constitution are in substance the same as those in other constitutions, and those other provisions have been interpreted by courts in a certain way, "it is not an unreasonable inference that [the Australian Constitution's] framers intended that like provisions should receive like interpretation." Griffith, Barton and O'Connor were capable of speaking for at least some of the framers of the Constitution, having each "assisted in the actual drafting of the constitutional documents."

The court then quoted extensively and with approval from the judgment of Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

 John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...

 in McCulloch v Maryland, specifically from a passage discussing the ideological basis of taxation, the relationship between the various American states and the Union, and the implications of the Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...

. The court went on to note that the principles enunciated in that case had been met with approval subsequently in United States cases, and also in cases in the Canadian provinces
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...

 of Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....

 and New Brunswick
New Brunswick
New Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...

, and thus rebuffed an argument raised by the majority of the Supreme Court of Tasmania
Supreme Court of Tasmania
The Supreme Court of Tasmania is the highest State court in the Australian State of Tasmania. In the Australian court hierarchy, the Supreme Court of Tasmania is in the middle level, and is able to both receive appeals from lower courts, and able to be appealed from.The ordinary sittings of the...

 that the doctrine did not have support.

The court rejected another argument raised by the majority of the Supreme Court, that it is necessary in every case to consider whether the attempted exercise of power by a state actually inhibited or interfered with the workings of the federal government, instead deciding that any claimed power which has the potential for such interference will be invalid, and consideration of whether there was actual interference would be irrelevant.

In a final point, the court said that, applying the basic principle of statutory construction that a piece of legislation "should, if possible, receive such an interpretation as will make [it] operative and not inoperative", the Tasmanian legislation imposing the stamp duty should be interpreted so as not to apply to federal officers in circumstances such as that of D'Emden, but it would otherwise be valid.

Consequences

The High Court proceeded to apply the implied immunity of instrumentalities doctrine in a range of cases, many of which also involved taxation, and many of which were similarly controversial. In the case of Deakin v Webb, decided later in 1904, the Court held that Alfred Deakin
Alfred Deakin
Alfred Deakin , Australian politician, was a leader of the movement for Australian federation and later the second Prime Minister of Australia. In the last quarter of the 19th century, Deakin was a major contributor to the establishment of liberal reforms in the colony of Victoria, including the...

 was not liable to pay Victorian
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....

 income tax
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...

 on his salary as a member of the Australian House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....

, and as Attorney-General of Australia
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...

 and later Prime Minister of Australia
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...

, based on the principles in D'Emden v Pedder. The Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

 overruled the decisions in D'Emden and Deakin in the 1907 case of Webb v Outtrim, but in Baxter v Commissioners of Taxation (New South Wales), the High Court held that the Privy Council had decided the case without jurisdiction, and upheld the doctrine. The Commonwealth Salaries Act 1907 settled the issue of state taxation by making all federal salaries subject to state taxes.

In the Railway Servants' Case, the High Court held that the doctrine worked both ways, that is, it held that the states were also immune from Commonwealth laws, in finding that a trade union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...

 representing employees of the Government of New South Wales
Government of New South Wales
The form of the Government of New South Wales is prescribed in its Constitution, which dates from 1856, although it has been amended many times since then...

 could not be registered under federal industrial relations legislation.

H.B. Higgins, an opponent of the implied immunities doctrine who would be appointed to the High Court himself in 1906, wrote in response to the decisions in this and several other cases that "The man in the street is startled and puzzled. He sees a public official, enjoying a regular salary in the postal department, paying the Victorian income-tax until federation, and then suddenly exempted from the tax because the post-office has passed over to federal control."

The doctrine became increasingly unpopular, and when Higgins and Isaac Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...

 were appointed to the High Court in 1906, they regularly dissented from Griffith, Barton and O'Connor in implied immunities cases. The doctrine, along with the doctrine of reserved State powers
Reserved State powers
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to...

, would ultimately be overturned in the famous Engineers' case
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129 was a landmark Australian court case decided in the High Court of Australia on 31 August 1920...

 of 1920.

Writing in 1939, H. V. Evatt
H. V. Evatt
Herbert Vere Evatt, QC KStJ , was an Australian jurist, politician and writer. He was President of the United Nations General Assembly in 1948–49 and helped draft the United Nations Universal Declaration of Human Rights...

 (at the time a Justice of the High Court) discussed D'Emden v Pedder and the other implied immunity of instrumentalities cases and suggested that the High Court in the Engineers' case may have taken too drastic an approach to D'Emden. The court in the Engineers' case did not overturn the result of D'Emden, since they would have arrived at the same result based on an application of section 109 of the Australian Constitution
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...

, which deals with inconsistency between state and federal legislation by specifying that the federal legislation will prevail. Evatt argued that the court had introduced a notion of supremacy which led to them misinterpreting the decision in D'Emden, saying that Griffith "regarded the rule... as one of mutual non-interference, and certainly not as perpetrating the absurdity of 'mutual supremacy'", that being the epithet with which the court in the Engineers' case had rejected any place for a doctrine of mutual immunity of instrumentalities. However, Evatt did concede that the Engineers' case showed that if any principle of immunity were to be revived, it "must have a far narrower operation in Australia than was first supposed by Griffith"; indeed, it has been said that the principle as laid down in D'Emden was of even broader application than that set out by Chief Justice Marshall in McCulloch v Maryland.
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