| Pirrie v McFarlane | |
| Court: | High Court of Australia |
| Date Decided: | 24 August 1925 |
| Citations: | (1925) 36 CLR 170. |
| Judges: | Knox CJ, Isaacs, Higgins, Rich and Starke JJ |
| Number Of Judges: | 5 |
| Decision By: | Knox CJ |
| Concurring: | Higgins and Starke JJ |
| Dissenting: | Isaacs and Rich JJ |
Pirrie v McFarlane[1] is a landmark decision of the High Court of Australia on Intergovernmental immunity between tiers of government in the Australian Constitution.
The defendant Thomas McFarlane was prosecuted under sec. 6 of the Motor Car Act 1915 (Victoria) as he drove a motor-car upon a public highway without being licensed. McFarlane’s defence was that as a duly enlisted member of the Royal Australian Air Force and that on the occasion in question he was on duty driving a car belonging to the Air Force, under orders from his superior officer, was thus on Air Force business.
The Police Magistrate dismissed the case, ruling that D'Emden v Pedder applied. The Supreme Court of Victoria declined to hear the case, as it involved a question as to the limits inter se of the constitutional powers of the State and the Commonwealth, leaving it to be considered by the High Court under s. 40A of the Judiciary Act 1903, which at that time stated:
Three questions needed to be considered by the High Court, before the case could be reviewed:[2]
The High Court unanimously agreed that s. 40A was valid, and that the Court could properly deal with the appeal at hand. It also held, by 3-2, that the State road laws did apply, the majority finding that ‘a soldier is also a citizen’.[3]
The minority relied partly on the exclusivity of the defence power, under Constitution s 51(vi), and partly on a perception that Commonwealth personnel generally have ‘special duties, rights and immunities that are outside the scope of ordinary citizenship.'[4]
The finding retained the constitutional interpretation that both levels of government could be subject to interference by the other, and that neither was absolutely immune from the other's laws. Knox CJ declared:
The case had also been appealed to the Judicial Committee of the Privy Council, which subsequently declined to pursue the matter, declaring that "the basis of the appeal has disappeared, and the other questions which are raised upon it, interesting as they might prove to be, have become academic so far as this case is concerned."[5]
Henderson v Defence Housing Authority.[6]