Page 2194 - Week 07 - Thursday, 17 June 1993

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THE HIGH COURT HANDED DOWN ITS DECISION IN BROPHO V WEST AUSTRALIAN DEVELOPMENT COMMISSION THE GENERAL RULE HAD BEEN THAT THE CROWN WAS NOT BOUND BY LEGISLATION UNLESS THAT LEGISLATION EITHER:

- SPECIFICALLY REFERRED TO BINDING THE CROWN; OR

- WOULD BE MEANINGLESS OR WHOLLY FRUSTRATED UNLESS TT WAS INTERPRETED AS BINDING THE CROWN.

THIS INTERPRETATION OF THE TEST WAS REJECTED BY THE HIGH COURT OF AUSTRALIA IN ITS DECISION IN THE BROPHO CASE.

THE ISSUE IN THAT CASE WAS WHETHER THE WESTERN AUSTRALIAN ABORIGINAL HERITAGE ACT 19T2 APPLIED TO THE STATE OF WESTERN AUSTRALIA AND A STATUTORY INSTRUMENTALITY OF THAT STATE, THE WEST AUSTRALIAN DEVELOPMENT CORPORATION. THE ACT, WHICH WAS OF GENERAL APPLICATION IN ITS TERMS, DID NOT EXPRESSLY STATE WI-IETHER OR NOT THE CROWN WAS BOUND BY THAT ACT.

THE HIGH COURT HELD THAT ALTHOUGH THERE IS A PRESUMPTION

THAT THE CROWN IS NOT BOUND BY STATUTES WHICH DO NOT

EXPRESSLY BIND IT, THIS PRESUMPTION CAN BE DISPLACED AS A

MATTER OF STATUTORY INTERPRETATION. TO DETERMINE WHETHER

OR NOT THE CROWN IS BOUND IN A PARTICULAR INSTANCE, THE

COURT WILL HAVE REGARD TO THE SUBJECT MATTER OF THE

STATUTE INCLUDING ITS PURPOSE AND POLICY. IN PARTICULAR, IF A

STATUI0RY AUTHORITY IS RUNNING ON A COMMERCIAL BASIS,

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