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80.

describe the exercise of executive power by the Commonwealth as a body politic[1], albeit that this expression is not without difficulties[2].

214 The primary sense of "the Commonwealth" as a body politic is not its only connotation. There are others[3]. For instance, the Commonwealth has also been extended beyond its character as a body politic to include all legal entities within the description of Commonwealth agencies and instrumentalities. This includes the creation of a new body corporate from that which would otherwise have fallen within the conception of the Commonwealth as a body politic. For instance, "the Commonwealth" as a party to a suit, within s 64 of the Judiciary Act 1903 (Cth), is not limited to the body politic of "the Commonwealth stricto sensu" but extends also to cases of "a statutory corporation representing the Crown in right of the Commonwealth"[4].

215 Another meaning of the Commonwealth is a secondary, or instrumental, conception, also used in the Constitution, to describe the "central organs of

  1. ↑ The Commonwealth v Rhind (1966) 119 CLR 584 at 599. As Dawson J observed in The Commonwealth v Mewett (1997) 191 CLR 471 at 498, this expression may have been first so described in The Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208 at 231. See also R v Sutton (1908) 5 CLR 789 at 805; Bank of New South Wales v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 362; Jacobsen v Rogers (1995) 182 CLR 572 at 585; The Commonwealth v Western Australia (1999) 196 CLR 392 at 409–411 [31]–[36], 429–431 [105]–[109]; Sue v Hill (1999) 199 CLR 462 at 501 [90].
  2. ↑ State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 291, 293; The Commonwealth v Western Australia (1999) 196 CLR 392 at 431 [108]–[109]; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at 13 [2], 41 [82], 45 [89], 51 [115], 55 [131]. See also Hartford Davis, "The Legal Personality of the Commonwealth of Australia" (2019) 47 Federal Law Review 3 at 9.
  3. ↑ Kruger v The Commonwealth (1997) 190 CLR 1 at 56; Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie (2004) 217 CLR 264 at 271 [23]; JT International SA v The Commonwealth (2012) 250 CLR 1 at 72 [185]. See also Hartford Davis, "The Legal Personality of the Commonwealth of Australia" (2019) 47 Federal Law Review 3 at 7–8.
  4. ↑ Maguire v Simpson (1977) 139 CLR 362 at 398. See further Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 143 [15]; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 581–582 [42]–[43].
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