An Australian future for the anti-commandeering doctrine: Might it command operation?

Abstract Within the Australian Federation to what extent is the Commonwealth Parliament prevented from ‘conscripting’ or ‘commandeering’ State officers for its own purposes? Drawing on the history of commandeering both in the United States and in Australia, this article explores the constraints on the formulation of any Australian-based doctrine in light of recent High Court jurisprudence. This article argues that while the practical scope of any Australian-derived doctrine has been curtailed by the High Court, there is a role for it to play as a ‘per se’ breach of the Melbourne Corporation principle. But to have that effect, its ambit must be confined to situations where there is (i) an administrative duty imposed on (ii) a state statutory office holder or statutory body, where (iii) this has not been acquiesced to by the relevant state legislature or contemplated by the Constitution.