"The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities.": Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82 per Dixon J
In the joint judgment of six members of the Court in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, after discussing the judgment of Dixon J in Melbourne Corporation, their Honours said (at 227): "Although the comments of Dixon J were couched principally in terms of discrimination against States and the imposition of a particular disability or burden upon an operation or activity of a State or the execution of its constitutional powers, his Honour clearly had in mind, as did Latham CJ, Rich and Starke JJ, that the legislative powers of the Commonwealth cannot be exercised to destroy or curtail the existence of the States or their continuing to function as such[1]."
"The question presented by the doctrine in any given case requires assessment of the impact of particular laws by such criteria as "special burden" and "curtailment" of "capacity" of the States "to function as governments". These criteria are to be applied by consideration not only of the form but also "the substance and actual operation"[2] of the federal law": Austin v Commonwealth 215 CLR 185 per Gaudron, Gummow and Hayne JJ.
[1] Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 56, 60 per Latham CJ, 66 per Rich J, 74 per Starke J, 82 per Dixon J; see also Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 337-338 per Dixon J.
[2] Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 240; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 249-250; Victoria v The Commonwealth (1996) 187 CLR 416 at 500.