Albyn Queensland Pty Ltd v Australian Postal Corporation
[2024] VSC 584
•20 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2024 01426
| ALBYN QUEENSLAND PTY LTD (ACN 139 661 699) atf THE BASS-REES FAMILY TRUST | Applicant |
| - and - | |
| AUSTRALIAN POSTAL CORPORATION | Respondent |
| - and - | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervener |
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JUDGE: | Harris J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2024 | |
DATE OF JUDGMENT: | 20 September 2024 | |
CASE MAY BE CITED AS: | Albyn Queensland Pty Ltd v Australian Postal Corporation | |
MEDIUM NEUTRAL CITATION: | [2024] VSC 584 | Revised on 24 September 2024 at [66] |
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JURISDICTION – Questions of law referred to the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal – Whether Australian Postal Corporation is the Commonwealth or a person being sued on behalf of the Commonwealth for the purposes of s 75(iii) of the Commonwealth Constitution – Whether the Tribunal would be exercising judicial power in hearing and determining proceeding – Whether the proceeding is a matter within federal jurisdiction – Whether the Tribunal has jurisdiction to hear proceeding – Victorian Civil and Administrative Tribunal Act 1998, s 96 – Australian Postal Corporation Act 1989 (Cth) – Burns v Corbett (2018) 265 CLR 304 – Deputy Commissioner of Taxation v State Bank of NSW (1992) 174 CLR 219 – Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 – Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 – Re Residential Tenancies Tribunal (NSW); ex parteDefence Housing Authority (1997) 190 CLR 410.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C McDermott | Victorian Bar Pro Bono Scheme |
| For the Respondent | Ms F Gordon KC with Mr J Maxwell | Australian Government Solicitor |
| For the Attorney-General for the State of Victoria | Ms S Zeleznikow with Mr L Chircop | Victorian Government Solicitor’s Office |
| Amicus Curiae | Ms K O’Gorman SC with Mr W Phillips | Victorian Bar Pro Bono Scheme |
TABLE OF CONTENTS
The Victorian Civil and Administrative Tribunal proceeding................................................. 1
The referred questions of law.......................................................................................................... 2
Procedural matters............................................................................................................................. 2
The constitutional limit on the jurisdiction of State tribunals................................................. 3
The issues for determination........................................................................................................... 5
Question (a): would the Tribunal exercise judicial power in hearing and determining the proceeding?................................................................................................................................... 7
Question (b): Is Australia Post ‘the Commonwealth’?............................................................ 11
Principles relevant to determining whether an entity is ‘the Commonwealth’................ 11
Key provisions of the APC Act.................................................................................................. 15
Are the functions of Australia Post governmental in nature?.............................................. 19
The positions taken by the parties.................................................................................. 19
Australia Post’s functions include but are not limited to functions which are governmental in character............................................................................................................. 24
Application of indicia relating to Australia Post’s relationship with the Commonwealth executive government....................................................................................................... 29
The circumstances of establishment of Australia Post................................................. 29
Australia Post’s financial relationship with the Commonwealth.............................. 30
Whether the Commonwealth has the power to appoint directors............................. 32
Whether Australia Post staff are appointed as employees under the Public Service Act 33
Whether the Commonwealth executive participates in Australia Post’s formulation of policy or decision making.................................................................................... 34
Whether Australia Post is subject to audit by the Commonwealth Auditor General and other Commonwealth accountability controls.................................................. 37
Immunities or privileges of Australia Post.................................................................... 38
The effect of all relevant factors....................................................................................... 40
Conclusion as to status of Australia Post................................................................................ 40
Conclusion: Australia Post is ‘the Commonwealth’ for the purposes of s 75(iii).............. 42
Question (c): does the Tribunal have jurisdiction?................................................................... 42
Issue as to whether a federal claim is raised in the Application.......................................... 42
The duty and power of the Tribunal to decide its jurisdiction.............................................. 46
Conclusion......................................................................................................................................... 48
HER HONOUR:
The Victorian Civil and Administrative Tribunal proceeding
Albyn Queensland Pty Ltd, the Applicant, is party to a licensing agreement with the respondent, Australia Post, pursuant to which the Applicant was entitled to operate a licensed post office in Nundah, Queensland (the LPO Agreement).[1]
[1]Orders of Justice Woodward, President of the Tribunal, 25 March 2024 (Referral Orders), Remarks, [R(a)–(b)].
In 2020, after Australia Post issued the Applicant with a notice of default under the LPO Agreement, they entered into negotiations in relation to the exit of the Applicant from the licensed post office network. On 4 March 2021, the parties executed a Deed of settlement and release, providing for the Applicant to transfer the licensed post office business to a third party within a specified period and for the Applicant to pay $15,000 to Australia Post in relation to the alleged default. On 18 October 2021, the Applicant transferred the business to a third party.[2]
[2]Referral Orders, Remarks, [R(c)–(e)].
On or around 23 May 2022, the Applicant lodged an application against Australia Post in the Victorian Civil and Administrative Tribunal, making claims which related to the LPO Agreement and the Deed, and which were described as being under the Australian Consumer Law and Fair Trading Act 2012 (Vic) and ‘Franchise Code of Conduct Legislation’ (the Application).[3]
[3]Referral Orders, Remarks, [R(f)–(h)]. See also the Application to the Tribunal, (provided with the Referral Orders at order 2(d)) at page 1.
On 16 March 2023, Australia Post raised an objection to the Tribunal’s jurisdiction, on the basis that it is ‘the Commonwealth’ within the meaning of s 75(iii) of the Commonwealth Constitution. The Tribunal received submissions from the parties on the question of jurisdiction. The Applicant submitted that the Tribunal has jurisdiction, and Australia Post made submissions to the effect that the Tribunal does not have jurisdiction.[4]
[4]Referral Orders, Remarks, [R(i)–(j)].
On 25 March 2024, Justice Woodward, President of the Tribunal, made orders referring questions of law to this Court pursuant to s 96 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
The referred questions of law
Justice Woodward’s orders identified the questions referred to this Court, and made findings of fact for the purposes of the referral.[5]
[5]As is necessary in a referral of this nature: Chopra v Department of Education and Training [2019] VSCA 298, [74].
The referred questions were as follows:
a.Would the Victorian Civil and Administrative Tribunal (the Tribunal) exercise judicial power in hearing and determining the claim brought against the respondent in this proceeding?
b.Is the respondent in this proceeding “the Commonwealth, or a person … being sued on behalf of the Commonwealth” for the purposes of s 75(iii) of the Commonwealth Constitution?
c.In light of the answers to Questions 1 and 2, does the Tribunal have jurisdiction to hear and determine the claim brought against the respondent in this proceeding?
Questions involving similar issues were referred to this Court pursuant to s 96 by Woodward J in a separate matter involving the Australian Broadcasting Corporation, including a question as to whether that corporation is ‘the Commonwealth or a person being sued on behalf of the Commonwealth’. Judgment in that proceeding has been given: An v Australian Broadcasting Corporation (An v ABC).[6] In light of several common issues in the two proceedings I will refer in these reasons to aspects of that decision.
[6][2024] VSC 518.
Procedural matters
Notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were served by Australia Post on the Attorneys-General of the States and Territories. The Attorney-General for the State of Victoria intervened in the proceeding. The Attorney-General made submissions which did not take a position on whether Australia Post is ‘the Commonwealth’ for the purposes of s 75(iii), nor whether the Tribunal would exercise judicial power in determining the Applicant’s claims in the Tribunal, but focussed on the Tribunal’s jurisdiction, and its power and duty to determine the question of jurisdiction.
As the Applicant was unrepresented, I made a referral to the Victorian Bar Pro Bono scheme seeking the assistance of counsel to appear as Amicus Curiae. That referral was accepted by Ms Kateena O’Gorman SC and Mr William Phillips of counsel. In the course of filing material it became apparent that there were specific issues that the Applicant wished to raise, including as to admissibility of certain published material relating to the functions of Australia Post, and that it was necessary for the Applicant corporation to be represented in order to do so. Mr Christopher McDermott of counsel accepted a referral to appear for the applicant.
The constitutional limit on the jurisdiction of State tribunals
In Burns v Corbett the High Court held that an implication arises from Chapter III of the Constitution that a State parliament lacks legislative capacity to confer on a tribunal that is not a court of a State within the meaning of s 77(ii) and (iii) of the Constitution judicial power with respect to any matters in ss 75 and 76 of the Constitution.[7] Consequently State legislation conferring jurisdiction on a State tribunal must, consistent with the relevant State statutory interpretation legislation (here, s 6(1) of the Interpretation of Legislation Act 1984 (Vic)), be construed as excluding jurisdiction with respect to these matters.[8]
[7](2018) 265 CLR 304, 325-326 [1]-[3] (Kiefel CJ, Bell and Keane JJ), 346 [68]–[69] (Gageler J).
[8]Burns v Corbett, 345 [64] (Kiefel CJ, Bell and Keane JJ); 364 [120] (Gageler J).
The established constitutional propositions relevant to the jurisdiction of the Tribunal, as a tribunal of the State of Victoria, were recently summarised by the Court of Appeal in Krongold Constructions (Aust) Pty Ltd v Thurin[9] in a way which provides a useful legal background to the present questions, as was the case with An v ABC.[10] The Court of Appeal stated:[11]
[9](2023) 414 ALR 1.
[10]An v ABC, [9]–[10].
[11]Krongold v Thurin, 12 [37] (with original footnotes included below).
It is convenient to reiterate some important but uncontroversial constitutional propositions:
(a)First, only a court established under Ch III of the Constitution or a court of a State within the meaning of that Chapter can exercise federal judicial power.[12]
(b)Second, only the Commonwealth Parliament can confer federal jurisdiction on a court and regulate its exercise.[13]
(c)Third, it follows from the second proposition that State Parliaments have no power to legislate with respect to the conferring of federal jurisdiction or regulating its exercise. This is a limitation on State legislative power. It is not a product of the application of s 109 of the Constitution.[14]
(d)Fourth, federal judicial power is conferred and regulated in respect of a ‘matter’ within the meaning of Ch III which for present purposes can be described, incompletely, as a justiciable controversy in respect of existing rights, duties or liabilities that might come before a court.[15]
(e)Fifth, the Commonwealth Parliament through ss 39, 68 and 79 of the Judiciary Act 1903 (Cth) has invested State courts with federal jurisdiction and regulated the exercise of that jurisdiction, essentially by ‘picking up’ State laws so that they apply in federal jurisdiction, subject to the Commonwealth otherwise providing in relevant respects.[16]
(f)Sixth, the determination by VCAT of a ‘building dispute’ by the making of binding orders involves the exercise of judicial power.
(g)Seventh, although VCAT can and does validly exercise State judicial power, VCAT is not a court of a State within the meaning of Ch III and cannot be invested with or exercise federal judicial power.[17]
[12]R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
[13]Rizeq v Western Australia (2017) 262 CLR 1, [59] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[14]Rizeq, [60]–[61] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[15]Palmer v Ayres (in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq) (2017) 259 CLR 478, [26]–[27] (Kiefel CJ, Keane, Nettle and Gordon JJ).
[16]Rizeq, [63] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[17]Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group) (2020) 60 VR 361.
The observation at (f) was made because the case involved a dispute relating to a domestic building contract made under the Domestic Building Contracts Act 1995 (Vic), with a defence raised under Commonwealth legislation, the Trade Practices Act 1974 (Cth). The Application in this case was made pursuant to the Fair Trading Act. There is an issue between the parties as to whether it was also made pursuant to Commonwealth legislation, by reason of the reference in the Application to the ‘Franchise Code of Conduct Legislation’.[18] As discussed below, the parties were, however, in agreement that the resolution of the claim by the Tribunal would involve the exercise of judicial power.[19]
[18]Submissions on behalf of the Respondent filed 10 May 2024, [39]; Submissions of the Amicus Curiae filed 21 June 2024, [62]; Submissions of the Applicant filed 22 July 2024, [47].
[19]Submissions on behalf of the Respondent filed 10 May 2024, [3(1)]; Submissions of the Amicus Curiae filed 21 June 2024, [2(1)]; Submissions of the Applicant filed 22 July 2024, [3].
The issues for determination
The constitutional limitation in Burns v Corbett will apply where three conditions are met:[20]
[20]See Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191, [42] (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing).
(a) The resolution of the dispute will involve the exercise of judicial power.
(b) The decision maker is not a court within the meaning of Ch III of the Constitution. It is established that the Tribunal is not such a court,[21] and this issue does not require further consideration.
[21]Meringnage, [98] (Tate, Niall and Emerton JJA).
(c) The proceeding is of a kind described in ss 75 or 76 of the Constitution.
(i) Relevantly in this case, s 75(iii) of the Constitution gives the High Court original jurisdiction in all ‘matters … [i]n which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’.
(ii) Section 76 empowers the Commonwealth Parliament to confer additional original jurisdiction on the High Court in other ‘matters’, including relevantly in s 76(i) ‘any matter … [a]rising under this Constitution, or involving its interpretation’ and in s 76(ii) any matter ‘[a]rising under any laws made by the Parliament’.
Referred Question (a) addresses the first condition above, and requires an analysis of the nature of the power that the Tribunal would exercise if it was to hear and determine the proceeding issued by the Applicant against Australia Post. For the reasons below, the Tribunal would be exercising judicial power, and the answer to Question (a) is ‘Yes’.
Question (b) arises in the context of the third condition, in that it requires consideration of whether Australia Post is ‘the Commonwealth, or a person suing or being sued on behalf of the Commonwealth’, so that the Tribunal proceeding would be a matter within s 75(iii) of the Constitution. For the reasons below, I have determined that Australia Post is ‘the Commonwealth’ for the purposes of s 75(iii) of the Constitution.
The answer to Question (c) will follow from the answers to Questions (a) and (b). As Australia Post is ‘the Commonwealth’, the proceeding in the Tribunal to which it is party is a matter within s 75(iii), the resolution of which would require the exercise of judicial power. The Tribunal, as a tribunal of the State which is not a court, has no jurisdiction to hear and determine the claim. The answer to Question (c) is, therefore, ‘No’.
There is an issue, which would be essential to determine only if the answer to Question (a) or (b) was ‘No’, as to whether the proceeding otherwise involves a matter within ss 75 or 76 of the Constitution. That involves whether the Applicant makes a claim arising under a Commonwealth law. Had it been necessary to consider this issue I would have concluded that it was not currently possible to answer this on the facts as found by the President at this stage of the proceeding, or the terms of the document by which the Application was made.
Finally, the submissions of the Attorney-General raise the issue of the Tribunal’s power and duty to decide the issue of jurisdiction. Although it is not strictly necessary to determine in order to answer the referred questions, this issue was considered in An v ABC, and I repeat below some of the observations I made in that case. In summary, the Tribunal has a power and duty to decide the issue of its jurisdiction, by making a conclusion of a non-binding nature to enable it to perform its functions and stay within the limits of its powers. It is open to refer a question of law to this Court pursuant to s 96 of the VCAT Act to obtain answers to legal questions to assist it in reaching this conclusion.
Question (a): would the Tribunal exercise judicial power in hearing and determining the proceeding?
All parties, with the exception of the Attorney-General who did not address the issue, submitted that the Tribunal would be exercising judicial power in determining the Application. For the purposes of answering the question referred by the Tribunal, it is appropriate to set out the reasons why the parties were correct in that view.
The nature of judicial power has not been exhaustively defined, but the following matters are indicative of a power being judicial in nature.
(a) The power is exercised to quell a controversy about existing legal rights by ascertaining facts and applying the law (as opposed for example to making decisions by reference to policy considerations of a non-legal kind).[22]
[22]Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 189 (the Court).
(b) The exercise of the power is binding and enforceable (including through a process of registration in a court).[23]
[23]Brandy, 269-270 (Deane, Dawson, Gaudron and McHugh JJ).
(c) The decision making functions involved in the trial of actions for breach of contract and civil wrongs have been recognised as ‘inalienable exercises of judicial power’.[24]
(d) The power extends to making orders traditionally made in the exercise of judicial power, such as orders for damages, injunctions and declarations.[25]
(e) The process by which the power is to be exercised includes hallmarks of the judicial process such as procedural fairness, a public hearing, and the provision of reasons for decisions.[26]
[24]Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 258 (Mason CJ, Brennan and Toohey JJ); 269 (Deane, Dawson, Gaudron and McHugh JJ).
[25]Brandy, 269 (Deane, Dawson, Gaudron and McHugh JJ).
[26]Wainohu v New South Wales (2011) 243 CLR 181, 209 [44] and 214 [54] (French CJ and Kiefel J).
It has already been recognised that the determination of an application by the Tribunal may, depending on the nature of the application before it, involve the exercise of judicial power. In Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group)[27] the Court of Appeal held that the Tribunal is exercising judicial power when hearing and determining a matter under the Equal Opportunity Act 2010 (Vic). The Court held that the range and character of the orders that the Tribunal can make on a finding of a contravention of a norm prescribed by the Equal Opportunity Act, together with the potential to have the orders of the Tribunal enforced through the Courts, had the effect that the Tribunal would be exercising judicial power.[28]
[27](2020) 60 VR 361.
[28]Meringnage, [107]–[108]. It was also accepted in Thurin v KrongoldConstructions (Aust) Pty Ltd (2022) 407 ALR 187 that the Tribunal’s exercise of power to resolve a domestic building dispute under the Domestic Building Contracts Act1995 (Vic) constitutes an exercise of judicial power: Thurin v Krongold, [37].
In this case, the Application raises claims under the Fair Trading Act, including that the LPO Agreement and the Deed were unfair and that Australia Post breached its obligations under the Deed. The Applicant seeks orders that the Deed is void, for repayment of the amount paid by the Applicant to Australia Post, and for damages.
The Fair Trading Act gives the Tribunal jurisdiction to determine consumer claims, including a consumer and trader dispute,[29] actions for damages for contraventions of the Fair Trading Act,[30] and actions arising under the Australian Consumer Law (as applied as a law of Victoria by s 8(1) of the Fair Trading Act) (ACL (Vic)).[31] The Tribunal’s jurisdiction under the Fair Trading Act to hear and determine an action for damages, a cause of action under the ACL (Vic) or a consumer and trader dispute is broadly concurrent with the jurisdiction of Victorian courts.[32] Where an application is made to the Tribunal its jurisdiction is exclusive of the courts, unless there was a proceeding already commenced in the court or the application to the Tribunal is withdrawn, struck out or referred to a court under s 77 of the VCAT Act.[33]
[29]Fair Trading Act, ss 182, 184(1).
[30]Fair Trading Act, s 217.
[31]Fair Trading Act, ss 223–224.
[32]Fair Trading Act s 224.
[33]Fair Trading Act, s 187(1); Submissions of the Amicus Curiae filed 21 June 2024, [16(2)].
The Tribunal can make orders for payment of damages and restitution,[34] and can make any order it considers fair including declaring void any unjust term of a contract or varying a contract.[35] Orders for payment of a monetary amount may be enforced in the Magistrates’ Court, or the County Court or Supreme Court, depending on the amount of the order, and enforced as an order of that court.[36] Non-monetary orders may be enforced in the Supreme Court.[37]
[34]Fair Trading Act, s 184(2).
[35]Fair Trading Act, s 185.
[36]VCAT Act, s 121.
[37]VCAT Act, s 122.
In Qantas Airways Ltd v Lustig,[38] Perry J in the Federal Court held that the Tribunal exercised judicial power when hearing and determining consumer disputes under the Fair Trading Act 1999 (Vic), the predecessor legislation to the Fair Trading Act which relevantly involved the same powers on the part of the Tribunal. That conclusion of her Honour was referred to with approval by the Court of Appeal in Meringnage.[39]
[38](2015) 228 FCR 148, 163-164, [65]-[66].
[39]Meringnage, 395 [104] (Tate, Niall and Emerton JJA).
Applying the indicia of judicial power in the present case, it remains the case that the Tribunal, in determining an application of this kind arising under the Fair Trading Act, would be exercising judicial power.
First, the consumer-trader dispute involving claims of the nature made in the Application would involve elements of the law of contract, and determinations as to breach, which is a recognised exercise of judicial power.[40] This is reinforced by the fact that the Tribunal’s jurisdiction under the Fair Trading Act to hear relevant actions is broadly concurrent with the jurisdiction of Victorian courts.[41]
[40]Brandy, 258 (Mason CJ, Brennan and Toohey JJ); 269 (Deane, Dawson, Gaudron and McHugh JJ).
[41]Fair Trading Act, s 224. See paragraph [24] above.
Secondly, the orders that the Tribunal may make include monetary orders and declarations, which are traditionally made in the exercise of judicial power.[42] Those orders are immediately effective when made,[43] may be enforced through registration in the courts.[44]
[42]Brandy, 269 (Deane, Dawson, Gaudron and McHugh JJ).
[43]VCAT Act, s 118(1).
[44]Brandy, 269–270 (Deane, Dawson, Gaudron and McHugh JJ).
Thirdly, the powers of the Tribunal in an application such as this would be exercised to quell a controversy between the Applicant and Australia Post about existing legal rights arising under the LPO Agreement and the Deed, by ascertaining facts and applying the law.[45]
[45]Precision Data Holdings, 189 (the Court).
Finally, the processes by which the Tribunal would exercise its powers in an application of the present kind bear characteristics of a judicial process, as the Tribunal must apply the rules of procedural fairness,[46] and must generally conduct hearings in public.[47]
[46]VCAT Act, s 98(1)(a).
[47]Open Courts Act 2013 (Vic) ss 4(2), 28 (applicable to the Tribunal — see definition of ‘court or tribunal’ at s 3).
Although procedures in the Tribunal do not accord in some ways with those in a court, such as the Tribunal’s power to inform itself on any matter as it sees fit and the fact that it is not bound by the rules of evidence,[48] these characteristics do not override the otherwise judicial nature of the Tribunal’s powers in a proceeding such as that brought by the Applicant.
[48]VCAT Act, ss 98(b) and (c).
For these reasons, the Tribunal would, were it to proceed to hear and determine the claim brought by the Applicant against Australia Post, exercise judicial power. Question (a) must, therefore, be answered ‘Yes’.
Question (b): Is Australia Post ‘the Commonwealth’?
The parties took different positions as to whether Australia Post was ‘the Commonwealth’ for the purposes of s 75(iii).
Australia Post contended that it is the Commonwealth, because it is a body that carries out governmental functions, and is subject to a significant degree of government direction and involvement.[49]
[49]Submissions on behalf of the Respondent filed 10 May 2024, [3(2)].
The Amicus made submissions that emphasised the breadth of the concept of ‘the Commonwealth’ as established in High Court authority, and analysed the various indicia established in the case law relevant to whether a statutory corporation is the Commonwealth. The Amicus concluded that on balance, the various considerations indicated that Australia Post is an agency or instrumentality of the Commonwealth.[50]
[50]Submissions of the Amicus Curiae filed 21 June 2026, [20]–[23].
The Applicant contended that the position was not as straightforward as suggested by Australia Post, and that a holistic analysis of the legislative scheme pursuant to which Australia Post is constituted also provides support for the conclusion that it is an entity separate from the Commonwealth.[51]
[51]Submissions of the Applicant filed 22 July 2024, [38] and [46].
The submissions made in support of these positions are considered in more detail below.
Principles relevant to determining whether an entity is ‘the Commonwealth’
The question of whether a statutory corporation is ‘the Commonwealth’ for the purposes of s 75(iii) of the Constitution arose in An v ABC, where I discussed the legal principles relevant to assessing whether the ABC was ‘the Commonwealth’.[52] Those principles are also directly relevant in this case, and were the subject of submissions drawing on the same authorities. Some of that discussion of the principles is repeated in the analysis below.
[52]An v ABC, [23]–[28].
The reference to ‘the Commonwealth’ in s 75(iii) of the Constitution is to organisations or institutions of government assessed in accordance with the conceptions of ordinary life.[53] The purpose of s 75(iii) ‘was to ensure that the political organization called into existence under the name of the Commonwealth and armed with enumerated powers and authorities, limited by definition, fell in every way within a jurisdiction in which it could be impleaded and which it could invoke.’[54]
[53]Deputy Commissioner of Taxation v State Bank of NSW (1992) 174 CLR 219 (DCT v State Bank of NSW), 230 (the Court); Queanbeyan City Council v ACTEW Corporation Limited (2011) 244 CLR 530, 543 [24] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[54]Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 363 (Dixon J).
There is no material difference for present purposes between whether an entity is ‘the Commonwealth’, or ‘a person suing or being sued on behalf of the Commonwealth’ in s 75(iii).[55] It is established that the latter phrase was added to ensure that the s 75(iii) jurisdiction of the High Court extended to cases in which the Commonwealth itself was not the nominal defendant or plaintiff, and is not a reason to read references to the Commonwealth in any restricted sense.[56]
[55]Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, 40–42 (Mason, Wilson, Brennan, Deane and Dawson JJ).
[56]DCT v State Bank of NSW, 230, 232 (the Court); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 (ASIC v Edensor Nominees), 581-582 [42]–[43] (Gleeson CJ, Gaudron and Gummow JJ); Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136, 152– 153 [48] (McHugh J).
The reference to ‘the Commonwealth’ is wide enough to refer to a corporation which is an agency or instrumentality of the Commonwealth, so that incorporation or establishment as a body corporate does not indicate that the entity is not the Commonwealth.[57] The focus of the inquiry, in determining whether a statutory corporation is ‘the Commonwealth’, is whether on the one hand the statutory corporation is discharging governmental functions for the Commonwealth, or the Commonwealth is carrying out governmental activity through the corporation;[58] or on the other hand it is a corporation brought into existence to perform its functions independently of the Commonwealth, and otherwise than as a Commonwealth instrument.[59]
[57]DCT v State Bank of NSW, 230-231; ACTEW, 543 [24]; ASIC v Edensor Nominees, 580 [39].
[58]DCT v State Bank of NSW, 233 (the Court); SGH Limited v Federal Commissioner of Taxation (2002) 210 CLR 51, 67–68 [16] (Gleeson CJ, Gaudron, McHugh and Hayne JJ).
[59]Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334, 337-338 (Kitto J).
The authorities demonstrate that this is to be determined by reference to the characteristics of the corporation under the legislation by which it was established,[60] and other legislation relevant to the entity’s powers, status and duties. The issue is not to be determined by reference to the actual activity of the corporation; the statutory provisions are the defining consideration.[61]
[60]DCT v State Bank of NSW, 233 (the Court); Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, 347 (Stephen J), ASIC v Edensor Nominees, 580-581 [39]–[40] (Gleeson CJ, Gaudron and Gummow JJ).
[61]Superannuation Fund Investment Trust, 347-348 (Stephen J), 351 (Mason J); SGH Limited, 102 [129] (Callinan J).
The question of whether an entity is ‘the Commonwealth’ for the purposes of the Constitution is distinct from the question of whether it attracts privileges and immunities of the Crown in right of the Commonwealth, given that not all Commonwealth entities are regarded as the Crown.[62] Although the fact that a statutory corporation does have such privilege or immunity would be an indicator of alignment with the Commonwealth,[63] the converse does not necessarily follow.
[62]DCT v State Bank of NSW, 230; Maguire v Simpson (1977) 139 CLR 362, 406 (Jacobs J).
[63]Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 57 [153] (Gummow J).
The consideration of whether a statutory corporation is ‘the Commonwealth’ involves considering two broad matters.
(a) First, the nature of the activities undertaken by the entity and whether they have a governmental character.[64] While it is recognised that there is no specific dividing line between governmental functions and non-governmental functions, there are some functions which are more clearly governmental in nature, such as regulatory functions.[65]
(b) Second, the legal relationship between the entity and the executive government of the Commonwealth, and the degree of control that the executive may exercise over the corporation.[66]
[64]Inglis, 337-338, where Kitto J recognised that ‘The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally accepted governmental character may well help in the ascertainment of legislative intention.’ (emphasis added).
[65]State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639, 651 (the Court). ASIC, with its regulatory functions, has been determined to be ‘the Commonwealth’: ASIC v Edensor Nominees, 580–81 [39]–[40].
[66]SGH Limited, 67–68 [16].
In considering the degree of control that the executive may exercise over the statutory corporation and the legal relationship between them, the following matters have been recognised as particularly relevant:[67]
[67]See generally the observations of McHugh J in ASIC v Edensor Nominees, [126]-[127]; and the summary of factors by Callinan J in SGH Limited, 103, [131], cited in ACTEW, 545 [30] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Some of these factors are identified and applied in the cited authorities in considering whether a statutory corporation is ‘a State’ for constitutional or other purposes; that does not give rise to any material distinction for present purposes.
(a) the circumstances of establishment of the corporation and whether the corporation was established in pursuit of a public interest;[68]
[68]Inglis, 339; SGH Limited, 68–70 [17]–[22].
(b) whether there are corporators (the absence of corporators being an indicator that the intention of Parliament was to create for the Commonwealth an outward form as a convenient means of carrying on government activity);[69]
[69]Inglis, 339; ASIC v Edensor Nominees, 608 [127] (McHugh J).
(c) whether the Commonwealth executive participates in the corporation’s formulation of policy or in decision making;[70]
[70]SGH Limited, 103 [131]; ACTEW, [30].
(d) whether the Commonwealth has the power to appoint directors;[71]
[71]Inglis, 339; State Bank of NSW v Commonwealth Savings Bank of Australia, 650.
(e) whether the corporation’s staff are appointed as employees under the Public Service Act 1999 (Cth);[72]
(f) whether the corporation is subject to audit by the Commonwealth Auditor-General;[73] and
(g) whether the corporation is funded by appropriations from consolidated revenue.[74]
[72]ASIC v Edensor Nominees, 580 [39]-[40], referring to the former Public Service Act 1922 (Cth).
[73]ASIC v Edensor Nominees, 580 [39]–[40]; State Bank of NSW v Commonwealth Savings Bank of Australia, 651.
[74]ASIC v Edensor Nominees, 580 [39]–[40]; State Bank of NSW v Commonwealth Savings Bank of Australia, 651.
It is necessary to consider the Australian Postal Corporation Act 1989 (Cth) (APC Act) with these indicia in mind in order to determine whether Australia Post is ‘the Commonwealth’.
Key provisions of the APC Act
There are certain key features of the APC Act which are relevant to the status of Australia Post which are useful to identify before considering the submissions of the parties.
The Australian Postal Commission was created as a Commission by the Postal Services Act 1975 (Cth).[75] The Postal Services Amendment Act 1988 (Cth) provided that the Australian Postal Commission was ‘preserved and continued in existence, under the name of the Australian Postal Corporation’, and that the Corporation ‘continues to be a body corporate’.[76] The APC Act provides that ‘[t]he Australian Postal Corporation continues in existence’ and continues to be a body corporate.[77]
[75]Section 5.
[76]Section 5, replacing the existing s 5 and introducing a new s 5A which in addition to providing that the Corporation ‘continues to be a body corporate’ provided that it shall have a seal, ‘may acquire, hold and dispose of real and personal property’, and ‘may sue and be sued in its corporate name’.
[77]APC Act, ss 12 and 13.
The initial capital of Australia Post under the APC Act was to be determined by the Minister after consultation with the Board.[78] Its capital may be supplemented by moneys appropriated by Parliament.[79] Australia Post is not required to pay interest to the Commonwealth on its capital, but the Minister may direct after consultation with the Board that capital is repayable to the Commonwealth.[80] The Board may recommend to the Minister that Australia Post pay a dividend to the Commonwealth, such dividend to not exceed Australia Post’s profit for the financial year.[81] Australia Post is subject to Commonwealth and to State / Territory taxation.[82]
[78]APC Act, s 51.
[79]APC Act, s 52(1)(c).
[80]APC Act, s 52(2).
[81]APC Act, s 54.
[82]APC Act, s 63.
Australia Post has a Board of Directors consisting of a Chairperson, Deputy Chairperson, Managing Director and no more than six other directors.[83] The role of the Board is to decide the objectives, strategies and policies to be followed by Australia Post and to ensure that it performs its functions in a manner that is proper, efficient, and as far as practicable, consistent with sound commercial practice.[84] However the Minister may, after consultation with the Board, give the Board such directions in relation to the performance of its functions as appear to the Minister to be in the public interest.[85]
[83]APC Act, ss 20, 21 and 22.
[84]APC Act, s 23.
[85]APC Act, s 49.
The functions of Australia Post are identified in ss 14 to 16 of the APC Act:
14 Functions — the principal function
The principal function of Australia Post is to supply postal services within Australia and between Australia and places outside Australia.
15 Functions — subsidiary function
A subsidiary function of Australia Post is to carry on, outside Australia, any business or activity relating to postal services.
16 Functions — incidental businesses and activities
(1)The functions of Australia Post include the carrying on, within or outside Australia, of any business or activity that is incidental to:
(a)the supplying of postal services under section 14; or
(b)the carrying on of any business or activity under section 15.
(2)Without limiting subsection (1), the functions of Australia Post include the carrying on, within or outside Australia, of any business or activity that is capable of being conveniently carried on:
(a) by the use of resources that are not immediately required in carrying out Australia Post’s principal or subsidiary function; or
(b) in the course of:
(i)supplying postal services under section 14; or
(ii)carrying on any business or activity under section 15.
Australia Post has a general power to do all things necessary or convenient to be done for or in connection with the performance of its functions, and a range of postal and postal related powers including, for example, to supply parcel services, courier services and funds transfer services.[86] It is also specifically given all the powers of a natural person for or in connection with the performance of its functions. These include powers to enter into contracts, deal with real and personal property, form companies, participate in partnerships, issue debentures and grant floating charges on its property, and to provide consultancy and project management services.[87]
[86]APC Act, ss 17, 18.
[87]APC Act, s 19(1).
Under the APC Act Australia Post has a ‘commercial obligation’, ‘community service obligations’ and ‘general governmental obligations’.[88] These are described as follows:
[88]APC Act, s 25.
26 Commercial obligation
Australia Post shall, as far as practicable, perform its functions in an manner consistent with sound commercial practice.
27 Community service obligations
(1) Australia Post shall supply a letter service.
(2)The principal purpose of the letter service is, by physical means:
(a)to carry, within Australia, letters that Australia Post has the exclusive right to carry; and
(b)to carry letters between Australia and places outside Australia.
(3)Australia Post shall make the letter service available at a single uniform rate of postage for the carriage within Australia, by ordinary post, of letters that are standard postal articles.
(4)Australia Post shall ensure:
(a)that, in view of the social importance of the letter service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b)that the performance standards (including delivery times) for the letter service reasonably meet the social, industrial and commercial needs of the Australian community.
(5) In this section:
Australia includes Norfolk Island, Christmas Island and Cocos (Keeling) Islands, but does not include any other external Territory to which this Act extends.
28 General governmental obligations
Australia Post shall perform its functions in a way consistent with:
(a)any government policy orders that apply in relation to Australia Post under section 22 of the Public Governance, Performance and Accountability Act 2013;
(b)any directions given by the Minister under section 49; and
(c)Australia’s obligations under any convention.
Australia Post has the exclusive right to carry letters within Australia, whether they originate within or outside Australia, subject to a range of exceptions.[89]
[89]APC Act, ss 29 and 30.
Australia Post is a ‘corporate Commonwealth entity’ for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPAAct).[90] In that capacity it is subject to certain controls and oversight by the Commonwealth executive under that Act. Australia Post is also audited by the Commonwealth Auditor-General.[91]
[90]PGPA Act, s 10 (definition of Commonwealth entity) and s 11 (corporate and non-corporate Commonwealth entities). Australia Post is not a Commonwealth company as defined by s 89(1) as it was not incorporated under the Corporations Act 2001 (Cth) but by the Postal Services Act. See also the note to s 13 of the APC Act, which states ‘the Public Governance, Performance and Accountability Act 2013 applies to Australia Post. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources’.
[91]APC Act, s 28D(1).
Australia Post is also prescribed to be a ‘government business enterprise’ by the Public Governance, Performance and Accountability Rule 2014 (Cth), for the purposes of s 8 of the PGPA Act,[92] which defines a ‘government business enterprise’ to mean a ‘Commonwealth entity or Commonwealth company that is prescribed by the rules’. That status has limited significance in the PGPA Act, but by s 59 of that Act does give such an enterprise greater flexibility than other Commonwealth entities to make investments. This is because in addition to stipulated categories of investment in which Commonwealth entities are entitled to invest, a government business enterprise is permitted to invest in ‘any other form of investment that is consistent with sound commercial practice’.[93]
[92]Public Governance, Performance and Accountability Rule 2014, rule 5(1).
[93]PGPA Act, s 59(1)(v).
Are the functions of Australia Post governmental in nature?
The positions taken by the parties
Australia Post characterised its functions and activities as being governmental in nature, based on features of the APC Act and in particular on the ‘community service obligations’ and ‘general governmental obligations’ imposed on Australia Post under the Act.[94] It referred in particular to the community service obligations to provide the letter service at a single uniform rate of postage throughout Australia, and the recognition in s 27 of the APC Act of the ‘social importance of the letter service’, which requires that it be ‘reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business’. Pursuant to its general governmental obligations, Australia Post’s functions must be performed in a way consistent with government policy orders issued under the PGPA Act, any directions given by the Minister and any obligations under international conventions.[95] It also noted the effective statutory monopoly of Australia Post in the provision of the letter service and the right to issue postage stamps,[96] and the powers of the Federal Court to require any person who infringes the rights of Australia Post to provide the reserved services to pay a pecuniary penalty to the Commonwealth.[97]
[94]Submissions of the Respondent filed 10 May 2024, [31], referring to APC Act ss 27 and 28.
[95]Submissions of the Respondent filed 10 May 2024, [31](2) and (3).
[96]Submissions of the Respondent filed 10 May 2024, [31](5), referring to s 29 of the APC Act.
[97]APC Act, s 30A(2).
Australia Post submitted that the governmental character of its functions was confirmed by the history of postal services in Australia. It relied in submissions on reference to a limited number of historical records and texts which made observations on the historical provision of postal services. Given the limits on the ability of this Court to make any factual findings and thus to receive evidence directed to factual matters, I have not had regard to certain of these materials. While they may arguably be admissible as extrinsic materials relevant to the interpretation of the APC Act, there was no argument directed to that question and ultimately I have not found it necessary to have recourse to the materials in considering the issue of how Australia Post’s functions should be characterised, for reasons elaborated below.
Australia Post also relied on observations in two High Court cases which bear on the historical context of the provision of postal services and their place in Australian society, to which I can have regard.
(a) In Monis v R French CJ observed, having regard to historical English and State legislation:[98]
[98]Monis v R (2013) 249 CLR 92, 117–118 [31]–[33].
The provision by government of postal services available to the general public dates back, in England, to 1635 in the reign of Charles I, when the Royal Mail was made available for that purpose. Imperial legislation in the reign of Queen Anne created the office of Postmaster-General for the United Kingdom and provided for that official to establish post offices in the colonies.
… Postal services developed in each of the colonies. By the end of the nineteenth century colonial postal services were established throughout the Australian continent and were supported by an array of statutes. …
In the Australasian Convention Debates at Adelaide in 1897, there was some discussion about whether the Commonwealth Parliament should have legislative responsibility for both postal and telegraphic services. However, the national significance of those services never seems to have been in doubt.
(b) In Bradley v The Commonwealth Barwick CJ and Gibbs J observed that:[99]
…there can be no doubt that the postal and telephone services are among the most important amenities available to the people of the Commonwealth, and are essential to the conduct of trade and commerce as well as to the enjoyment of any real freedom in the dissemination of information and opinion.
Their Honours regarded it as appropriate to have regard to these considerations when considering the Post and Telegraph Act 1901-1971 (which preceded the Postal Services Act).
[99](1973) 128 CLR 557, 566.
The Amicus made submissions which were broadly consistent with those of Australia Post, referring also to the historical relationship between postal services and government. The Amicus noted that the close association between the postal service and government was reinforced by the conferral on the Commonwealth Parliament by s 51(v) of the Constitution of the power to make laws with respect to ‘postal, telegraphic, telephonic and other like services’.[100] The Amicus acknowledged that the historical relationship was not decisive, but that it did demonstrate some continuity in the function of providing a letter service being a governmental function. The Amicus emphasised that the exclusivity of Australia Post’s function in providing the reserved services of letter delivery and production of stamps brings with it a duty of some national importance.[101] The statutory provisions which protect the exclusive right of Australia Post to provide these reserved services[102] reinforces that duty, and shows a historical continuity with the postal service historically provided by government.[103]
[100]Submissions of the Amicus Curiae filed 21 June 2024, [26]–[28].
[101]Transcript 01/08/2024 T61.7-13.
[102]Sections 29, 30A and s 31 of the APC Act.
[103]Transcript 01/08/2024 T60.16–T63.17.
The Amicus also observed that the capacity in which Australia Post is sued does not materially affect its characterisation as an emanation of the Commonwealth.[104] This was apparent from the High Court’s conclusion in Austral Pacific Group Ltd v Airservices Australia[105] that Airservices Australia was the Commonwealth, notwithstanding the fact that it was sued in its capacity as an employer rather than as a provider of public services.[106] It was, therefore, not appropriate to give any weight to the fact that Australia Post was being sued in the context of an essentially commercial dispute between franchisor and franchisee.
[104]Submissions of the Amicus Curiae, filed 21 June 2024, [58], referring to Airservices Australia, 139–142 [2]–[10] (Gleeson CJ, Gummow and Hayne JJ) and Telstra Corporation v Worthing (1999) 197 CLR 61, 69–74 [1]–[15].
[105](2000) 203 CLR 136.
[106]Airservices Australia, 139-142.
The Applicant rejected the proposition that the historical role of government in the provision of postal services was relevant in characterising Australia Post’s functions as governmental, on the basis that it is the present functions under the APC Act which fall to be considered, and that historical functions can be preserved or altered by the constating statute.[107]
[107]Submissions of the Applicant filed 22 July 2024, [44]; Transcript 01/08/2024 T82.4–9.
The Applicant accepted that Australia Post has governmental functions, but submitted that it was important to consider its broader functions (arising as subsidiary and incidental functions) which involved essentially commercial operations. While the commercial character of the functions did not preclude them being carried out by a government entity, they also were not inherently governmental.[108] It was submitted that Australia Post’s function and role in modern Australian society is diffuse and not limited to matters which are traditionally governmental in character.[109]
[108]Transcript 01/08/2024 T97.15-31; T86.13–19.
[109]Submissions of the Applicant filed 22 July 2024, [41(b)].
The Applicant submitted that the cases relied on by Australia Post and the Amicus to support the conclusion that Australia Post is the Commonwealth[110] did not deal directly with the effect of an express statutory stipulation (as used in s 90A of the APC Act) that the entity does not enjoy any immunities of the Commonwealth. It was also submitted that a closer analogy was afforded by the decision of the High Court in Re Residential Tenancies Tribunal (NSW); ex parteDefence Housing Authority[111] where three members of the High Court expressed the view in a joint judgment that the Authority, which like Australia Post is a ‘government business enterprise’,[112] was unlikely to be the Commonwealth ‘having regard to the function which it performs, the limited control exercised by the Minister and the requirement that it perform its function in accordance with sound commercial practice’.[113] The Applicant acknowledged the views of two other members of the High Court in that case that the Authority was the Commonwealth,[114] but noted that the conclusion in the joint judgment that the Authority was independent of the Commonwealth had been reached by Justice Hidden of the NSW Supreme Court in Defence Housing Authority v Builder’s Insurance Guarantee Corporation.[115] In that case, after examining the principles as to whether an entity is an emanation of the Commonwealth for the purposes of s 75(iii), the provisions of the Defence Housing Authority Act 1987 (Cth) and the High Court’s decision in Defence Housing Authority in some detail, Hidden J concluded:[116]
… [the Defence Housing Authority] is not an emanation of the Commonwealth for present purposes. The matter is finely balanced, but, in my view, the provisions of the DHAA which I have set out above demonstrate a measure of commercial and administrative autonomy in the [Authority] which justifies that conclusion. I respectfully agree with the view expressed by Dawson, Toohey and Gaudron JJ in the Residential Tenancies Tribunal case.
[110]Including ASIC v Edensor, Airservices Australia and Smith v ANL Limited (2000) 204 CLR 493 (relating to the Australian Shipping Commission).
[111](1997) 190 CLR 410 (Defence Housing Authority).
[112]PGPA Act, s 8 and Public Governance, Performance and Accountability Rule 2014, rule 5(1).
[113]Defence Housing Authority, 448; see also 431-432 (Dawson, Toohey and Gaudron JJ).
[114]Defence Housing Authority, 460 (McHugh J); 467-468 (Gummow J); See also 510 (Kirby J).
[115](2005) 189 FLR 197.
[116]Defence Housing Authority v Builder’s Insurance Guarantee Corporation (2005) 189 FLR 197, [20]–[32].
The Applicant also referred, in the context of submissions as to the nature of Australia Post’s functions, to public documents relevant to Australia Post’s activities. These included its 2023 Annual Report and a Statement of Expectations made under the Commonwealth Government Business Enterprises — Governance and Oversight Guidelines. Again, I have reservations as to the admissibility of this material, in particular as it was appropriately accepted by counsel for the Applicant that it was not extrinsic material which could be used in the interpretation of the APC Act. It was submitted that it rather went to emphasise the operational independence of a Commonwealth Corporate entity which was a government business enterprise and to understanding the nature of Australia Post’s contemporary functions.[117] I have concluded that it is not necessary to consider this material, because the question of characterisation primarily involves analysis of the statutory constitution of the entity, rather than consideration of how it undertakes activities in practice.[118] I also consider that having regard to the material would involve elements of fact finding that are not open to me on a referral of questions of law under s 96 of the VCAT Act.[119]
Australia Post’s functions include but are not limited to functions which are governmental in character
[117]Transcript 01/08/2024 T91.15–21; T95.19–T96.16.
[118]Superannuation Fund Investment Trust, 347–348 (Stephen J), 351 (Mason J); SGH Limited, 102 [129] (Callinan J).
[119]Chopra v Department of Education and Training [2019] VSCA 298, [74].
The principal function of Australia Post under s 14 of the APC Act is to provide ‘postal services’. That term is not defined, and it is necessary to consider the related provisions as to Australia Post’s obligations and its reserved functions to understand the nature of those services. One aspect of the postal service is the letter service which Australia Post must, pursuant to its community service obligations in s 27, provide. That letter service is also not defined but is stipulated to have the principal purpose of carrying, within Australia, by physical means, letters that Australia Post has the exclusive right to carry, and to carry letters between Australia and places outside it. That letter service must be made available by Australia Post at a single uniform rate of postage for carriage within Australia, by ordinary post, of letters that are standard postal articles.[120]
[120]APC Act, s 27(2)-(3).
Two aspects of the letter service indicate that it is a function which is governmental in character.
(a) The nature of the letter service, as conditioned by Australia Post’s community service obligation, is that it requires Australia Post to deliver, by ordinary post, standard letters Australia wide at a uniform rate. This includes delivery to all parts of the Australian community including remote parts of the mainland and offshore parts of Australia such as Christmas Island and the Cocos (Keeling) Islands.[121] This obligation involves provision of the service regardless of the commerciality of the service provision. It is a service which would not likely be offered by any private entity given the inability to set pricing by reference to the cost of providing the service. It is a service to the community of a kind commonly provided by government.
(b) The letter service bears a historical continuity with letter services provided by colonial governments in Australia, so that it is appropriate to regard it in Australia as a service traditionally of a nature provided by government. The importance of the letter service is recognised both by the specific constitutional provision for the Commonwealth Parliament to legislate with respect to postal services, and the statutory basis for the establishment of postal services.
[121]APC Act, s 27(5).
A significant part of Australia Post’s principal function of providing postal services can, therefore, be regarded as a governmental function. However, the reserved services are only one part of the postal services, with even the letter service component of the reserved service being of a confined compass when the exceptions to the reserved service are considered.
The exceptions to the letter service being reserved, as set out in s 30, are numerous. The exclusions include, for example, letters over 250 grams;[122] carriage of newspapers, magazines, catalogues or leaflets; carriage of a letter for a charge that is at least four times the rate of postage for a standard article by ordinary post, and carriage of letters in the course of a document exchange service. In addition to the postal services constituted by letter delivery outside the scope of the reserved services, Australia Post also has the subsidiary function of carrying on any business or activity relating to postal services, as well as any business or activity which is incidental to its principal and subsidiary function.[123]
[122]Unless the letter consists of an envelope, packet, parcel, container or wrapper containing 2 or more separate letters: s 30(1)(a).
[123]APC Act, ss 15 and 16.
The very broad nature of the general and specific powers given to Australia Post to perform these subsidiary and incidental functions[124] demonstrates the breadth of the business and other activities in which Australia Post may engage, in pursuit of those functions. These include powers to supply packet and parcel carrying and courier services, document exchange and contract mail management services, funds transfer services and the manufacture of goods for use in connection with postal services.[125] It is difficult to characterise these services as having any inherent governmental nature, particularly as their performance is not constrained by the community service obligations, but would be subject to the commercial obligation to perform the functions ‘in a manner consistent with sound commercial practice’.[126] There is also not the same clear historical continuity that applies to the letter service.
[124]APC Act, ss 17, 18 and 19.
[125]APC Act, s 18 (a), (c), (e), (f), (j).
[126]APC Act, s 26.
I accept, as emphasised by Australia Post, that it does not follow from the fact that an entity has functions that may be characterised as commercial that they are not functions of a government agency. The High Court observed in DCT v State Bank of New South Wales that there is a history of government controlled instrumentalities supplying goods or services on commercial terms, railways being a prominent example. The Court rejected any continuing distinction drawn by reference to whether functions of an entity are traditional and inalienable government functions or commercial or trading in nature.[127]
[127]DCT v State Bank of New South Wales, 231–232 (the Court).
The APC Act and relevant provisions of the PGPA Act[128] require Australia Post to act in accordance with ‘sound commercial practice’. However, the APC Act provides that the obligations in ss 23(b) and 26 apply ‘as far as practicable’, so that in the event of any conflict they would be subject to its community service obligations and governmental obligations. Further, the fact that Australia Post is a ‘government business enterprise’ for the purposes of the PGPA Act, although reinforcing the commercially oriented focus of much of the entity’s activity, is also consistent with the Commonwealth having chosen to use the Australian Postal Corporation as the form through which to pursue government business activity: the title ‘government business enterprise’ serves only to reinforce this.
[128]APC Act, s23(b), s 26; PGPA Act s 59(1)(b)(v).
I am conscious that the Defence Housing Authority, which was regarded as being independent of the Commonwealth by three members of the High Court in Defence Housing Authority and by Hidden J in the Supreme Court of NSW after his careful analysis in Defence Housing Authority v Building Insurers’ Guarantee Corporation, is also a government business enterprise. However that was not a feature which of itself was given any particular emphasis either in the joint judgment of the High Court, nor by Hidden J. The focus of those judgments was more the specific provisions as to the degree of control which could be exercised over the Authority by the executive.[129] Further, in Construction Industry Training Board v Transfield Services (Australia) Pty Ltd,[130] the full Court of the Supreme Court of South Australia determined that the Australian Rail Track Corporation (ATRC), which is also categorised as a Government Business Enterprise under the former Commonwealth Authorities and Companies Act 1997 (Cth), was an emanation of the Commonwealth.[131] Justice Stanley, with whose reasons Kourakis CJ and Nicholson J agreed, regarded the nature of the obligations on the ARTC as a Government Business Enterprise tended to support the conclusion that it was subject to the strategic control of the Commonwealth notwithstanding the responsibility of the directors to develop business strategies and handle the day to day management of the entity.[132]
[129]Defence Housing Authority, 448 (Dawson, Toohey and Gaudron JJ); Defence Housing Authority v Building Insurers’ Guarantee Corporation, [32] (Hidden J).
[130](2017) 128 SASR 475.
[131]Construction Industry Training Board, 477 [1] (Kourakis CJ); [121] (Stanley J) and [122] (Nicholson J).
[132]Construction Industry Training Board, 498-500 [114]–[116].
The fact that Australia Post has the status of a government business enterprise, in the context of it being a corporate Commonwealth entity, emphasises the business or commercial nature of much of Australia Post’s activities, but at the same time reinforces the fact that it is an enterprise which is intended to act consistently with Commonwealth objectives.
Taking the range of functions and powers of Australia Post as a whole, it is an entity which performs a specific function of providing the letter service which has a historically governmental character and, given the obligation to provide it at a uniform rate to all of the Australian community, is to be provided in a way which bears a governmental nature. Australia Post also is empowered to exercise a range of functions which are in the nature of commercial or business activity and do not have that inherent governmental character, but equally are not necessarily non-governmental for that reason. Not all considerations as to the nature of Australia Post’s functions point to it being a government entity. In particular, its functions do not include any of the broad regulatory functions of an entity like ASIC, which is the Commonwealth.[133] However, the fact that it is an entity which does have at least one central and important, governmental function does tend to the conclusion that it is an agency of government, even if it also does also have a broad range of commercial and non-governmental functions.
[133]Cf ASIC v Edensor Nominees.
Ultimately, the nature of the functions of Australia Post is a consideration which tends to the conclusion that it is a government instrumentality. More decisive guidance will be provided by the statutory provisions identifying its relationship with government and in particular the degree of control which may be exercised by the Commonwealth executive government over Australia Post.
Application of indicia relating to Australia Post’s relationship with the Commonwealth executive government
Although a holistic assessment of Australia Post and its relationship with the executive is to be undertaken, it is useful in conducting that assessment to address specific indicia which are of particular relevance, as noted in paragraph [46] above.
The circumstances of establishment of Australia Post
As noted at [49] above, Australia Post was first established as the Australian Postal Commission by the Postal Services Act. Although that Act did not specifically provide that it was a body corporate, the Postal Services Amendment Act 1988 provided that it ‘continues to be a body corporate’ and ‘continued in existence’ under the name of the Australian Postal Corporation.[134] The Commission had no corporators, and under the subsequent APC Act the initial capital of the Corporation was to be determined by the responsible Commonwealth Minister.[135]
[134]PostalServices Amendment Act, s 5.
[135]APC Act, s 51. The responsible Minister is currently the Minister for Communications: Commonwealth of Australia, Administrative Arrangements Order, 13 October 2022, as amended on 3 August 2023 and 29 July 2024; Ministerial offices, departments of state and guide to responsibilities, issued 29 July 2024, Department of the Prime Minister and Cabinet.
The Applicant noted the distinction made in s 11 of the PGPA Act between Corporate Commonwealth entities being entities, like Australia Post, which are bodies corporate and non-Corporate Commonwealth entities, which is explained in a note to s 11:[136]
Corporate Commonwealth entities are legally separate from the Commonwealth, whereas non-Corporate Commonwealth entities are part of the Commonwealth.
[136]Submissions of the Applicant filed 22 July 2024, [12], [41(a)].
This distinction drawn in the PGPA Act, although not determinative of the question arising in the context of s 75(iii) of the Constitution as to whether an entity is ‘the Commonwealth’ (or, in the language of the note to s 11, ‘part of’ the Commonwealth) does draw attention to the range of relationships that a statutory entity may have with the Commonwealth. It also illustrates that an entity that is intended to be the Commonwealth may readily be created in a way which does not give it separate legal existence and is unambiguously to be regarded as the Commonwealth. However, it remains the case that statutory corporations may be the Commonwealth, and the fact that such bodies corporate have separate legal existence does not detract from that position.[137] The issue remains one of analysis of the relationship between the corporation and the Commonwealth to determine whether the corporation is intended to be the means by which the Commonwealth performs its functions in a particular field, or was created to perform its functions independently from the Commonwealth.[138]
[137]ASIC v Edensor Nominees, 580-581 [39]–[40].
[138]Inglis, 338–339.
The absence of corporators when the body corporate was established is consistent with the Commonwealth having established the entity as an outward form through which the Commonwealth may carry out government activity.[139]
[139]Inglis, 339; ASIC v Edensor Nominees, 608 [127] (McHugh J); State Bank of NSW v Commonwealth Savings Bank of Australia, 649-650 (the Court).
Australia Post’s financial relationship with the Commonwealth
The responsibility of the Minister to determine Australia Post’s initial capital, with the powers to direct that it be repaid to the Commonwealth or that Australia Post’s reserves or liabilities to the Commonwealth be converted to capital, and the Minister’s power to direct payment of interest on the capital,[140] shows that the Commonwealth has both a close financial relationship and a high degree of financial control with respect to Australia Post. That control is not materially diminished by the requirement that the Minister must consult with the Board in these contexts before making any relevant direction.
[140]APC Act, ss 51, 52(1)(b)–(d), 51(2).
The capital of Australia Post, in addition to the initial capital as determined by the Minister, may be supplemented by such moneys as are appropriated by Parliament from consolidated revenue.[141] Australia Post can earn revenue from sales of postage stamps[142] the pricing of which, as applicable to carriage of standard postal articles by ordinary post within Australia, is subject to Ministerial review.[143] The charges Australia Post may make for delivery of letters from an incoming mail service are also regulated by reference to any applicable international convention or agreement.[144]
[141]APC Act, s 52(1)(c).
[142]APC Act, s 33A.
[143]APC Act, s 33.
[144]APC Act, s 32C.
Australia Post may also earn revenue from service provision of various kinds, on terms and conditions agreed between it and the acquirer of the services, or as determined by the Board.[145] These services, being broadly subject to market pricing, and of the kind that private businesses may offer, can readily be regarded as being in the nature of a business or commercial activity.
[145]APC Act, ss 32(1) and 32A.
Australia Post may borrow from the Commonwealth, out of money appropriated from consolidated revenue, on such terms and conditions as the Finance Minister determines in writing.[146] Australia Post may also borrow from persons other than the Commonwealth, and provide security over its assets for such borrowings.[147]
[146]APC Act, s 60.
[147]APC Act, ss 61 and 62.
The way in which Australia Post is financed engages both Commonwealth funding sources and revenue from commercial provision of services and lending from non-government sources. Its funding, being neither exclusively from the Commonwealth nor from its own activities, does not, therefore, provide any determinative indicator as to its status.
However, the fact that there is a degree of direct control by the executive over the pricing of certain postage services relevant to the community service obligations is a factor tending to Australia Post being the Commonwealth, as is the power of the Minister to make directions with respect to payment of dividends or repayment of capital to the Commonwealth.[148]
[148]See Airservices Australia at 142, [10] with footnote 22.
Whether the Commonwealth has the power to appoint directors
With the exception of the Managing Director, who is appointed by the Board of Australia Post, the Chairperson and other directors are appointed by the Governor-General, on the nomination of the Minister.[149] Directors hold office for the term of five years or less as specified in the instrument of appointment, and are paid such remuneration as determined by the Remuneration Tribunal established under the Remuneration Tribunal Act 1973 (Cth).[150] The Governor-General may terminate the appointment of a director for misbehaviour or physical or mental incapacity, and must terminate the appointment of a director in certain other circumstances. These circumstances include where the Minister proposes to terminate all or specified directors because the Minister is of the opinion that:
(a) the performance of a particular director, the Board or Australia Post has been unsatisfactory for a significant period of time; or
(b) the Board has failed to comply with an obligation under s 19 of the PGPA Act which imposes obligations on the Board of Australia Post (as a Commonwealth entity) to keep the Minister informed of Australia Post’s activity and give the Minister notice of various significant issues or decisions.[151]
[149]APC Act, s 73.
[150]APC Act, s 76.
[151]APC Act, s 79(3)–(5).
The Managing Director holds office ‘during the Board’s pleasure’, on such terms and conditions including as to remuneration as determined by the Board.[152]
[152]APC Act, ss 83, 84 and 86.
While the Board has a high degree of control over the Managing Director, the fact that all remaining directors are appointed by the Governor-General on the nomination of the Minister, and the scope of the powers of the Governor-General to terminate directors at the proposal of the Minister, demonstrate a high degree of Commonwealth executive control over the constitution of the Board.
Whether Australia Post staff are appointed as employees under the Public Service Act
The APC Act provides that Australia Post may employ such employees as are necessary for the performance of its functions, on terms and conditions of employment that shall be determined by Australia Post.[153] The Public Service Act does not apply to those employees. This is a matter that tends against the conclusion that Australia Post is the Commonwealth. However, it is not a determinative factor. It is established that a statutory body whose employees are not employed under the Public Service Act may nevertheless be the Commonwealth for the purposes of s 75(iii) of the Constitution. In Airservices Australia[154] the High Court held that Airservices Australia, the employees of which are not employed under the Public Service Act, was ‘the Commonwealth’ for the purposes of s 75(iii) of the Constitution.
Whether the Commonwealth executive participates in Australia Post’s formulation of policy or decision making
[153]APC Act, s 89.
[154]Airservices Australia, 142 [10] (Gleeson CJ, Gummow and Hayne JJ). The Air Services Act 1995 (Cth) which was considered by the Court in that case provided by s 42 that Airservices Australia ‘may employ persons on terms and conditions determined by the Board in writing’, with no provision for application of the Public Service Act.
The APC Act stipulates that Australia Post is not subject to direction by or on behalf of the Australian Government except as otherwise provided by the Act or any other Act.[155] However, the APC Act and other legislation provides for direction to be given by the Minister in a range of circumstances, which enables a high degree of involvement by the executive government in formulation of policy and significant decision making for the governance and performance of Australia Post.
[155]APC Act, s 50.
The Minister has the general power under s 49 of the APC Act to give directions to the Australia Post Board in relation to Australia Post’s functions, as appear to the Minister to be in the public interest. There are controls on this power of direction, including that the Minister may not give directions as to rates of postage or the amounts to be charged by Australia Post for work done, or services, goods or information supplied by it. The Minister does, however, have a power to disapprove determinations made by the Australia Post Board as to rates of postage for carriage within Australia of standard postal articles by ordinary post.[156]
[156]APC Act, s 33.
The Minister is required to consult with the Board prior to any direction under s 49, and table a copy of the direction before both Houses of Parliament after giving it.[157] If Australia Post satisfies the Minister that it has suffered financial detriment, such as incurring costs or foregoing revenue which otherwise would not have been incurred or foregone, as a result of complying with a direction under s 49, Australia Post is entitled to be reimbursed by the Commonwealth to an amount determined by the Minister.[158] While this shows a concern for Australia Post’s financial position it also shows the primacy of the Ministerial power to give directions in the public interest.
[157]APC Act, ss 49(1) and (3).
[158]APC Act, s 56.
In addition to the powers of the Minister to determine the initial capital of Australia Post, the Minister may also give certain directions in relation to conversion of Australia Post’s liabilities to the Commonwealth, or its reserves, into capital.[159] The Minister also has the ultimate control over whether Australia Post pays the Commonwealth a dividend. The Board is first required to recommend to the Minister, within four months of the end of each financial year, whether a dividend shall be paid.[160] The Board must have regard, in making that recommendation, to a range of matters identified in the APC Act as to Australia Post’s financial target for the purposes of the corporate plan required by the PGPA Act.[161] After receiving the recommendation, the Minister may, also having regard to matters relevant to Australia Post’s financial target, either approve the recommendation or direct the payment of a dividend or a different specified dividend, and then cause a copy of that direction to be tabled before both Houses of Parliament.[162] In that process, the Minister must have regard to the same matters that the Australia Post Board must consider in making the original recommendation, other than two matters reserved to the Board: the need to earn a reasonable rate of return on Australia Post’s assets, and any other commercial matters that are for the Board to consider appropriate or otherwise.[163]
[159]APC Act, ss 51 and 52(1)b) and (d).
[160]APC Act, s 54(1).
[161]APC Act, s 54(2), referring to the matters in s 38.
[162]APC Act, ss 54(3) and (4A).
[163]APC Act, s 54(4) referring to s 38 other than ss 38(a) and (f).
The requirements to act on a recommendation of the Board, and the reservation of matters such as what is a reasonable rate of return on assets and other commercial matters to the Board, suggests that there is intended to be some deference to the commercial judgment of the Board on certain financially and commercially significant issues.[164] However, the ultimate decision making on dividends remains with the Minister.
[164]In addition to the annual recommendation of the Board as to whether to pay a dividend, the Minister must also have regard to the recommendation of the Board as to the timing for payment of any dividend: s 54(6)–(7).
It is also relevant, in considering the degree of involvement by the Commonwealth executive in the formulation of policy and in decision making by the Australia Post Board, to consider Australia Post’s obligations under the PGPA Act. The PGPA Act requires the Australia Post Board to prepare a corporate plan at least once each financial year. That corporate plan must set out how Australia Post, as a Commonwealth entity, will contribute to achieving the Australian Government’s key priorities and objectives if the Australian government has issued a statement of those priorities and objectives under s 34 of the PGPA Act. The corporate plan must be given both to the responsible Minister and the Finance Minister.[165] Section 38 of the APC Act sets out matters to which Australia Post must have regard in preparing a financial target for inclusion in the corporate plan. These include matters generally relevant to financial performance but also include matters relevant to its relationship to the Commonwealth, including the need to maintain the extent of the Commonwealth’s equity in Australia Post and the expectation of the Commonwealth that Australia Post will pay a reasonable dividend.[166] The responsible Minister is entitled to direct Australia Post to make variations to either the statement of the strategies and policies that Australia Post is to follow to carry out its community service obligations, or its financial target under the plan.[167] Australia Post must comply with that direction.[168]
[165]PGPA Act, s 35.
[166]APC Act, ss 38(b) and (c).
[167]APC Act, ss 40 (1)–(3).
[168]APC Act, s 40(5).
Other directions which may be given by the Minister to Australia Post include:
(a) the power under regulations made pursuant to the APC Act to direct Australia Post to act in accordance with a recommendation made by the Australian Competition and Consumer Commission (ACCC) pursuant to the ACCC’s powers under s 32B(1)(a) of the Act to inquire into certain disputes between Australia Post and third parties about bulk delivery of letters;[169]
(b) the power to direct that Australia Post pay to the ACCC costs that the ACCC has incurred in performing the monitoring and reporting functions relating to Australia Post, under the APC Act;[170] and
(c) the power to direct the Board, consistent with international conventions or agreements relating to postal services, about how the power to return articles from a foreign postal authority should be exercised.[171]
[169]APC Act, s 32B(1)(f) and (g). Australian Postal Corporation Regulations 2021 (Cth), Part 3 ‘Inquiries into relevant disputes about bulk interconnection services’.
[170]APC Act, s 56A, referring to the functions of the ACCC under Part 4A of the APC Act.
[171]APC Act, s 28A(3).
Taking into account these provisions of the APC Act and the PGPA Act, there is, therefore, a broad range of powers pursuant to which the Minister may give directions, including with respect to ensuring compliance with the Commonwealth’s own policy objectives or its international obligations. Notwithstanding the position under s 50 of the APC Act that Australia Post and its Board are not subject to government direction other than as provided by the APC Act or any other Act, the degree to which the APC Act provides for the Minister to give directions to Australia Post and its Board in various contexts results in a high degree of control by the executive government over Australia Post.
Whether Australia Post is subject to audit by the Commonwealth Auditor General and other Commonwealth accountability controls
The Auditor-General is required to audit Australia Post annually.[172] The Auditor-General is required to audit and report to the Minister on the extent to which Australia Post has met the prescribed performance standards, currently prescribed under the Australian Postal Corporation (Performance Standards) Regulations 2019 (Cth). If the Auditor-General identifies that Australia Post has failed to meet a performance standard, Australia Post must prepare a service improvement plan to address the deficiency unless the Minister dispenses with that requirement.[173]
[172]APC Act, s 28D.
[173]APC Act, s 28E.
The Board of Australia Post is required, under the PGPA Act, to give to the responsible Minister an annual report[174] addressing a range of matters stipulated in s 43 of the APC Act. These matters include an outline of the strategies and polices Australia Post is following to carry out its community service obligations, and an assessment of their appropriateness and adequacy.[175]
[174]PGPA Act, s 46.
[175]APC Act, ss 43(1)(d) and (f).
The Australia Post Board has an ongoing duty under the PGPA Act to keep the responsible Minister informed of the activities of Australia Post and its subsidiaries, and to notify the Minister as soon as practicable after it makes any significant decision, or it becomes aware of any significant issue that has affected Australia Post or its subsidiaries.[176] The rules may prescribe matters to be taken into account in deciding whether a decision or issue is significant.[177]
[176]PGPA Act, ss 19(1)(a), (c), (d), and (e).
[177]PGPA Act, s 19(3).
The various duties and requirements as to planning and reporting enable a high degree of Commonwealth oversight over Australia Post, as well as an ability to be directly involved in Australia Post policy formulation and decision making.
Immunities or privileges of Australia Post
Section 90A of the APC Act provides that Australia Post is not entitled to immunities or privileges of the Commonwealth unless otherwise expressly provided by law. However the Act also provides certain limited restrictions on the application of laws to Australia Post. State or Territory laws in the following categories do not apply to Australia Post:
(a) a State or Territory law, if it would apply in a discriminatory way to Australia Post;[178]
(b) a State or Territory law that would operate retrospectively to a time before 1 January 1991 and would as so operating apply to Australia Post,[179] and
(c) laws relating to design, construction or approval of buildings, their occupancy or use or their alteration or demolition do not apply to a building that is the property of Australia Post if immediately before 1 January 1991 they were occupied or in use by Australia Post or under construction, alteration or demolition by Australia Post.[180]
[178]APC Act, s 90B.
[179]Such a law will only apply to Australia Post on and after 1 January 1991, see APC Act, s 90C.
[180]APC Act, s 90D.
Australia Post does not, therefore, have Commonwealth privileges and immunities, but it is set apart from most other businesses by having certain immunities from State or Territory laws, to which a corporation would ordinarily be subject.
Australia Post is subject to Commonwealth and to State/Territory taxation.[181] This is a factor which has been regarded as tending to a conclusion that an entity is independent of government. Australia Post contended that it is not a factor that dictates that conclusion, nor is it a significant consideration in determining whether an entity is ‘the Commonwealth’.[182] Australia Post referred to ASIC v Edensor Nominees and Airservices Australia, where the High Court held that ASIC and Airservices Australia respectively were ‘the Commonwealth’, notwithstanding that neither entity had a complete immunity from Commonwealth, State or Territory taxation laws.[183] ASIC and Airservices Australia did have certain immunities from taxation, unlike Australia Post which has no such immunity.
[181]APC Act, s 63.
[182]Respondent’s Reply Submissions filed 29 July 2024, [6].
[183]Australian Securities and Investments Commission Act 1989 (Cth) s 139 (which provided as at 24 November 2000 that ASIC is not subject to taxation under a law of the Commonwealth other than the Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986, or a law of a State or Territory). The Air Services Act 1995 (Cth), s 52 (as at 5 December 1999) gave Airservices Australia immunity from taxation under State and Territory laws, other than payroll tax laws, and provided that it was not a public authority for the purposes of s 23(d) of the Income Tax Assessment Act 1936 (Cth) which provided that public authorities are exempt from income tax.
The Applicant submits that given that none of the authorities relied on by Australia Post and the Amicus[184] relating to entities which were held to be the Commonwealth[185] dealt directly with the situation of an entity which is not exempt from Commonwealth taxation laws, it was difficult to draw conclusions from those cases.
[184]Submissions of the Applicant filed 22 July 2024, [40] and [41(c)].
[185]ASIC v Edensor; Airservices Australia;Smith v ANL Limited (2000) 204 CLR 493.
The fact that Australia Post is not immune from either Commonwealth taxation legislation, nor State and Territory taxation, tends to it being characterised as independent of the Commonwealth. However, the question of immunity or otherwise from taxation laws, although arising in the various cases, has not been given the same degree of emphasis in the authorities as the question of the degree of control that the executive may exercise over the entity,[186] which is to be considered in arriving at a holistic conclusion as to Australia Post’s status.
[186]Superannuation Fund Investment Trust, 348 (Stephen J).
The effect of all relevant factors
Conclusion as to status of Australia Post
The features of Australia Post considered above indicate that it is a statutory corporation with governmental functions of an important nature, while also established to operate in many respects as a commercial business.
Australia Post has explicit governmental obligations which are related to government policy and compliance with Australia’s international obligations.[187] Its community service obligations, understood in the context of the provisions as to Australia Post’s reserved functions, are appropriately understood as governmental functions which distinguish it from a corporation operating in the private sector. This remains so even in the context of Australia Post’s subsidiary and incidental functions and powers to conduct businesses and engage in commercial activities which are not inherently governmental and in which Australia Post operates as a participant in a market with private sector operators.
[187]APC Act, s 28.
Australia Post has a Board which, pursuant to its statutory functions, is intended to apply its expertise as to sound commercial practice to the operation of the corporation,[188] but always subject to a high degree of government control. That government control provided for by statute is directed to achieving government policies and objectives, and to the public interest as assessed by the responsible Minister.[189] The Board is required to have regard, as with private sector corporations, to financial return to its owner[190] but with the important qualification that the owner is the Commonwealth, and the Commonwealth through the Minister has decision making power with respect to the degree to which Australia Post provides a financial return to the Commonwealth, which can be exercised according to government policy.[191]
[188]APC Act ss 23(b) and 26; PGPA Act, s 59(1)(v).
[189]APC Act, s 49.
[190]APC Act, s 54 (and s 38 as to financial targets in the corporate plan issued under the PGPA Act).
[191]See [96]–[97] above.
There are some features which are consistent with Australia Post being independent of the Commonwealth, including that it is subject to Commonwealth and State and Territory taxation, has no other broad immunity from Commonwealth, State or Territory laws, and engages its employees on terms determined by Australia Post, rather than pursuant to the Public Service Act. These do not, on a holistic analysis, detract from the features of Australia Post, in particular the high degree of control by the Commonwealth executive to which it is subject, which compel the conclusion that it is a statutory corporation that was chosen by the Commonwealth as the outward form pursuant to which the Commonwealth carries on governmental activity.[192]
[192]Inglis, 337 (Kitto J) citing Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 274 (Rich and Williams JJ).
The Applicant observed in submissions that the outcome of a conclusion that Australia Post is ‘the Commonwealth’ for the purposes of s 75(iii) would mean that officers of Australia Post were also amenable to jurisdiction under s 75(v), with ‘all the attendant (and potentially operationally impracticable) consequences’ that may follow for Australia Post.[193] Australia Post accepted that if a person within Australia Post can properly meet the description of an officer of the Commonwealth in s 75(v), and it can be shown that the person engaged in jurisdictional error, there is no reason why they should not be amenable to jurisdiction under s 75(v).[194]
[193]Submissions of the Applicant filed 22 July 2024, [45].
[194]Respondent’s Reply Submissions filed 29 July 2024, [8].
Conclusion: Australia Post is ‘the Commonwealth’ for the purposes of s 75(iii)
For the above reasons, Australia Post is the Commonwealth, for the purposes of s 75(iii) of the Constitution. The answer to Question (b) is, therefore, ‘Yes’.
Question (c): does the Tribunal have jurisdiction?
The effect of the answers to Questions (a) and (b) is that the Tribunal would be exercising judicial power in a matter to which the Commonwealth is a party were it to proceed to hear and determine the claim brought against Australia Post.
To interpret the Fair Trading Act or the VCAT Act as permitting such an exercise of jurisdiction would contravene the implied constitutional limitation on State legislatures conferring jurisdiction in respect of matters in ss 75 and 76 of the Constitution on a tribunal which is not a ‘court of a State’. Section 6(1) of the Interpretation of Legislation Act 1984 (Vic) provides that legislation is to be construed as not exceeding the legislative power of the State, and is valid to the extent that it is not in excess of that power. The Fair Trading Act and the VCAT Act[195] should be read down so as not to confer jurisdiction on the Tribunal in these circumstances.[196]
[195]Fair Trading Act, Chapter 7 and, to the extent necessary, ss 41 and 44 of the VCAT Act.
[196]Burns v Corbett, 345 [64] (Kiefel CJ, Bell and Keane JJ); 364 [120] (Gageler J); Thurin v Krongold, [45].
The answer to Question (c) is, therefore, ‘No’.
Issue as to whether a federal claim is raised in the Application
Given the conclusion that Australia Post is ‘the Commonwealth’ it is strictly unnecessary for me to further consider whether any other aspect of the Tribunal proceeding would make it a federal matter, within ss 75 or 76 of the Constitution.
However, the parties made brief submissions addressing the issue of whether the Application had the effect of invoking the Franchising Code of Conduct made under the Competition and Consumer Act 2010 (Cth), with the effect that it included a claim arising under a Commonwealth law for the purposes of s 76(ii) of the Constitution. I will address those submissions for completeness.
Australia Post submitted that the Applicant’s reference in the Application to the Tribunal to the ‘Franchise Code of Conduct Legislation’[197] must be inferred to be a reference to the Franchising Code of Conduct, an industry code made under s 51AE of the Competition and Consumer Act, contravention of which would contravene s 51ACB of that Act. It was contended that the Applicant had asserted a claim based on a Commonwealth law, and that it could not be said to be a claim which was not genuinely raised nor incapable on its face of legal argument. Consistent with the decision of the High Court in Citta Hobart Pty Ltd v Cawthorn, the assertion of that genuine claim would operate to ‘characterise the totality of the justiciable controversy’ as a matter under s 76(ii), and therefore deprive the Tribunal of jurisdiction to determine any of the controversy.[198]
[197]The Application was conveyed with the Referral Orders: see Order 2(d).
[198]Submissions on behalf of the Respondent, filed 10 May 2024, [39(3) and (4)] citing Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216, [31] and [35] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Transcript 1 August 2024, T49.11-T50.25.
Australia Post submitted that the question of whether a claim was made based on Commonwealth legislation was to be determined using an ‘objective assessment, having regard to Agtrack (NT) Pty Ltd v Hatfield, where the joint judgment stated:[199]
Whether federal jurisdiction with respect to one or more of the matters listed in ss 75 and 76 of the Constitution has been engaged in a legal proceeding is a question of objective assessment. If a party on either side of the record relies upon a right, immunity or defence derived from federal law, there is a matter arising under s 76(ii) of the Constitution. It is not a question of establishing an intention to engage federal jurisdiction or an awareness that this has occurred. Immediate ascertainment of the factual basis of a justiciable controversy and of the attraction of federal jurisdiction in a proceeding will not always be possible by regard simply to allegations pleaded. If the attraction of federal jurisdiction itself is disputed, it may require evidence of the factual basis of the controversy to permit an answer to that question.
[199]Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251, 262-263 [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ), cited in Citta Hobart, [30] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
The Amicus drew attention to the element of uncertainty, when having regard to the wording of the Application, as to whether the Applicant did in fact make a claim under s 51ACB of the Competition and Consumer Act. The Amicus submitted that it remained possible that the claim was simply one under s 23 of the Australian Consumer Law, which deals with unfair terms of consumer contracts and small business contracts. As the ACL applies as a law of Victoria by s 8 of the Fair Trading Act, a claim based on s 23 of the ACL alone would arise under State law,[200] and there would be no federal matter arising by reason of the nature of the claims made by the Applicant.
[200]Submissions of the Amicus Curiae, 21 June 2024, [62].
Counsel for the Applicant, without admission as to the specific characterisation of the claim, submitted that the claim was capable of being regarded as one made under Victorian law, for the reasons identified by the Amicus.
I consider that the reference to ‘Franchise Code of Conduct Legislation’ in the Application, read in context is an insufficient basis on which to conclude, on an objective assessment, that a claim deriving from the Competition and Consumer Act was raised. The Application was prepared without legal representation, and lacks the detail of a pleading. The possibility, raised by the Amicus, that the reference to the ‘Franchise Code of Conduct Legislation’ in the Application was not to a cause of action under s 51ACB of the Competition and Consumer Act, but was made in the context of a claim as to unfair terms under the ACL (Vic), is not an unrealistic one. The description of the claim in the Application focusses on the Deed to which the Applicant and Australia Post were parties, and describes it as ‘unfair’.[201] The additional description of the claims states that ‘the method with which we were forced to sign this Deed we believe would be classed as unfair as the section used of our Franchise Agreement would fail the Franchise Code of Conduct Legislation. We had no recourse it was a matter of sign the Deed or we seize your Licence’.[202] While the language is not entirely clear, it is apparent that the claim relates primarily to the Deed, and what are alleged to be unfair terms of the Deed. The reference to the ‘Franchise Code of Conduct Legislation’ may be intended to raise a claim based on contravention of s 51ACB but it may equally have been intended as some sort of comparative reference. Objectively assessing the Application it is not possible to be satisfied as to how it should be characterised. Further facts as to the legal and factual basis of the Application would be required to make that determination, a scenario anticipated as possible by the joint judgment in Agtrack.[203]
[201]Provided with the Referral Orders; see page 6 of the Application.
[202]Provided with the Referral Orders; see page 6 of the Application.
[203]Agtrack, 263 [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).
Had it been necessary, in order to answer Question (c), to determine whether the proceeding was matter under s 76 of the Constitution because the Application raised a claim arising under a Commonwealth law, I would have concluded it was not possible to determine, on the facts as found by Woodward J at this stage of the proceeding, that a claim arising under a Commonwealth law was genuinely made.
The parties also addressed argument to the question as to the situation which would arise had I concluded that Australia Post was not the Commonwealth, and no claim was made relying on a Commonwealth law, so that the substantive proceeding in the Tribunal did not involve a matter within ss 75 or 76 of the Constitution. The submissions addressed the somewhat complex question of whether the proceeding would remain a ‘matter’ within federal jurisdiction. This would be by reason that the issues as to whether Australia Post is the Commonwealth, or a claim relying on a Commonwealth law, had arisen for consideration in the course of the proceeding and were determined by this Court, even if the ultimate answers were that no such issues arose.[204]
[204]Outline of Written Submissions of the Attorney-General for the State of Victoria, 21 June 2024, [8]–[12]; [16]. Respondent’s Reply Submissions filed 29 July 2024, [16]–[23].
It was necessary to address that issue in An v ABC. I concluded there that the fact that a question as to whether a matter within ss 75 or 76 of the Constitution arose for determination in the context of whether the Tribunal has jurisdiction did not mean that the substantive matter before the Tribunal was a federal ‘matter’, if the conclusion reached following determination of the jurisdictional question was that no ss 75 or 76 matter arose. My reasons in An v ABC set out the helpful submissions of the Attorney-General and other parties on this issue, and my reasons for the above conclusion.[205]
[205]An v ABC, [94]–[109].
Given my conclusions on Questions (b) and (c), it is in this case unnecessary to consider the issue. As Australia Post submitted that this Court did not need to, and thus should not, determine this complex issue, I need not say anything further about the equally helpful submissions of Australia Post on the issue in this case.
The duty and power of the Tribunal to decide its jurisdiction
In this proceeding and in An v ABC, the Attorney-General for Victoria’s intervention was focussed on the principle that the Tribunal has the duty and the power to decide for itself whether it has jurisdiction over a given dispute.[206]
[206] Outline of Written Submissions of the Attorney-General for the State of Victoria, 21 June 2024, [3(a)].
In this proceeding, Australia Post, the Amicus and made submissions on this issue. The submissions touched on some complex issues, on aspects of which not all parties were agreed. These involved primarily:[207]
(a) the nature of the power that the Tribunal would be exercising, if required (in a case like the present) to interpret the Constitution to decide whether a party is the Commonwealth, or to otherwise decide whether the proceeding involves a federal matter, in order to decide the question of jurisdiction; and
(b) whether the tribunal could in all cases resolve a question of jurisdiction without transgressing the limitations in Burns v Corbett.
[207]Outline of Written Submissions of the Attorney-General for the State of Victoria, 21 June 2024, [8]–[12]; submissions of senior counsel for Australia Post at Transcript 1/8/2024, T148.15-T151.30; submissions of Amicus at T156.19-T158.4
Again, I considered this issue in some detail in An v ABC.[208] I concluded as follows.
[208]An v ABC [110]–[139].
(a) The Tribunal’s power to decide whether it has jurisdiction will in all cases involve forming an opinion which will enable it either to proceed to hear a proceeding if it concludes that it is authorised to do so, or decline to proceed if it is of the opinion that it does not have that authority. That opinion or conclusion will not have determinative legal effect, but will have the important practical effect of permitting the Tribunal to proceed to hearing, or if there is no jurisdiction, to strike out a matter or refer it under s 77 of the VCAT Act.[209]
(b) Accepting that the Tribunal has a duty to determine its jurisdiction, and a corresponding power,[210] a legally valid way of the Tribunal discharging that duty is to act under s 96 of the VCAT Act and refer a question of law for the opinion of the Supreme Court. The Tribunal will have the opinion of the Court on the issue, to facilitate its decision on jurisdiction, and can then act accordingly to ensure that it remains within the limits of its jurisdiction.[211]
(c) In a case raising a novel or complex issue, the prompt referral by the Tribunal of a question under s 96 may be the most appropriate course. In other cases, where the question of whether an issue of federal jurisdiction arises is straightforward or has already been decided (such as whether incorporation of a party under the Corporations Act would alone give rise to a federal matter;[212] or where the Commonwealth is named as such as a party)[213] the Tribunal could be expected to make a conclusion itself about the existence or otherwise of jurisdiction to hear a matter.
[209]Thurin v Krongold, [5(c)] and [149]–[150].
[210]Citta Hobart, 229–230 [21].
[211]Re Adams and the Tax Agents Board (1976) 12 ALR 239, 245 (Brennan J, sitting as the President of the Commonwealth Administrative Appeals Tribunal); see also Citta Hobart, 230 [24].
[212]Which is now determined by binding authority in Victoria by the Court of Appeal decision in Thurin v Krongold, [116], [121] (McLeish, Niall and Walker JJA) and in Western Australia by Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87, [7] (Buss P, Mitchell and Hall JJA).
[213]The Attorney-General for Victoria referred as an example to Blunden v Commonwealth (2003) 218 CLR 330, 335–336 [9].
The authorities relevant to this issue and the reasons for my conclusions are set out in more detail in An v ABC. It is unnecessary to say anything further about the issue here.
Conclusion
For the above reasons, the referred Questions are answered as follows:
Question (a): Would the Victorian Civil and Administrative Tribunal (the Tribunal) exercise judicial power in hearing and determining the claim brought against the respondent in this proceeding?
Answer: Yes.
Question (b): Is the respondent in this proceeding “the Commonwealth, or a person … being sued on behalf of the Commonwealth”, for the purposes of s 75(iii) of the Commonwealth Constitution?
Answer:Yes.
Question (c): In light of the answers to Questions 1 and 2, does the Tribunal have jurisdiction to hear and determine the claim brought against the respondent in this proceeding?
Answer:No.
My orders will state these answers to the referred questions. I will hear the parties on any further appropriate orders, including orders as to costs.
Finally, I record the Court’s gratitude to Kateena O’Gorman SC and William Phillips of counsel who appeared as Amicus pursuant to the Court’s request for assistance under the Victorian Bar’s pro bono referral scheme, and to Christopher McDermott, who accepted a referral under that scheme, at short notice, to appear as counsel for the Applicant. The submissions of these counsel, as with those of counsel for the respondent and the Attorney-General, were cogent, comprehensive and provided invaluable assistance to the Court.
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