Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd

[1979] HCA 15

HIGH COURT OF AUSTRALIA

Gibbs A.C.J., Stephen, Mason, Jacobs and Murphy JJ.

BRADKEN CONSOLIDATED LTD. v. BROKEN HILL PROPRIETARY CO. LTD.

(1979) 145 CLR 107

5 April 1979

Constitutional Law (Cth)

Constitutional Law (Cth)—Crown—Commonwealth and States—Binding effect of Commonwealth legislation on Crown in right of State—Commissioner for Railways—Statutory body representing Crown—Trade Practices Act 1974-1977 (Cth), ss. 2A, 45 (3), 47 (2)—The Railways Act 1914 to 1976 (Q.), s. 8 (1).

Decisions

1979, April 5.
The following written judgments were delivered: -
GIBBS A.C.J. The present proceedings were commenced in the Federal Court of Australia under the Trade Practices Act 1974 (Cth), as amended ("the Trade Practices Act"). The applicants are companies, one of which manufactures specialized railway equipment. The first, third, fourth and fifth respondents are companies and the second respondent is the Commissioner for Railways of the State of Queensland ("the Commissioner"). The allegations made by the applicants in the points of claim which they have filed in the Federal Court may be summarized as follows. A new railway is to be constructed to provide access from the Gregory Mine to an existing railway in Queensland, and for that purpose the Commissioner intends to purchase the rolling stock, including wagons, necessary to operate it. The Commissioner has entered into a contract, arrangement or understanding with the fifth respondent by which it is provided that either the first, third, fourth or fifth respondent will supply the freight cast steel bogies and other specialized equipment necessary for the wagons to be constructed and that the Commissioner will acquire such equipment from either the first, third, fourth or fifth respondent and not by way of competitive tender as in the past. The Commissioner has also entered into a contract, arrangement or understanding with the first respondent to accept supply of this equipment from the first respondent or from the third, fourth or fifth respondent. These contracts, arrangements or understandings are said to have the purpose, or to be likely to have the effect, of substantialy lessening competition within the meaning of s. 45 (3) of the Trade Practices Act and the applicants seek orders restraining the Commissioner and the first and fifth respondents from giving effect to their provisions. It is further alleged that both the first respondent and the fifth respondent have provided or agreed to provide financial assistance to the Commissioner, on condition that the Commissioner will not acquire the specialized railway equipment from a competitor of the respondent companies, or on condition that the Commissioner will acquire the equipment from the third or fourth respondent. It is said that the first and fifth respondents are thereby engaging in the practice of exclusive dealing contrary to s. 47 (2) of the Trade Practices Act, and orders are sought restraining those respondents from engaging in that practice. By his defence the Commissioner raised a number of points of law which shortly stated are as follows:
1. The Trade Practices Act does not apply to the Commissioner because - (a) The Commissioner is not a trading corporation; and (b) The Commissioner is an instrumentality or agent of the Crown in right of the State of Queensland and is entitled to all its rights, powers and privileges, and the Trade Practices Act is not intended to bind the Crown in the right of a State.
2. In the alternative, in so far as the Trade Practices Act applies to the conduct of the Commissioner alleged in the points of claim, it is contrary to s. 102 of the Constitution and invalid. (at p112)

2. So much of the cause as was raised by these defences was removed into this Court. (at p112)

3. The applicants thereupon sought to discontinue the proceedings as against the Commissioner, although they wished to continue the proceedings against the respondent companies. The Commissioner opposed this course, as he was entitled to do. All the relief sought, if granted, would have invalidated, in whole or in part, a transaction to which the Commissioner was a party. The orders sought under s. 45 of the Trade Practices Act, if made only against the respondent companies, would affect the rights of the Commissioner just as much as if they were made against him as well. By those orders the respondents would be enjoined from supplying the equipment to the Commissioner, and if the Commissioner, knowing that the court had made such an order, received the equipment he would aid and abet a contravention of the order and be a party to a contempt of court. The orders under s. 47 of the Trade Practices Act were never sought against the Commissioner, but if made they would prevent the respondents from providing finance to the Commissioner on conditions to which he had agreed. In these circumstances the question arose whether the Trade Practices Act affects the interests of the Commissioner in that way, and the Commissioner was entitled to remain a party to the proceedings unless the applicants entirely abandoned their present claims, which they were not prepared to do. The applicants indicated that they wished to amend their points of claim in the Federal Court, to raise a new case that the respondent companies had, contrary to the Trade Practices Act, engaged in conduct (precontractual conduct it was called) in which the Commissioner played no part. Nothing that I have said is intended to indicate that the Commissioner would be a necessary party to the proceedings if that were the only case presented against the respondent companies - that question is not before us and I express no views upon it. However, the applicatnts made it clear that they wished to persist, if only in the alternative, in their present claims against the respondent companies, based on the allegations made in the points of claim in their present form, and in those circumstances the fact that they proposed to add further claims had no bearing on the question whether they were entitled to discontinue the proceedings as against the Commissioner. (at p113)

4. The first question raised by the defence, whether the Commissioner is a trading corporation within the Trade Practices Act, is not the question which logically first falls for decision. If the Commissioner is entitled to the immunities of the Crown, and if for that reason the Trade Practices Act does not apply either directly or indirectly to prejudice his interests, it is immaterial whether or not he is a trading corporation. On that hypothesis, even if he were a trading corporation, the Trade Practices Act would still not apply to him. Since, for reasons which I shall elaborate, I have reached the conclusion that the Trade Practices Act does not apply to prejudice the interests of the Commissioner, I need not decide whether he is a trading corporation. However, to avoid possible misunderstanding, I should add that as at present advised I am clearly of the opinion that the Commissioner is not a trading corporation within the Trade Practices Act - his position seems to me stronger than that of the county council considered in Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533 . (at p114)

5. The question whether the Commissioner is an agency of the Crown, and entitled to its immunities, presents little diffuculty, because the Railways Act, 1914 (Q), as amended ("the Railways Act") contains what appears to be an unequivocal expression of the intention of the Queensland legislature on the point. The Commissioner is appointed by the Governor-in-Council under s. 6 of the Railways Act, and by s. 8 (1) of that Act it is provided as follows:

"The Commissioner, representing the Crown, shall be a corporation sole by the name of 'The Commissioner for Railways', and by that name shall have perpetual succession and an official seal which shall be judicially noticed, and shall be capable in law of suing and being sued, and shall have power to take, purchase, sell, exchange, lease, and hold land, goods, chattels, and other property. The Commissioner, as such corporation, for all the purposes of any Act, shall have and may exercise all the powers, privileges, rights, and remedies of the Crown."

Although the sub-section does not use the word "immunities" it can hardly be doubted that the expression "powers, privileges, rights and remedies" was intended to be used in a wide sense, and to include immunities and exemptions. The reference to the Commissioner as "representing" the Crown might be thought sufficient in itself to entitle the Commissioner to the immunities of the Crown. In Wynyard Investments Pty. Ltd. v. Commissioner for Railways (N.S.W.) (1955) 93 CLR 376 , this Court considered the position of the Commissioner for Railways under a New South Wales statute which contained the following provision: "For the purposes of any Act the Commissioner for Railways shall be deemed a statutory body representing the Crown." The majority of the Court held that this provision was decisive to show that the Commissioner was entitled to the immunities of the Crown; they said that the only way a statutory body could represent the Crown would be to act as the servant or agent of the Crown, and that this must be the meaning of the word "representing" in this provision (1955) 93 CLR, at pp 385-388 . The words of the first sentence of s. 8 (1) of the Railways Act are clearer than those of the New South Wales statute considered in that case, for the statement in the latter provision that the Commissioner should be deemed a statutory body representing the Crown "For the purposes of any Act" caused some difficulties of construction, and led Fullagar and Kitto JJ. to dissent (1955) 93 CLR, at p 401 . (at p115)

6. There are other considerations that support the view that the Commissioner is intended to be treated as an agent of the Crown and to be entitled to its immunities. An important question is whether the body whose status is in question is subject to direct ministerial control, or is independent of the government and has discretionary powers of its own: see Grain Elevators Board (Vict.) v. Dunmunkle Corporation (1946) 73 CLR 70, at p 76 . The Railways Act does of course leave the Commissioner with some discretionary powers, but in many important respects it subjects him to direct control either by the legislature (e.g., ss. 33-35), the Governor-in Council (e.g., ss. 38, 42A, 71, 75A, 75B and 128) or the Minister (e.g., ss. 94, 95, 97). All moneys payable to the Commissioner are payable into Consolidated Revenue (s. 99). It is particularly important for present purposes that although by s. 95 the Commissioner is given power to enter into contracts, it is provided that "no such contract shall be of any force or effect unless or until the same has been approved and ratified by the Minister by writing under his hand": s. 95 (1). Further contracts made for the purposes of the Railways Act and in accordance with its provisions "shall be binding upon the Commissioner on behalf of the Crown": s. 96 (3). (at p115)

7. It has always been recognized in Australia that the conduct of railways is a function of the governments of the States: see the Railways Servants Case (1906) 4 CLR 488, at pp 534, 535 ; Wynyard Investments Pty. Ltd. v. Commissioner for Railways (N.S.W.) (1955) 93 CLR, at pp 385, 390, at p 397 ; and General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, at p 134 . That fact is by no means conclusive, for a body which discharges public functions is not necessarily an agent of the Crown, but it does provide some assistance to the view that the Commissioner is acting on behalf of the Crown. However, when all the matters which I have mentioned are considered, there can be no doubt that the Commissioner is an agent of the Crown in right of the State of Queensland, and entitled to its privileges and immunities. If the provisions of the Trade Practices Act do not extend to and bind the Crown in right of the State of Queensland they do not extend to and bind the Commissioner. (at p115)

8. It is an established rule of construction that no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound; there will be such a necessary implication if it is manifest from the very terms of the statute that it was the intention of the legislature that the Crown should be bound: Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61 . The Trade Practices Act, by s. 2A, expressly states that (subject to that section) it binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. The Act is however silent on the question whether it is intended to bind the Crown in right of a State. The question thus arises whether the rule to which I have referred means that a statute of the Commonwealth will not be construed as binding the Crown in right of a State unless it appears by express words or necessary implication that it was intended to do so. In other words, does the rule apply to the Crown in all its capacities, or only to the Crown in right of the community whose legislation is under consideration? When construing a Commonwealth statute does "the Crown", for the purpose of this rule, mean only the Crown in right of the Commonwealth or does it include the Crown in right of a State? (at p116)

9. The authorities on this question are not altogether satisfactory. In Roberts v. Ahern (1904) 1 CLR 406 the question was whether a section of a Victorian statute passed in 1890 bound a servant while acting in performance of a contract made by his employer with the Commonwealth. It was apparently not contested that if the section did not bind the Government of Victoria when the Act was passed it did not bind the Government of the Commonwealth when the latter was established (1904) 1 CLR, at pp 417, 419 . The Court, applying the established rule, held that the statute did not affect the Victorian Government, and therefore held that it did not affect the Commonwealth Government or its agencies. For this purpose the Court treated the independent contractor and his servants as agents of the Commonwealth. In the next case, R. v. Sutton (1908) 5 CLR 789 , the question was whether a Commonwealth statute, viz. the Customs Act 1901, as amended, applied to goods imported by a government of a State. The Court held that it did. All the members of the Court were of opinion that the rule of construction that the Crown is not bound without express words or necessary implication had no application in deciding the question. With the possible exception of Isaacs J., they all appeared to agree that this rule of construction "cannot be applied to determine whether the enactment binds the King as representing some other community" (per O'Connor J. (1908) 5 CLR, at p 806 or, as Higgins J. succinctly put it (1908) 5 CLR, at p 817 : " . . . the doctrine of construction applies to the Government of the State in State Acts, to the Government of the Commonwealth in Federal Acts". (at p117)

10. See also per Griffith C.J. (1908) 5 CLR, at p 796 ; per Barton J. (1908) 5 CLR, at p 801 ; and per Isaacs J. (1908) 5 CLR, at p 814 . It is clear that in reaching this conclusion at least four of the Justices expressly relied on what they conceived to be the fact that the Crown as head of the Commonwealth Government is a separate juristic person from the Crown as head of the State government: see per Griffith C.J. (1908) 5 CLR, at p 797 ; per O'Connor J. (1908) 5 CLR, at pp 804-805 ; per Isaacs J. (1908) 5 CLR, at p 813 ; and per Higgins J. (1908) 5 CLR, at p 817 . Barton J. probably acted on the same view (1908) 5 CLR, at p 801-802 . The consequence of holding that the Crown in right of a State was a separate and distinct person from the Crown in right of the Commonwealth was stated by O'Connor J. (1908) 5 CLR, at p 805 , to be that the King's representative in a State, outside the exercise of his powers, is "no more than an individual subject of the King". Griffith C.J. and Barton J. appear to have based their decision also on the fact that the Customs Act was passed in the exercise of an exclusive power (1908) 5 CLR, at pp 797, 803-804 , although it is difficult to see what significance that fact has apart from the circumstance that the Crown of the State was a juristic person separate from the Crown of the Commonwealth. Roberts v. Ahern (1904) 1 CLR 406 is cited with approval in some of the judgments, although it seems difficult to reconcile the view accepted in that case with the principle of R. v. Sutton (1908) 5 CLR 789 . The actual decision in R. v. Sutton (1908) 5 CLR 789 may be supported on the ground that it appeared by necessary implication that the Customs Act was intended to bind the States, since otherwise its provisions might have been rendered ineffective, as Isaacs J. pointed out (1908) 5 CLR, at pp 812-814 . The decision was followed in Attorney-General (N.S.W.) v. Collector of Customs for N.S.W. (1908) 5 CLR 818 , where the Government of New South Wales was held liable to pay customs duty on steel rails imported for use in connexion with the government railways. (at p117)

11. The question which I am now discussing can arise where there is no federal element in the case. In Broken Hill Associated Smelters Pty. Ltd. v. Collector of Imposts (Vict.) (1918) 25 CLR 61 the question for decision was whether His Majesty's Imperial Government, which was conducting a war risks insurance scheme in the course of which it effected marine insurances, was a "company, person or firm" within s. 98 of the Stamps Act 1915 (Vict.). It was held that it was not. This decision was partly based on the actual words of the relevant section of the Stamps Act, but Isaacs and Rich JJ. (1918) 25 CLR, at p 66 said that they applied to the section the language of the Privy Council in Attorney-General (N.S.W.) v. Curator of Intestate Estates (1907) AC 519, at p 523 :

"The question therefore arises whether the present Act binds the Crown. The Crown is not named in it, nor can their Lordships see any clear indication of an intention to bind the Crown. Prima facie, therefore, the Crown is not affected by it."

Their Honours did not advert to the fact that the statute was a Victorian statute whereas the Crown was the Imperial Crown, nor did they discuss R. v. Sutton (1908) 5 CLR 789 , although that case was cited in argument. (at p118)

12. In Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 this Court rejected the doctrine which had been the foundation of most of the judgments in R. v. Sutton (1908) 5 CLR 789 . It was held that the Crown is one and indivisible (1920) 28 CLR, esp atp 152 . It was not necessary to decide what rule of construction applies when the question is whether a Commonwealth statute applies to servants of the State Crown, since the Commonwealth statute there considered contained an express provision resolving the question. However, Higgins J. (1920) 28 CLR, at p 165 repeated the views which he had already expressed in R. v. Sutton (1908) 5 CLR 789 . The question is not expressly dealt with in the joint judgment of Knox C.J., Isaacs, Rich and Starke JJ., but their Honours did say (1920) 28 CLR, at pp 153-154 :

"These considerations establish that the extent to which the Crown, considered in relation to the Empire or to the Commonwealth or to the States, is bound by any law within the granted authority of the Parliament, depends on the indication which the law gives of intention to bind the Crown."

This passage does perhaps suggest that they considered that the rule that the Crown is not bound by a statute unless it is manifest from its terms that it was intended that it should be bound applies to the Crown in all its capacities, but it is probably going too far to regard the statement as an expression of concluded opinion on the point. (at p119)

13. In Pirrie v. McFarlane (1925) 36 CLR 170, at pp 217-218 Higgins J. again repeated his view that no presumption arises that a State Act is not intended to bind servants of the Crown in right of the Commonwealth. In that case one of the questions that was decided was that a member of the R.A.A.F. who, without being licensed in accordance with the Motor Car Act 1915 (Vict.), drove a motor car on a public highway pursuant to an order of his superior officer was guilty of an offence against s. 6 of that Act. The Motor Car Act contained an express provision that "the Act applies to persons in the service of the Crown as well as to other persons". Starke J. re-asserted (1925) 36 CLR, at p 225 that the Crown is one and indivisible, and seemed to think that the intention of the legislature to apply the provisions of the Act to servants of the Commonwealth appeared clear enough and that the question that then arose was one of legislative power: also (1925) 36 CLR, at pp 226-228 . Knox C.J. agreed with Starke J. on this aspect of the case (1925) 36 CLR, at pp 179-180 . Isaacs J. (who dissented) did not agree that a State Act binding the Crown simpliciter binds the Crown in right of the Commonwealth (1925) 36 CLR, at p 185 . Rich J. does not appear to have expressed any view on this question. I am, with all respect, unable to accept the view, expressed by Professor Hogg in Liability of the Crown (1971), p. 193, that in this case "the presumption was considered and held to be inapplicable". In my opinion, only Higgins J. acted on that view. (at p119)

14. The question now under consideration again fell for decision in Minister for Works (W.A.) v. Gulson (1944) 69 CLR 388 . In that case it was held by Rich, Starke and Williams JJ. (Latham C.J. and McTiernan J. dissenting) that the National Security (Landlord and Tenant) Regulations of the Commonwealth did not bind the Crown in right of the State. Latham C.J. (1944) 69 CLR, at pp 347-353 and McTiernan J. (1944) 69 CLR, at pp 359-361 regarded R. v. Sutton (1908) 5 CLR 789 as authoritative. Rich J. and Williams J., on the other hand considered that R. v. Sutton (74) is inconsistent with the accepted principle of the unity of the Crown, and that its authority had been destroyed by the Engineers' Case (1920) 28 CLR, at pp 152-153 : per Rich J. (1944) 69 CLR, at pp 356-357 , per William J. (1944) 69 CLR, at pp 356-357 . William J. further said that R. v. Sutton (1908) 5 CLR 789 was inconsistent with two decisions of the Privy Council (Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick (1892) AC 437 and In re Silver Brothers Ltd. (1932) AC 514 and that some statements in the Engineers' Case (1920) 28 CLR, at pp 153, 154 , which I have already quoted in part, " can only mean that the Crown in right of a State is only bound by Commonwealth legislation when the legislation shows expressly or by implication an intention to that effect" (1944) 69 CLR, at p 367 . He referred also to Broken Hill Associated Smelters Pty. Ltd. v. Collector of Imposts (Vict.) (1918) 25 CLR 61 . The third member of the majority, Starke J., delivered reasons which have been differently understood by different readers. The headnote to the case suggests that Starke J. based his conclusion solely on the construction of the regulations, and the same view was apparently taken by Latham C.J. in Essendon Corporation v. Criterion Theatres Ltd. (1947) 74 CLR 1, at pp 12-13 and was certainly accepted by Owen J. in Public Curator (Q.) v. Morris (1951) 51 SR (NSW) 402, at p 410 . The reasons for judgment given by Starke J. were expressed in the following words (1944) 69 CLR, at p 358 :

"The constitutionality of the Regulations was not attacked on the argument before this Court. By a rule of construction, it was said, however, that the Crown is not bound by a statute unless specially named or included by necessary implication despite the distinction taken in R. v. Sutton (1908) 5 CLR 789 between the Crown in the right of the Commonwealth and the Crown in the right of the States. A rule of construction is not however, 'inflexible, but is merely a presumption in favour of a particular meaning in case of ambiguity' (Craies on Statute Law, 4th ed. (1936), p. 7). So the construction of the Regulations depends on the language used in relation to the subject matter. Ordinarily it may be said, as was said in Attorney-General v. Donaldson , that prima facie the law as made by Parliament is made for subjects and not for the Crown. And, assuming, that which I am not prepared to concede, that the Commonwealth can regulate the land policies of the States in relation to their tenants under the defence power, still such regulations would require the most explicit and the clearest words. The regulation in the present case certainly uses general words, but that is not enough . . ."

Although this passage is not entirely clear, it appears to me, with all respect, that Starke J. was acting on the presumption that the regulation would not bind the Crown unless an intention to do so appeared by express words or necessary implication, and this notwithstanding that the legislation was that of the Commonwealth and the Crown was the Crown in right of the State. Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338 is in my opinion a decision of the Court opposed to R. v. Sutton (1908) 5 CLR 789 . (at p121)

15. The question was again discussed in Essendon Corporation v. Criterion Theatres Ltd. Latham C.J. (1947) 74 CLR, at pp 12-13 and McTiernan J. (1947) 74 CLR, at pp 27-28 , on the one hand, and Rich J. (1947) 74 CLR, at p 15 and Williams J. (1947) 74 CLR, at p 30 , on the other, repeated the views which they had respectively expressed in Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338 , but the fifth member of the Court, Dixon J., did not discuss the matter. In The Commonwealth v. Bogle (1953) 89 CLR 299, at p 254 Williams J. again re-asserted his former views, with which Taylor J. in effect agreed, saying that the rule as stated by Rich J. in Gulson's Case (1944) 69 CLR 338 must now be taken to be the true rule (1953) 89 CLR, at p 275 . Finally in The Commonwealth v. Rhind (1966) 119 CLR 584 Barwick C.J. (1966) 119 CLR, at pp 598-599 and Menzies J. (1966) 119 CLR, at pp 606-607 , without discussion, held that the rule of construction that the Crown is not bound by a statute except by express mention or necessary implication applied to a State Act with the consequence that the Act did not apply to the Crown in right of the Commonwealth. Their decision of the question whether the State Act did so apply depended on the operation which they gave to the rule of construction. McTiernan J. agreed with the reasons of the Chief Justice (1966) 119 CLR, at p 600 . The other members of the Court, Taylor and Owen JJ., decided the case on other grounds. It appears right to say that the ratio decidendi of the majority was that the rule of construction applies although the statute was passed by the legislature of a State and the Crown concerned is the Crown in right of the Commonwealth. However, the question was not the subject of discussion, and McTiernan J. who had formerly voiced opinions contrary to those which he there appears to have accepted without comment may have intended to decide the case on the construction of the section without recourse to the presumption. (at p121)

16. The balance of the authorities, as they stand, inclines in favour of the wider view of the rule of construction. That view is supported by the decisions of the majority of this Court in Broken Hill Associated Smelters Pty. Ltd. v. Collector of Imposts (Vict.) (1918) 25 CLR 6 , Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338 and The Commonwealth v. Rhind (1966) 119 CLR 584 , and also, in my opinion, by Roberts v. Ahern (1904) 1 CLR 406 . The only actual decision to the contrary, R. v. Sutton (1908) 5 CLR 789 , is based on reasoning which cannot be accepted in the light of the Engineers' Case (1920) 28 CLR 129 and other authorities including the decisions of the Judicial Committee cited by Williams J. in Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338, at p 365 (at p122)

17. I would not wish to decide whether the wider rule of construction should be adopted in preference to the narrower rule by debating the merits of the doctrine of the indivisibility of the Crown, which seems more remote from practical realities than when the Engineers' Case (1920) 28 CLR 129 was decided, and which is of little practical assistance in many cases, as I said in Robinson v. Western Australian Museum (1977) 138 CLR 283 . In my opinion the wider rule accords more with convenience and with the reasons underlying the rule. Although Professor Hogg can discern no clear rationale for the presumption that general words do not bind the Crown, and says that the history of the presumption has been shown to be a melancholy example of communis error (Liability of the Crown, p. 194), it seems to me, with all respect, that the rule of construction, which without doubt is firmly established in the law, rests on reasons which are understandable enough. Those reasons were clearly stated by Story J. in United States v. Hoar (1821) 2 Mason 311, at pp 314, 315 (U.S. Circuit Court), in a passage cited in Roberts v. Ahern (1904) 1 CLR, at p 418:

"Where the government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the Government itself was in contemplation of the legislature, before a court of law would be authorized to put such an interpretation upon any Statute. In general, Acts of the legislature are meant to regulate and direct the acts and rights of citizens, and in most cases the meaning applicable to them applies with very different, and often contrary force to the Government itself. It appears to me, therefore, to be a safe rule founded on the principles of the common law, that the general words of a Statute ought not to include the government, or affect its rights unless that construction be clear and indisputable upon the text of the Act."

Exactly the same reason exists for presuming that a statute of the Commonwealth is not intended to bind the Crown in right of a State. Although, within limits that it is now unnecessary to discuss, the Commonwealth can legislate so as to bind a State, the States are neither subjects of the Commonwealth nor subordinate to it. It is a consequence of our federal system that "two governments of the Crown are established within the same territory, neither superior to the other" (Federal Commissioner of Taxation v. Official Liquidator of E. O. Farley Ltd. (1940) 63 CLR 278, at p 312 , per Dixon J.) Legislation of the Commonwealth may have a very different effect when applied to the government of a State from that which it has in its application to ordinary citizens. It seems only prudent to require that laws of the Parliament should not be held to bind the States when the Parliament itself has not directed its attention to the question whether they should do so. And, of course, as was said in Province of Bombay v. Municipal Corporation of Bombay (1947) AC, at p 63 : ". . . it must always be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plain words." In my opinion it does not appear by express words or necessary implication that the Trade Practices Act is intended to bind the Crown in right of a State. It therefore does not bind the Commissioner. (at p123)

18. It of course follows that the applicants cannot obtain the relief which they seek against the Commissioner, but can they obtain the relief sought against the respondent companies? I have already pointed out that such relief, if granted, would invalidate transactions to which the Commissioner is a party. The first two claims are for injunctions to restrain the respondent companies concerned from giving effect to the provisions of contracts, arrangements or understandings to which the Commissioner was a party. An injunction restraining one of the parties to a contract from completing it affects not only the party against whom it is made; it equally affects the other party to the contract. The third and fourth claims are for injunctions restraining certain of the respondent companies from engaging in the practice of exclusive dealing, which, according to the points of claim, consists in providing, or agreeing to provide, finance and/or financial assistance to the Commissioner on certain conditions. Those injunctions, if granted, will affect the Commissioner as much as the respondent companies. In other words, if the remedies sought are granted against the respondent companies, the Commissioner will be prejudiced by the operation of the Trade Practices Act just as much as if its provisions had been directly enforced against him. (at p123)

19. In Clark v. Downes (1931) 145 LT 20, at p 22 Romer L.J. said: "The Acts not binding the Crown, it is the duty of the courts so to construe the Acts that the Crown and its property are in no way prejudicially affected by the Acts." It was accordingly held in that case, which was followed in Rudler v. Franks (1947) KB 530 , that a successor in title of the Crown was not bound by the Rent Restriction Acts, which did not bind the Crown; one reason given for this decision was that if those Acts did apply as soon as the property passed out of the ownership of the Crown the value of the Crown's reversion would be diminished. Those cases were doubted by Denning L.J. in Bank voor Handel en Scheepvaart N.V. v. Slatford (1953) 1 QB 248, at p 294 (a decision which was reversed on appeal to the House of Lords (1954) AC 584 . Much the same principle as that applied by Romer L.J. seems to have been the basis of the decision in Doyle v. Edwards (1898) 16 NZLR 572 , where it was held that a statutory exemption of Crown property from the operation of building by-laws extended to the case of a building erected on Crown land held by a tenant under the Crown, because otherwise "serious liabilities would be imposed on the Crown" (1898) 16 NZLR, at p 574 . That case has since been followed in New Zealand: Lower Hutt City v. Attorney-General (N.Z.) (1965) NZLR 65 ; Wellington City v. Victoria University (1975) 2 NZLR 301 . The decisions of this Court in Roberts v. Ahern (1904) 1 CLR 406 and Broken Hill Associated Smelters Pty. Ltd. v. Collector of Imposts (Vict.) (1918) 25 CLR 61 appear also to be cases where persons who were not servants or agents of the Crown were held immune from legislation which did not bind the Crown, because the application of the legislation to them would have prejudiced the interests of the Crown. It is not necessary to explore the limits of this principle. The present case is in my opinion a stronger one than In re Telephone Apparatus Manufactures' Application (1963) 1 WLR 463; (1963) 2 All ER 302; (1963) LR 3 RP 462 where it was held that an agreement to which the Crown was not a party was exempt from registration under the Restrictive Trade Practices Act, 1956 (U.K.) because registration of the agreement would be prejudicial to the interests of the Crown (1963) 1 WLR, at pp 474-475, 477, 482-483; (1963) 2 All ER at pp 308, 310 , 313; (1962) L.R. 3 R. P., at pp. 485, 488, 494-495. . To hold respondent compaines have made with the Commissioner, so as to frustrate those transactions, would be to give that Act an operation which would affect prejudicially the interests of the Crown. Since the Trade Practices Act does not bind the Crown, it does not have that effect. (at p124)

20. For these reasons I consider that the relief sought upon the basis of the present points of claim must be refused. (at p125)

21. It is accordingly unnecessary for me to express any final opinion on the argument advanced on behalf of the Commissioner that in so far as the Trade Practices Act prohibits the conduct of the Commissioner alleged in the points of claim it is a law with respect to trade and commerce which forbids, as to railways, a preference or discrimination and that since the preference or discrimination in question has not been adjudged unjust and unreasonable by the Inter-State Commission the provisions of the Act are contrary to s. 102 of the Constitution and are invalid. This argument raises a number of questions, some of which are not without difficulty, but it is enough to say that as at present advised I consider that a preference or discrimination shown by the Commissioner in making contracts to obtain railway equipment would not be a preference or discrimination "as to railways" within the meaning of s. 102. (at p125)

22. For the reasons which I have given I would hold that the matters raised in pars. 6 (b) and (c) of the defence of the Commissioner are a bar to the granting of any of the relief sought by cll. (1), (2), (3) and (4) of par. (34) of the points of claim upon the facts as presently alleged in the points of claim. I would remit the case to the Federal Court of Australia to give effect to this judgment and to take any other necessary action in the procedings. (at p125)

STEPHEN J. There is only one point of substance which now falls for decision in this case, despite the array of constitutional and other questions with which, at the outset, it appeared to be replete. In the course of argument most of those questions vanished one by one, whether by concession or for other reasons. What is left is the question whether Commonwealth trade practices legislation is to be interpreted as applicable to practices said to have been engaged in, in relation to a contract to which the Commissioner for Railways for the State of Queensland is a party. (at p125)

2. The applicants originally began proceedings in the Federal Court of Australia. One of those applicants, Bradford Kendall Foundries Pty. Ltd., with which the other applicant is associated, is a manufacturer of railway equipment. Its complaints were: of a contract arrangement or understanding between the Commissioner for Railways and other respondents, some of them its trade competitors, which was said to have the effect of substantially lessening competition, contrary to s. 45 (3) of the Trade Practices Act 1974: of a further contract, etc.,between the Commissioner and one other of the respondents having the like effect, and of the engaging by certain of the respondents in the practice of exclusive dealing, contrary to s. 47 (2) of that Act. These allegations all concern the construction of a new railway line in Queensland and the supply of rolling stock for that line. To know so much is, for present purposes, enough; the details of the allegations and of the circumstances to which they relate need not be recounted. (at p126)

3. By way of defence, the Commissioner for Railways, as one of the respondents, pleaded that the Trade Practices Act did not, on its proper construction, apply to him or regulate his conduct. He also relied, in the alternative, upon the operation of s. 102 of the Constitution. On application by the Commissioner there was removed into this Court so much of the cause as was raised by these two pleas; proceedings in the Federal Court were otherwise stayed. (at p126)

4. The first of the Commissioner's pleas raises at the outset the status of the Commissioner, whether for presently relevant purposes he is to be equated to the Crown in right of the State of Queensland. If so, the question then is whether, in view of that status, the Trade Practices Act has, on its proper interpretation, any application to the transactions here alleged, to which the Commissioner was either a party or with which he was closly associated. (at p126)

5. In the course of argument counsel for the applicants made it clear that it was not sought to challenge the fact that the Commissioner for Railways was, for all presently relevant purposes, the instrumentality or agent of the Crown. This was, in my view, a proper concession. It involves equating the position of the Commissioner to that of the Crown in right of the State of Queensland for purposes of the application of this Commonwealth legislation to the transactions here in question. The Railways Act, 1914 to 1976 (Q), by s. 8 (1), incorporate the Commissioner as a corporation sole "representing the Crown" and confer upon him "all the powers, privileges, rights and remedies of the Crown" - as to which verbal formula see Sundell v. Queensland Housing Commission (No. 5) (1955) St R Qd 162, at p 174 and Housing Commission (N.S.W.) v. Imperial Paint Manufacturers Pty. Ltd. (1956) 73 WN (NSW) 396 and cf. Sundell v. Queensland Housing Commission (No. 3) (1955) St R Qd 130 . The Commissioner is subject to very extensive general powers of detailed ministerial supervision and control and these apply in particular both to the construction of new railway lines and to the acquisition of new rolling stock; the contracts he makes are all made subject to approval and ratification by the Minister; all income from railway operations goes to consolidated revenue. All these circumstances confirm the propriety of the concession which was made and the point of substance can accordingly be decided upon the assumption that the Commissioner is, in relation to the contracts here in question, entitled to the like immunities as would be the Crown in right of Queensland. (at p127)

6. The general rule of the common law is that the Crown is only bound by statute where there exists express mention or necessary implication (Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61 ). In The Commonwealth v. Rhind (1966) 119 CLR 584, at p 598 Barwick C.J. described that rule as one "to be applied universally as of this time in the construction of statutes". However dubious the antecedents of the rule (Hogg, Liability of the Crown (1971), pp. 167, 199-200), and however much it may owe its now entrenched position in the law to alleged dicta which are as unauthoritative in origin as they are ancient (Street, "The Effect of Statutes upon the Rights and Liabilities of the Crown" University of Toronto Law Journal, vol. 7 (1947) 357, at pp. 362- 363), only statute can now alter it. The likelihood of such statutory alteration is, perhaps, not great, experience has been rather to the contrary: versions of the rule even more favourable to the Crown than the rule itself have found their way onto the statute book in Australian jurisdictions, and s. 13 of the Acts Interpretation Act, 1954-1977 (Q.) provides one instance of this. Here it is Commonwealth legislation that is in question and there has been no Commonwealth legislative alteration of the common law rule. Accordingly that common law rule will apply. (at p127)

7. Precisely how it should apply in a federal setting, in this instance to the case of a Commonwealth statute in its application to the Crown in right of a State, was long a matter upon which divergent views were expressed in this Court. The Canadian experience has apparently been no different: D. Gibson, "Interjurisdictional Immunity in Canadian Federalism", Canadian Bar Review, vol. 47 (1969), p. 40. (at p127)

8. This particular case is not an appropriate occasion for detailed consideration of the rule's application to the special problems encountered in a federation, where a number of polities exist, each enacting its own legislation and each representing the Crown. The course of argument before the Court has been such that, in the outcome, it has been almost exclusively from counsel for one party only, the Commissioner, that the Court has heard submissions and citation of authority on these matters; submissions made on behalf of the applicants were largely confined to a reference to certain views expressed by Professor Hogg in his work Liability of the Crown (1971). (at p128)

9. The choice has always been seen as lying between confining the rule to the Crown in right of the enacting legislature, only that Crown being immune from its statutes (unless bound by express words or necessary implication), or, instead, extending the immunity to the Crown in right of every government which represents it. As I read the more recent decisions of this Court, and in particular what was said by Taylor J. in Commonwealth v. Bogle (1953) 89 CLR 229, at p 279 and by Menzies J. in The Commonwealth v. Rhind (1966) 119 CLR, at pp 606-607 , it is the latter, wider view which has, on balance, prevailed. (at p128)

10. The Court not having had the benefit of full argument on the point from both sides of the record, I would have wished, had it been possible, to rest my decision not upon one or other version of the rule but, rather, upon some manifest legislative intent appearing upon the face of the legislation: the more so in view of three considerations, the marked conflict of judicial views expressed in the past, the substantial body of modern academic opinion opposed to the wide view of the rule and the extent to which that wide view appears to be based, in part at least, upon the doctrine which regards the Crown as one and indivisible. Constitutional changes which have occurred and are still occurring within what is now the Commonwealth of Nations have led the late Professor de Smith to say, of this doctrine, that the Crown is "no longer indivisible or undivided": Constitutional and Administrative Law, 3rd ed. (1977), p. 109. The presence of republics as member States within the Commonwealth and instances of armed conflict between member States serve to emphasize the present artificiality of the doctrine. Described by W. E. Cuppaidge as "a highly controversial doctrine" ("The Divisibility of the Crown", Australian Law Journal, vol. 27, (1954), p. 594) and by Latham C.J. as a legal principle the formulation of which tended "to dissolve into verbally impressive mysticism" (Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338, at p 350 , it may be that the doctrine is no longer capable of providing any reasoned basis upon which to determine the precise operation, in a federal setting, of the common law rule. It was by reference to quite different considerations that Laskin C.J.C. supported the wide view of the rule in a federal context in Reg. v. Canadian Transport Commission (1977) 75 DLR (3d) 257, at p 268 . (at p129)

11. However, since I regard the terms of the legislation as quite equivocal, containing nothing which of itself makes it clear whether or not it is intended to apply to the Crown in right of Queensland, I must needs have recourse to the rule. In saying this I do not overlook the fact that s. 2A of the Act provides, subject to stated qualifications, that it "binds the Crown in right of the Commonwealth", but I gain no assistance from this: while the fact that only the Commonwealth is thus expressly mentioned might suggest that, but for that express mention, the Act would not apply to the Crown, in whatever right represented, it also accords equally well with precisely the opposite view, that, since an Act binds all Crowns other than that in right of the enacting legislature, need for express mention only arises in the case of the Crown in right of the Commonwealth. (at p129)

12. If, then, the assistance of this rule of statutory interpretation must be invoked it is, I think, the wide view of the rule that I should adopt. I regard it, in light of the authorities, as the now prevailing view and, in the absence of full argument, I have no occasion to do other than accept it. Accordingly, since the Act is devoid either of express reference binding the Crown in right of the States or of necessary implication to that effect, it should, I think, be interpreted as not binding the Commissioner for Railways of the State of Queensland. (at p129)

13. Once this be concluded it follows that the Act will not only not apply directly to the Commissioner but will also not apply so as to prejudice its interests when in contractual relationship with parties to whom the Act clearly applies or when otherwise interested in transactions affecting those parties (In re Telephone Apparatus Manufacturers' Application (1963) 1 WLR 463; (1963) 2 All ER 302; (1962) LR 3 RP 462 (at p129)

14. In these circumstances it is unnecessary to consider the alternative submission urged on behalf of the Commissioner for Railways which sought to rely upon s. 102 of the Constitution. It is enough if, in resolution of this application, I state my agreement with the conclusions expressed in the concluding paragraph of the joint judgement of Mason and Jacobs JJ. (at p129)

MASON AND JACOBS JJ. An action was commenced in the Federal Court of Australia in which Bradken Consolidated Ltd. and Bradford Kendall Foundries Pty. Ltd. were the applicants and the Broken Hill Proprietary Company Ltd. ("BHP"), the Commissioner for Railways for the State of Queensland ("the Commissioner for Railways"), Commonwealth Steel Company Ltd. ("Commonwealth Steel"), Commonwealth Steel (Moorooka) Pty. Ltd., and Dampier Mining Company Ltd. ("Dampier") the respondents. (at p130)

2. The applicants sought injunctions restraining the respondents BHP, the Commissioner for Railways and Dampier, from giving effect to certain contracts arrangements and understandings alleged to be contrary to s. 45 of the Trade Practices Act 1974 as amended. Injunctions were also sought restraining BHP and Dampier from respectively engaging in the practice of exclusive dealing contrary to the provisions of s. 47 (2) of that Act. (at p130)

3. Points of claim were filed pursuant to an order of the Federal Court made on 2nd March 1978. A new railway is to be constructed from the area of the Gregory Coal Mine, in respect of which application for a mining lease has been made by a company which has sub-leased or proposes to sub-lease the area to Dampier. It is claimed that BHP and Dampier and BHP, Commonwealth Steel and Commonwealth Steel (Moorooka) Pty. Ltd. are respectively deemed to be related to each other within the meaning of the Trade Practices Act. See s. 4 (2) (b). There is alleged to be a contract arrangement and understanding between the Commissioner for Railways whereby Dampier has agreed to lodge a security deposit with the Commissioner for Railways in an amount sufficient to finance and enable the Commissioner for Railways to build the new railway line and to purchase locomotives and rolling stock necessary to operate it. It is alleged that it is a provision of the said contract that either BHP, Commonwealth Steel, Commonwealth Steel (Moorooka) Pty. Ltd. or Dampier will supply and that the Commissioner for Railways will amongst other things acquire the freight cast steel bogies, draft gear assemblies, draft gear retaining plates and wearplates and headstock striking brackets and coupler carrier plates necessary for the wagons to be constructed for use on the said line from one or other of the abovenamed companies and not by way of the process of competitive tender. Alternatively, it is claimed that there is an understanding in similar terms that the bogies etc. will be acquired by the Commissioner for Railways from either BHP, Commonwealth Steel, Commonwealth Steel (Moorooka) Pty. Ltd. or Dampier. It is claimed that these provisions of any contract arrangement or understanding and the giving effect to them have the purpose or would have or be likely to have the effect of substantially lessening competition within the meaning of s. 45 (3) of the Act. (at p130)

4. Then substantially the same allegations are repeated in the points of claim and it is alleged that BHP has provided or agreed to provide finance and/or financial assistance to the Commissioner for Railways on the condition that he will not acquire the described goods directly or indirectly from a competitor of BHP or the other companies. The applicant says that thereby BHP is engaging in trade or commerce in the practice of exclusive dealing contrary to the provisions of s. 47 (e) of the said Act. (at p131)

5. Similar allegations are repeated with variations in the names and number of respondents acting in the manner alleged, all containing the allegation that the finance and/or financial assistance is to be provided to the Commissioner for Railways on condition that he will acquire the goods from some one or others of the other respondents and will not acquire the goods otherwise. (at p131)

6. The Commissioner for Railways delivered a defence on 20th March 1978. Amongst the matters of defence were the following:

"6. On its proper construction, the Trade Practices Act 1974 as amended (herein referred to as 'the Act') does not apply to the Second Respondent," (i.e. the Commissioner for Railways) "or purport to regulate the conduct of the Second Respondent, in that - (a) the Second Respondent is not, and in the Points of Claim is not alleged to be, a trading corporation within the meaning of the Act; (b) in terms of the 'Railway Act 1914-1976' or otherwise the Second Respondent: - (i) is an instrumentality or agent or authority of the Crown in right of the State of Queensland; (ii) represents the Crown in right of the State of Queensland and is entitled to all the rights, powers and privileges thereof; (c) The Act is not intended to bind the Crown in right of a State. 7. In the alternative, any conduct alleged in the Points of Claim in which, contrary to the provisions of the Act, the Second Respondent is engaging is conduct which is or will result in a preference within the meaning of section 102 of the Constitution: - (a) by the Second Respondent to the other Respondents or one or more of them; (b) which is not undue and unreasonable, or unjust to any State; (c) which has not been adjudged by the Interstate Commission to be undue and unreasonable, or unjust to any State. 8. In so far as the Act purports to prohibit or forbid such conduct on the part of the Second Respondent, the Act: - (a) is a law which was or could have been enacted pursuant to the power to make laws conferred on Parliament by Section 51 (i) and Section 98 of the Constitution; (b) is or has been enacted contrary to Section 102 of the Constitution;

(c) is beyond the legislative power of Parliament and is invalid." (at p132)

7. On 7th April 1978 this Court ordered that there be removed into this Court so much of that pending cause as is raised in these paragraphs of the defence. (at p132)

8. It should next be mentioned that the applicants sought to discontinue against the Commissioner for Railways in this Court but this Court concluded that the nature of the claim and the matters alleged did not make this a practicable course and the application was refused. (at p132)

9. When the matter came on for hearing there was no appearance for any respondent other than the Commissioner for Railways. Further, for the applicants it was made clear that no relief was now sought against the Commissioner for Railways. As will appear, this does not affect the substance of the questions raised in the defence or the interest of the Commissioner for Railways in the proceedings and their result. However it was made clear that there was no intention of alleging that the Commissioner for Railways was a trading corporation within the meaning of the Trade Practices Act, but that what was claimed was that the applicants were entitled to relief whether or not that be so. Argument therefore proceeded upon the questions of law raised in pars. 6, 7 and 8 of the defence, which in the light of this elucidation, can be narrowed down to the following questions:
(1) Is the Commissioner for Railways an instrumentality or agent or authority of the Crown in right of the State of Queensland?
(2) If so, is it the legislative intention that the Trade Practices Act should bind the Crown in right of the State of Queensland?
(3) If that is not the legislative intention, does such a contract arrangement or understanding as is alleged with the Crown in right of the State of Queensland or the provision of finance and/or financial assistance to that Crown on the conditions alleged fall within the prohibitions contained in ss. 45 and 47 of the Trade Practices Act?
(4) If the legislative intention in the Trade Practices Act is to bind the State of Queensland, are ss. 45 and 47 laws with respect to trade and commerce which forbid, as to railways, any preference or discrimination by a State or by any authority constituted under a State within the meaning of s. 102 of the Constitution? (at p133)

10. Upon the view which we take of the answers which ought to be given to the first three questions, this last question does not arise. We therefore content ourselves with shortly stating that in our opinion s. 102 is concerned with forms of preference and discrimination in those aspects of railways which directly or indirectly result in a preference or discrimination in the use of railways. It is not inconceivable that some particular construction of or failure to construct a railway could be regarded as a preference or discrimination. We do not find it necessary to decide this point, but we are satisfied that a preference or discrimination unrelated in any way to the use of any railway but related only to conditions of contracts for the building thereof or of its rolling stock is not a preference or discrimination within the language of s. 102. (at p133)

11. We now turn to the first three questions which we have posed.

(1) Is the Commissioner for Railways an instrumentality or agent or authority of the Crown in right of the State of Queensland? (at p133)

12. Section 8 (1) of the Railways Act, 1914-1976 (Q.) provides:

"(1) The Commissioner, representing the Crown, shall be a corporation sole by the name of 'The Commissioner for Railways', and by that name shall have perpetual succession and an official seal which shall be judicially noticed, and shall be capable in law of suing and being sued, and shall have power to take, purchase, sell, exchange, lease, and hold land, goods, chattels, and other property. The Commissioner, as such corporation, for all the purposes of any Act, shall have and may exercise all the powers, privileges, rights, and remedies of the Crown."

The making of contracts by the Commissioner for Railways is subject to the provision in s. 95 (1) that no contract shall be of any force or effect unless or until the same has been approved and ratified by a Minister of the Crown by writing under his hand. By s. 96 (1) contracts are to be in the corporate name of the Commissioner and by s. 96 (3) contracts made in accordance with the section are declared to be binding on the Commissioner of Railways on behalf of the Crown as well as on all other parties thereto. Further, in particular relation to the construction of railways the approval of the plans by Parliament is necessary (ss. 33 and 34) and after approval the Governor in Council may cause the railway to be constructed and may give such directions to the Commissioner as appear expedient for the execution of the works (s. 35). There can be no doubt that the Commissioner for Railways is an instrumentality agent or authority of the Crown in right of Queensland. (2) If so, is it the legislative intention that the Trade Practices Act should bind the Crown in right of the State of Queensland? (at p134)

13. The principal argument submitted on this question is that a legislature is presumed to bind the Crown in all capacities except its capacity as sovereign of the legislating polity. Therefore the Trade Practices Act would be presumed in the absence of contrary legislative intention (as is now expressed in s. 2A of the Act) not to bind the Crown in right of the Commonwealth but would be presumed to bind the Crown in right of a State. Therefore, it is said, a legislative intention rebutting this presumption must be found in the Trade Practices Act and it cannot be so found. (at p134)

14. But is there any such presumption? (at p134)

15. In Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338 Latham C.J. and McTiernan J. concluded that there was and they adhered to that view in Essendon Corporation v. Criterion Theatres Ltd. (1947) 74 CLR 1 . In the latter case, Latham C.J. stated that upon this question the members of the court who dealt with it in Gulson's Case (1944) 69 CLR 338 were equally divided in opinion (1947) 74 CLR, at pp 12-13 . With great respect we do not think that that is correct. Rich and Williams JJ. were no doubt the members of that Court who were referred to by Latham C.J. as taking a view contrary to his own and that of McTiernan J. However, it appears to us that Starke J. also expressed a contrary view which upon examination may be regarded as even more strongly to the contrary than that of Rich and Williams JJ. when he said (1944) 69 CLR, at p 358 :
"Ordinarily it may be said, as was said in Attorney-General v. Donaldson (1842) 10 M &W 117, at p 124 (152 ER 406, at p 409) , that prima facie the law as made by Parliament is made for subjects and not for the Crown. And, assuming, that which I am not prepared to concede, that the Commonwealth can regulate the land policies of the State in relation to their tenants under the defence power, still such regulations would require the most explicit and the clearest words. The regulation in the present case certainly uses general words, but that is not enough . . . "
It is true that he went on to examine the nature of the particular legislative provisions but it seems to us that this was done by way of reinforcement of the effect of the presumption that the statute binds subjects and not the Crown. We accept the analysis and the conclusion on this question of Taylor J. in Commonwealth v. Bogle (1953) 89 CLR 229, at p 279 that the Crown in all its capacities is prima facie not bound by a statute unless this is provided for expressly or by necessary implication. In the last mentioned case the existence of the presumption was implictly recognized by Fullagar J. (1953) 89 CLR, at p 259 with whom Dixon C.J. and Webb and Kitto JJ. agree. The same view was taken in Commonwealth v. Rhind (1966) 119 CLR 584, at p 598 by Barwick C.J., with whom McTiernan J. agreed (1966) 119 CLR, at p 600 , and by Menzies J. (1966) 119 CLR, at p 606 . (at p135)

16. Starke J. in Gulson's Case (1944) 69 CLR 338, at p 358 emphasizes that it is always a question of construction of the particular statutory provision. This is not inconsistent with the existence of the presumption which he then states because the "necessary implication" that the Crown is intended to be bound may appear from the nature of the statutory provisions and the whole subject matter of the legislation; but at the same time it must be borne in mind that in that kind of case what is being sought in the statute is an implication which is "necessary", and that is a test not easily satisfied. Pirrie v. McFarlane (1925) 36 CLR 170 may be regarded as a case where that test was found to be satisfied and the actual result may on that ground be open to criticism. (at p135)

17. In Gulson's Case (1944) 69 CLR 338 Rich and Williams JJ. relied for their conclusion on the unity and indivisibility of the Crown. On the other hand Latham C.J. said that unity and indivisibility of the Crown, when stated as a legal principle, tended to dissolve into verbally impressive mysticism. The relevance of this concept to the question now being considered has been questioned. See, for example, Hogg, Liability of the Crown (1971), pp. 194, 198- 199. However, it seems to us that Rich and Williams JJ. correctly related the principle of interpretation to the principle upon which they relied. The concept of the unity and indivisibility of the Crown is not denied by the recognition that there are different sources of legislative, executive and judicial power. Indeed, it is only when there are such different sources that the concept becomes important at all. What it means in its application to Australia is that there is one country under the rule of a body of law even though the sources from which the law emanates are different in different cases; that the law binds everyone whom it is intended to bind no matter from which legislative source it springs by virtue of the Constitution, provided that it is a law which it was within the legislative competence of that source to enact and which remains a valid law under the Constitution. That was the effect of the decision in the Engineers' Case (1920) 28 CLR 129 and that decision has never been overturned even though a limitation has been placed on its application to particular situations as a result of development which culminated in the decision in Commonwealth v. Cigamatic Pty. Ltd. (in Liquidation), the Cigamatic Case (1962) 108 CLR 372 . This being the position, it would seem to us that at least as between the Commonwealth and the States there should be an identical presumption of legislative intention not to bind the Crown. (at p136)

18. The concept first developed in R. v. Sutton (1908) 5 CLR 789 that a legislature intends to bind all organs of government other than the organ of government of that legislature is a concept which wholly fails to take account of the fact that there is one body of law applicable to any particular citizen or in any particular part of Australia even though it may be and usually is a composite body of law. The body of statutory law, whatever its source, is presumed to be law applying to subjects, not to the Crown, and we can see no reason why in this respect any distinction should be drawn between the various legislative sources of that body of law. (at p136)

19. It may further be added that in the case of the Trade Practices Act nothing less than a positive presumption of legislative intention to bind the Crown in right of the States would avail the applicants. Section 2A expressly provides that subject to the section the Act (other than Pt X) binds the Crown in right of the Commonwealth in so far as the Crown in that right carries on a business, either directly or by an authority of the Commonwealth. Even if there were no presumption of an intention not to bind the Crown in right of a State but likewise no presumption of an intention to bind that Crown, so that it was necessary to examine the particular nature of the provisions made by the statute, the expression of an intention to bind the Crown in right of the Commonwealth and the absence of a like expression in respect of the Crown in right of the States would as a matter of construction lead to the conclusion that the Crown in right of the States was not intended to be bound.

(3) If that is not the legislative intention, does such a contract arrangement or understanding as is alleged with the Crown in right of the State of Queensland or the provision of finance and/or financial assistance to that Crown on the conditions alleged fall within the prohibitions contained in ss. 45 and 47 of the Trade Practices Act? (at p137)

20. In order to give an affirmative answer to this question it is sufficient to rely simply on the fact that the Commissioner for Railways is an agent authority or instrumentality of the Crown stated by his incorporating statute to represent the Crown. To strike down the contracts arrangements or understandings alleged would affect the exercise by the Commissioner for Railways, representing the Crown, of a right to enter into such contracts arrangements or understandings and to obtain finance in the manner alleged. Further, it would affect the exercise by the Governor in Council of the powers conferred by s. 35 of the Railways Act. The Queensland Act differs from the New South Wales Act examined by Kitto J. in his dissenting judgment in Wynyard Investments Pty. Ltd. v. Commissioner for Railways (N.S.W.) (1955) 93 CLR 376, at p 400 . The considerations which led Kitto J. to expess. dissent in that case are not applicable in the present case. He said:

"It remains to consider one provision of the Transport (Division of Functions) Act 1932-1952 (N.S.W.) which I have not yet mentioned. Section 4 (2) of that Act provides: 'For the purposes of any Act the Commissioner for Railways shall be deemed a statutory body representing the Crown'. In the Supreme Court a majority of their Honours treated this provision as if it meant that, in considering the applicability of any provision of any Act to the commissioner, he shall be deemed to represent the Crown. If that were the true meaning, the result in this case would necessarily be that the immunity of the Crown from s. 62 of the Landlord and Tenant (Amendment) Act would involve the immunity of the commissioner as a notional agent of the Crown in relation to the possession of the subject land. But the language of s. 4 (2) does not appear to me to bear this constraction. It is, no doubt, more than a definition section, but its natural meaning would seem to be that whenever you find in an Act a provision dealing with statutory bodies described as representing the Crown, you are to deem the Commissioner for Railways to be such a body and apply the act to him accordingly."

But the Queensland Act expresses in clear terms what Kitto J. found not to be the true meaning of the New South Wales Act, for it expressly states in s. 8 that the Commissioner for Railways does represent the Crown. That being so, in accordance with such authorities as Wirral Estates Ltd. v. Shaw (1932) 2 KB 247 and In re Telephone Apparatus Manufacturers' Application (1963) 1 WLR 463; (1963) 2 All ER 302; (1963) LR 3 RP 462 , the absence of an intention to bind the Crown in right of Queensland will not only exonerate it from the direct application of the statutory provisions but will also exonerate from the application of those provisions the contracts arrangements or understandings made by that Crown and the other parties thereto as well. (at p138)

21. For these reasons we would hold that the second named respondent by par. 6 (b) and (c) of his defence raises matters which in law are a bar to the granting of the relief sought in par. 34 (1) and (2) of the points of claim and to the granting of the relief sought in par. 34 (3) and (4) of the points of claim in so far as that relief is sought upon the basis of the allegations contained in the points of claim. (at p138)

Murphy J. Part of proceedings pending in the Federal Court of Australia (applications under ss. 45 and 47 of the Trade Practices Act 1974, as amended) have been removed into this Court. This part raises a number of questions. One group is whether:
"On its proper construction, the Trade Practices Act 1974 as amended (herein referred to as "the Act") does not apply to the Commissioner for Railways, or purport to regulate the conduct of the Commissioner for Railways, in that -
(a) the Commissioner for Railways is not, and in the Points of Claim is not alleged to be, a trading corporation within the meaning of the Act; (b) in terms of the 'Railway Act 1914-1976' or otherwise the Commissioner for Railways - (i) is an instrumentality or agent or authority of the Crown in right of the State of Queensland; (ii) represents the Crown in right of the State of Queensland and is entitled to all the rights, powers and privileges thereof; (c) the Act is not intended to bind the Crown in right of a State." (at p138)

2. Another group of questions concerns a defence that any conduct of the Commissioner for Railways is or will result in a preference within s. 102 of the Constitution. (at p138)

3. Substantially the first group of questions may be considered as concerning the applicability of the Trade Practices Act to a contract to which the Commissioner for Railways is a party and to which a respondent trading corporation (or more than one) is a party. The provisions of the Trade Practices Act sought to be applied are ss. 45 and 47. Section 45 provides that a corporation shall not make a contract or arrangement, or arrive at an understanding (or give effect to a provision of a contract, arrangement or understanding) which contains an exclusionary provision or which would have, or be likely to have, the effect of substantially lessening competition. Section 47 provides that a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing. (at p139)

4. I find the resolution of this case extremely difficult because of the way it was presented by the applicants. The applicants conceded that the Commissioner for Railways is relevantly the instrumentality or agent of the Crown. This concession was correct. The Commissioner is a corporation sole "representing the Crown" with "all the powers, privileges, rights and remedies of the Crown" (see s. 8 (1) of the Railways Act 1914 (Q.), as amended). (at p139)

5. One question is whether the Commissioner for Railways is a trading corporation and therefore "a corporation" within the meaning of the Act. If it is, this would appear to lead to the conclusion that ss. 45 and 47 are directly applicable to a contract to which the Commissioner is a party. If this question were to be resolved favourably to the applicants it would have been necessary or at least desirable to review Reg. v. Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 . (at p139)

6. The applicants expressly declined to ask for a review of the correctness of the St George County Council Case (1974) 130 CLR 533 ; instead, they conceded that the Commissioner of Railways was not a trading corporation and, therefore, not a corporation within the meaning of s. 45. As a result, the respondents have not needed to argue the point. I have the gravest doubts that this concession is correct. The case of Reg. v. Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190 adds to my doubts. (at p139)

7. In the Trade Practices Act, "corporation" is defined to mean, unless the contrary intention appears, ". . . a body corporate that is a trading corporation formed within the limits of the Commonwealth . . . ". "Trading corporation" is defined to mean, unless the contrary intention appears, ". . . a trading corporation within the meaning of paragraph 51 (xx.) of the Constitution". No contrary intention appears. In my opinion, those trading corporations of the Crown in right of a State such as the Commissioner for Railways of Queensland are within the constitutional meaning of "trading corporations" within par. 51 (xx.). It would seem therefore that there is a necessary implication that such corporations are referred to in ss. 45 and 47. It would follow that the Act applies to the contracts of trading corporations which represent the Crown in right of a State. Similarly, without more, the Act would apply directly to trading corporations of "the Crown in right of the Commonwealth". (at p140)

8. If that is correct, the Commissioner is a trading corporation and there is no need to consider the question whether ss. 45 and 47 are applicable to a contract ot which the Crown is a party apart from its being a party through a trading corporation. (at p140)

9. However, as the case was conducted, it is necessary to consider whether ss. 45 and 47 apply to contracts to which the Crown in right of a State is party (not through a corporation within the meaning of the Act) and to which another party is a corporation. I will leave the additional operation to the Act given by s. 6 because it is not in point here. (at p140)

10. The question of when federal legislation is interpreted to apply to a State Government is controversial. (at p140)

11. The contention that Acts should be construed not to intend except by express words or necessary words to bind the Government of any political division or subdivision inside or outside Australia of which the Government is (nominally) vested in the Queen finds support in a number of cases relied upon by the Commissioner. The contention depends upon a concept of indivisibility of the Crown which should be discarded as inappropriate to existing circumstances. (at p140)

12. In my opinion, the interpretive rule that the Crown is not bound except by express words or necessary implication applies, in the case of Acts, only to the Government of the Commonwealth. I would take the view that the Crown in right of a State is bound by the Trade Practices Act. But, even if the Act does not bind the Crown in right of the State, it does not follow that ss. 45 and 47 are not applicable to the contract. The cases relied upon by the respondents, in particular Wirral Estates Ltd. v. Shaw (1932) 2 KB 247 and In re Telephone Apparatus Manufacturers' Application (1963) 1 WLR 463; (1963) 2 ALL ER 302; (1963) LR 3 RP 462 do not persuade me to accept the contention. In terms, ss. 45 and 47 are directed to a prohibition of certain conduct by a corporation. Because an Act does not bind the Crown, this does not mean that it has no application to conduct of others in relation to the Crown (see McGraw-Hinds (Aust.) Pty. Ltd. v. Smith (1979) 144 CLR 633 . I would not regard a contract to which the Crown in right of a State is a party as outside the scope of the Act. (at p141)

13. The interpretation of the Act is not to be affected by the accidental circumstance that in this case the Commissioner claims that the contract is exempt from its operation. Restrictive practices and arrangements operate in the national economy in such a way that there are great difficulties in prohibiting or regulating them by State law. The Trade Practices Act is framed in terms designed to protect the public from the operation of restrictive practices and arrangements which experience has shown harms the public not only as individuals but also collectively through federal, State and local governments. An interpertation which removed from the ambit of the Act any contract (and even more any arrangement or understanding) to which an agent of the State was party would greatly reduce the protection otherwise extended by the Act; the rationale for this is hard to discover in face of s. 51 (1) (b) which, subject to regulations under the Act, enables a State Parliament to remove its own government's activities, as well as any other act or thing done in the State, from the operation of the Act. (at p141)

14. Section 2A of the Act (introduced in 1977) which makes plain that the Act binds the Crown in right of the Commonwealth (but does not make it liable to prosecution) also tells against the existence of any rationale for excluding the Commissioner from the application of the Act. (at p141)

15. It has been necessary to consider this case artificially. If in fact the trading corporations of the State are included in its scope, this may be regarded as raising a necessary implication that the Act is intended to bind the Crown in right of the State. (at p141)

16. In my opinion, the matters raised by the Commissioner for Railways are not a bar to the granting of the relief sought. As a majority of the Court hold otherwise, there is no need to deal with the argument on s. 102 of the Constitution, but it seems that s. 102 is not applicable to the circumstances of this case. (at p141)

Orders

The Court holds that the secondnamed respondent by par. 6 (b) and (c) of his defence raises matters which in law are a bar to the granting of the relief sought in par. 34 (1) and (2) of the points of claim and to the granting of the relief sought in par. 34 (3) and (4) of the points of claim in so far as that relief is sought upon the basis of the allegations presently made in the points of claim.

Remit the case to the Federal Court of Australia to give effect to this judgement and to take any other necessary action in the proceedings.

Order that the applicants pay to the secondnamed respondent its costs of and incidental to the proceedings in this Court to be taxed.