Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd

[1977] HCA 38

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Murphy JJ.

COMMISSIONER FOR PRICES AND CONSUMER AFFAIRS (S.A.) v. CHARLES MOORE (AUST.) LTD.

(1977) 139 CLR 449

5 July 1977

Trade Practices—Statutes

Trade Practices—Consumer protection—Reporting agencies—Retail department stores exchanging credit information on a reciprocal basis—Whether reporting agencies—Whether exchange made for reward—"Fee or reward"—Fair Credit Reports Act, 1974-1975 (S.A.), ss. 4*, 6-11, 13. Trade Practices—Consumer protection—Authority given by regulatory body to store to provide credit subject to conditions—Revolving charge account—Condition requiring store to comply with provisions of Fair Credit Reports Act, 1974-1975 (S.A.)—Validity—Consumer Credit Act, 1972-1973 (S.A.), ss. 5, 6**, 13, 19, 21(5), 28—Regulations under Consumer Credit Act, 1972-1973 (S.A.), reg. 8 (3). Statutes—Construction—Parliamentary debates—Ministerial statements of intention—Travaux preparatoires—Remedial statute—Consumer Credit Act, 1972—1974 (S.A.), s. 21 (5). * Section 4 of the Fair Credit Reports Act, 1974-1975 (S.A.) defines "reporting agency" to mean:—"(a) a person or body of persons that, for fee or reward, furnishes consumer reports to traders: or (b) a person or body of persons—(i) that carries on the business of banking; or (ii) whose only or principal business is the lending of money, declared by regulation to be a reporting agency for the purposes of this Act." ** Section 6 (6) of the Consumer Credit Act, 1972 (S.A.) provides "The Tribunal may, on the application of any person, authorize him to provide credit by means of revolving charge accounts, and such an authorization may be granted upon conditions - (a) limiting the frequency with which credit charges may be made on any such account; (b) limiting the amount of credit charges that may be made on any such account, and such other conditions as the Tribunal thinks fit."

Decisions

1977, July 5.
The following written judgments were delivered: -
BARWICK C.J. We have before us an appeal by the South Australian Commissioner for Prices and Consumer Affairs against an order of the Full Court of the Supreme Court of South Australia (1975) 12 SASR 214 which, by majority, allowed an appeal by the present respondents against a decision of the Credit Tribunal established by s. 13 of the Consumer Credit Act, 1972-1973 (S.A.) ("the Consumer Credit Act"), by which it was held that the respondents were "reporting agencies" within the meaning and operation of Pt II of the Fair Credit Reports Act, 1974-1975 (S.A.), ("the Fair Credit Reports Act"). (at p454)

2. We also have before us an appeal by the Credit Tribunal against an order of the Full Court prohibiting the Credit Tribunal from proceeding upon its own motion to vary the conditions on which the respondents are authorized under Pt I of the Consumer Credit Act to provide credit by means of revolving charge accounts (see s. 6 (6) of the Consumer Credit Act). (at p454)

3. The appeals have been heard together but must be separately decided. I shall deal first with the firstmentioned appeal. (at p454)

4. The Credit Tribunal, on the motion of the South Australian Commissioner for Prices and Consumer Affairs seeking orders that the respondents comply with the provisions of the Fair Credit Reports Act, heard evidence as to the practice followed by the respondents of affording each other, on request, information as to the credit worthiness of persons seeking to purchase goods on credit. The Tribunal made a number of findings of fact. Although I find no occasion to recite the detail of these findings, I think it will be conducive to a complete understanding of the matter if I append the Tribunal's statement of these findings. Upon them, with the aid of the construction of the Fair Credit Reports Act furnished by its chairman, the Tribunal found that the respondents were reporting agencies bound to observe the provisions of Pt II of the Fair Credit Reports Act. (at p455)

5. From the findings of the Tribunal it may be accepted that when a retail store, which affords or is prepared to afford like information if asked by one of the respondents, requests of one of them, predominantly by telephone, an indication, usually to be immediately given, as to the credit worthiness of some person who has sought or who seeks to purchase goods of the inquiring store, that respondent, if it has any relevant view, will communicate it to the inquirer. The view expressed as to credit worthiness is founded upon that respondent's own experience of the person seeking credit, or at least is predominantly so founded. The inquiring store is advantaged by the receipt of the information, particularly because it is given promptly and without charge. But, whilst no contractual obligation in that respect exists, the inquiring store understands that it is expected to respond to any like request by the respondent by furnishing its view as to the credit worthiness of the intended customer of the then inquiring respondent. The readiness to give credit in the retail selling of goods may augment sales and thus may contribute to profitable merchandising. Thus, it can be conceded that the giving of information in response to a request of a co-operating store is not gratuitous, in the sense of being charitable, but that it is given with the hope or expectation of advantage or benefit to or in its own business. (at p455)

6. But the question in the case is not whether the information is given in the hope or expectation of subsequent advantage. It is whether it is given by a reporting agency within the meaning and operation of Pt II of the Fair Credit Reports Act. To answer that question, it is not enough to read the definition of "reporting agency" in s. 4 of that Act. It is necessary, not merely to consider the entire expression of the definition, but to consider all relevant provisions of the Act, reading the definition with them and in the light of their operation. (at p455)

7. The Act defines a "consumer report" as a "communication of credit information or personal information (or both)". We are here concerned only with "credit information" which is defined as "information in relation to the credit worthiness of any person". No doubt the definition embraces an oral communication where no written record is made. (at p455)

8. It may be granted that the expression by a respondent store to an inquiring store of its view as to the credit worthiness of a person with whom the respondent has dealt could be regarded as a consumer report. But it is not suggested or found that the respondent stores gather information about persons for dissemination: nor, so far as appears, for their own purposes. This is not to say that they do not seek information from bodies which, being in that line of business, are reporting agencies. The information which is conveyed by them to others is predominantly derived from their own experience of dealings with the person concerned. It is the fact that they have so dealt which provokes the inquiry from the other store. (at p456)

9. A "reporting agency" is relevantly defined as "a person or body of persons that, for fee or reward, furnishes consumer reports to traders". The respondent stores are undoubtedly "traders" within the meaning of Pt II, that is "any person or firm that carries on trade or commerce". Thus, if a respondent refuses a prescribed benefit to a person with whom it has already dealt and of whose credit worthiness it has a view based on its own experience with that person, the obligation of s. 7 could scarce fall upon that respondent. It could not be said to have had a report made by a reporting agency. The distinction between trader and reporting agency is well indicated by the example. (at p456)

10. When the obligations placed upon the reporting agency by the provisions of Pt II are considered, it seems to me that the import of the words "for fee or reward" in the definition of a reporting agency is that the furnishing of consumer reports to traders is in itself an operation in a business of furnishing such reports. So regarded, the obligations of Pt II are operable without difficulty. (at p456)

11. The definition itself carries the implication of a repetitive operation and, I think, a contrast between the reporting agency and the trader. Of course, the definition of "trader" is in terms wide enough to cover a person carrying on a reporting agency but so to include such persons sorts ill, in my opinion, with the definition of a reporting agency. (at p456)

12. No doubt the giving of consumer information to a co-operating store can be seen as part of the store's business in the sense that there is a business reason for imparting the information and the hope of a business advantage to be derived by the reciprocation of the co-operating store. But that situation is in high contrast to the conduct of the business of furnishing consumer reports. The use in the definition of the expression "for fee or reward" is not apt, in my opinion, to cover two different concepts of "reporting agencies", that is to say, one that furnishes consumer reports for a fee and another that furnishes them for reward. The use of the expression, it seems to me, is designed to cover the occasions when some remuneration not consisting only of a money sum is obtained by the person providing the consumer report in return for the service of doing so. (at p456)

13. In other contexts, something done for A in the expectation of an advantage furnished by B in relation to what is done for A, may be said to have been done for reward. But, in the context of the Fair Credit Reports Act, the fee must either be paid by the recipient of the consumer report or by some other person with the concurrence, express or implied, of that recipient. "Reward" as opposed to "fee" indicates a recompense not consisting in a money sum. But the basic requirement, that it be recompense for what is provided, remains. A general business advantage hoped for or expected because of the provision of the information ought not, in my opinion, to be regarded in the context of this Act and its subject matter as a reward for providing the information. These considerations support my conclusion otherwise derived from a consideration of the statute as a whole, that it is to those who conduct the business of furnishing consumer reports that the Fair Credit Reports Act is referring and on whom it places the particular obligations. (at p457)

14. An endeavour was made in this case to introduce into evidence the record of Parliament Debates on the terms of the Bill which emerged as the Fair Credit Reports Act. It was submitted that these could be considered in the construction of that Act. Two separate matters were involved in the tender: first, the course of amendment of the Bill in its path to becoming an Act and, second, statements of Ministerial intention in the course of the debate on the bill. (at p457)

15. In my opinion, the stream of authority is strongly against the reception of evidence in respect of either matter. The citation of relevant authority is found in the judgments of the Full Court of the Supreme Court and in the reasons for judgment of other of my brothers participating in this case. I therefore join in the rejection of the proposed evidence. (at p457)

16. But, in making the distinction between the two matters involved, I would wish to say that whilst I am quite clear that no relevant assistance can be obtained from speeches in the legislature, even from the second reading speech of the Minister introducing the Bill, I can see the possibility of relevant profit in knowing the changes which take place in the Bill between its introduction and its passage. These, unlike the speeches, result from action of the legislature itself. The changes may well be classified as travaux preparatoires to which heed is paid in other systems of law. However, authorities of long standing would not allow of this possible advantage being taken. (at p457)

17. But some assistance in construction may be obtained from the undoubted fact that the long standing practice of the respondents in exchanging information must have been well known to the legislature when enacting the Fair Credit Reports Act. I find it difficult to accept that, with that knowledge, the legislature intended to create the respondent stores as reporting agencies by the use of the definition in the Fair Credit Reports Act. Doubtless a legislature may quite reasonably wish to impose on such entities as the respondent stores the obligations of reporting agencies. But, if that were the intention, some much more specific words would need to be used than those found in the statutory definition of a reporting agency. (at p458)

18. After much consideration, I have come to the conclusion that, on the findings of fact made by the Tribunal, the respondents are not reporting agencies within the meaning and operation of Pt II of the Fair Credit Reports Act. I do not do so because the hope or expectation of reciprocal action by the inquiring store could not be held to be a commercial advantage. I do so because, in my opinion, the Act refers in its definition of "reporting agency", read with the obligations imposed by Pt II, to persons whose business it is to supply consumer reports for commercial gain in the form of a fee or of some non-pecuniary advantage specifically related to the furnishing of a consumer report by way of remuneration provided by the recipient of the report or with its concurrence by some other person or body. I would, therefore, dismiss the appeal from the decision of the Supreme Court. (at p458)

19. I now consider whether the Credit Tribunal has power by the incorporation of a condition in the authorization under the Consumer Credit Act to add to the category of those who, under the Fair Credit Reports Act, are reporting agencies. Upon my own view of the Consumer Credit Act, it does not make the respondents reporting agencies. The Consumer Credit Act is not concerned with reporting agencies. It is concerned with those who provide credit. The two Acts are not, in my opinion, in respect of reporting agencies in any proper sense in pari materia, though both relate to consumer rights. If the legislature of South Australia has decided who shall be subject to the obligations of a reporting agency, it is not for the Tribunal, however wide its discretion in imposing conditions on a licence of a credit provider, to place those obligations on persons not selected by the legislature. The conditions which fall within the Tribunal's discretion are circumscribed by the subject matter and purpose of the Consumer Credit Act. The Tribunal is not at large. The conditions it is authorized to impose must not only not conflict with the provisions of that Act: they must be such as might reasonably be thought appropriate to the control of the giving of credit and of the terms on which it may be given. To attempt to impose on the licensee the obligations of a reporting agency is, in my opinion, to travel beyond the limits of the power to impose conditions. (at p459)

20. I would dismiss this appeal also. (at p459)

GIBBS J. These two appeals from the Full Court of the Supreme Court of South Australia (1975) 12 SASR 214 have been heard together. The first appeal is brought from a judgment setting aside a decision of the Credit Tribunal ("the Tribunal") constituted under the Consumer Credit Act, 1972-1973 (S.A.) whereby the Tribunal declared that the respondents, companies which conduct retail stores in South Australia, were reporting agencies within the meaning of the Fair Credit Reports Act, 1974-1975 (S.A.). The facts of the case may be stated sufficiently for present purposes as follows. The respondents, in the course of their business of storekeepers, extend credit to their customers. The total volume of credit provided in this way is large. Although the respondents are in active competition with each other, they exchange credit information on a reciprocal basis. This is done in various ways. First, and most important, is the exchange of information by telephone. When a customer who seeks credit at one store already has a credit account with another, an employee of the former store will telephone the latter, and request, and be given orally, a report on the way in which the customer has conducted his account. Some respondents get very many inquiries of this kind. Also, written reports about dishonest staff members, dishonest customers and customers whose accounts have been referred for collection to solicitors or debt collecting agencies are sent by stores to the Retail Traders Association, which collates this information and distributes it in the form of lists. The respondents co-operate in this way because they find that it is to their commercial advantage to do so. If a store will not supply information it will not be given information by others. The telephone reports are a prompt and comparatively reliable means of obtaining the information necessary to decide whether credit should be extended to a new customer, and if so to what extent, and are of real benefit to the respondents in the conduct of their retail businesses. Another advantage is that a store which participates in the arrangement avoids the necessity to pay the fees that would be charged by a credit bureau. The receipt of the lists from the Association is also of commercial value. (at p459)

2. The object of the Fair Credit Reports Act, broadly expressed, is to ensure that consumers who wish to obtain credit are not damaged by erroneous reports, and to provide a means whereby errors may be detected and corrected. The Act is a remedial one. It was a defect in the law that a person seeking credit might be denied it (and not only by one trader but by many) because of a false or inaccurate report which he had no opportunity to correct, and of whose very existence he might be unaware. Under modern conditions of trade this could lead to serious injustice - often to people least able to avert or remedy it. The Act should, if possible, be given a beneficial construction - one that will carry out as fully as possible what appears to have been the object of the legislature. But that does not mean that the words of the Act must be strained to bring within them cases which the legislature appears to have intended to have excluded. (at p460)

3. By s. 4 of the Fair Credit Reports Act, "reporting agency" means:
"(a) A person or body of persons that, for fee or reward, furnishes consumer reports to traders;
or (b) a person or body of persons - (i) that carries on the business of banking; or (ii) whose only or principal business is the lending of money, declared by regulation to be a reporting agency for the purposes of this Act." The question to be decided depends on the meaning of this definition. Although we are not concerned to consider in detail the nature of the scheme which the Act provides to achieve its object, it is necessary to refer briefly to some of its provisions which may throw some light on the meaning of the definition. By s. 6 a reporting agency is obliged to take certain steps apparently designed to ensure that reports made are fair and accurate. For example, it must "adopt all procedures reasonably practicable for ensuring accuracy and fairness in the contents of its consumer reports": s. 6 (1). Section 7 requires a trader who has, e.g., denied credit to a person, and who has in his possession a consumer report made by a reporting agency in relation to that person to notify that person, on request, of the fact that he is in possession of the report and of the name and address of the reporting agency which provided it. Section 8 requires a reporting agency, on application, to disclose all information in its files relating to the person who makes the application, the names and addresses of any persons to whom a consumer report relating to that person has been furnished within the preceding year, and copies, or particulars of the contents of, the report. Section 9 then provides a procedure for the correction of errors in information compiled by a reporting agency. By s. 10 any communication of credit information to a reporting agency, or by a reporting agency to a trader, is protected by qualified privilege. Section 11 gives the Commissioner for Prices and Consumer Affairs power to inspect the records of a reporting agency or trader. (at p461)

4. It was submitted on behalf of the respondents that, for the purpose of ascertaining the intention of the legislature of South Australia, it was permissible for the Tribunal to look at the changes made to the Bill which became the Fair Credit Reports Act and the report of the debates in both chambers of that Legislature when the Bill was being debated. It is established by many decisions of the highest authority that material of that kind may not be used as an aid to the construction of a statute. This rule is neither irrational nor outmoded. It is based upon sound practical reasons, some of which are stated in the judgment of Latham C.J. in South Australia v. The Commonwealth (1942) 65 CLR 373, at p 410 and in the speech of Lord Reid in Beswick v. Beswick (1968) AC 58, at p 74 . Conflicting opinions as to the meaning or effect of a Bill may be expressed in the course of debate - perhaps sometimes even disingenuously - and it will often be impossible to say that any particular view is more authoritative than another. The debates in parliament would often introduce a new source of argument and confusion, rather than provide a guide to the construction of a statute. The need to have regard to the parliamentary debates for the purpose of construing a statute would render the law less certain, and the burden of having this additional material available for consideration, and of examining it, in many cases for no worthwhile result, would tend to aggravate the delay and increase the cost of litigation. A stronger case might perhaps be made out for permitting consideration to be given to the "preparatory works" - particularly the original Bill and the amendments to it - but that too would be "open to abuse and waste": Ealing London Borough Council v. Race Relations Board (1972) AC 342, at p 361 . However, the existing rules are well settled, and if some modification to them is desirable - a question on which opinions may differ - that is a matter for the legislatures concerned. We were asked to reconsider the authorities, but it would not be a proper exercise of our judicial function to alter rules of law that are so firmly established. (at p462)

5. In support of the submission that it was open to the Tribunal to refer to the Bills and the debates as an aid to the construction of the Fair Credit Reports Act, the respondents placed some reliance on s. 21 (5) of the Consumer Credit Act. That sub-section provides as follows:

"In any proceedings the Tribunal shall act accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and, subject to subsection (6) of this section, it shall not be bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit."

If that sub-section allowed the Tribunal, when construing a statute, to take into account material inadmissible in an ordinary court, and thus to reach a construction different from that at which the ordinary courts would be bound to arrive, it would provide a prescription for chaos. But it has no such effect. It relaxes the rules of evidence which would otherwise govern the Tribunal in the exercise of its functions, but it does not enable the Tribunal to give a statute any meaning other than that which a court of law would place upon it. The Tribunal rightly refused to consider this material. (at p462)

6. It is necessary then to return to the words of the Fair Credit Reports Act to determine the question that now falls for decision. It is not in doubt that the reports which the respondents make to each other, and to other stores, are "consumer reports" within the meaning of the Act, or that the persons to whom the reports are furnished are "traders". The sole question for decision is whether the reports are furnished "for fee or reward". (at p462)

7. The words "fee or reward" do not in my opinion form one composite phrase - they are disjunctive. "Reward" is a wider word than "fee", and is not restricted to a payment in money. Any return or recompense for a service is a reward within the ordinary meaning of the word. The use of the plural in "furnishes", "reports" and "traders" clearly indicates that to come within the definition the person concerned must furnish the reports regularly, habitually or systematically. There can be no doubt that to fall within the definition the reports must be furnished pursuant to an arrangement of a business kind, but there is nothing to suggest that there need be a contractual arrangement. The word "for" denotes motive or purpose; a person comes within the definition only if he furnishes consumer reports to traders for the purpose, or in the expectation, of obtaining some fee or reward. (at p463)

8. The proper inference to be drawn from the facts already stated is that each respondent provides the credit information to another store, or to the Retail Traders Association, for the purpose of getting information in return. Putting aside personal considerations which might exist in a particular case, and even assuming that some storekeepers might be actuated by pure altruism, it is impossible to explain in any other way the practice whereby the respondents systematically supply useful information of this kind to their competitors. The reports are furnished pursuant to a reciprocal business arrangement. In return for participating in the arrangement, each respondent derives a commercial benefit; it obtains an assurance, of practical if not legal effect, that it will receive service similar to that which it gives. It is true that the commercial benefit which a respondent derives from its participation in the arrangement is not received in return for furnishing any particular report. Further, the benefit received cannot be precisely quantified. Nevertheless, the respondents furnish consumer reports for the purpose of receiving, and they do in fact receive, a commercial benefit of the kind which I have described. That commercial benefit is the return or recompense which the respondents expect to receive and do receive for furnishing the reports; it is a reward in the ordinary sense of the word. Moreover, as I have said, the reports are furnished for the purpose or in the expectation of receiving this reward. The necessary element of motive or purpose is present. I accordingly conclude that the respondents come within the definition of "reporting agency". I recognize that the question is a very arguable one, and notwithstanding the help that I have derived from the judgments of the members of the Full Court it has caused me much difficulty. In the end, however, I have been assisted by the consideration that the statute is a remedial one, and should be construed beneficially, to come to the conclusion which I have expressed. (at p463)

9. It remains to notice some further arguments upon which the respondents relied. It was said that the inclusion of par. (b), in the definition of "reporting agency" was an indication that stores in the position of the respondents did not come within the words of par. (a). If par. (a) includes persons who furnish consumer reports to each other pursuant to a reciprocal arrangement, then, so it was said, it would include banks and finance companies, so it was said, it would include banks and finance companies, and the words of par. (b) would be surplusage. With respect, this is not correct. Paragraph (b) is in some respects wider, and in others narrower, than par. (a). Its words include banks and finance companies even if they do not furnish consumer reports for fee or reward. On the other hand banks and finance companies are not included unless declared by regulation. The words of par. (b) therefore do not provide a clear guide to the meaning of par. (a). (at p464)

10. Then it was said that various sections of the Fair Credit Reports Act, some of which I have mentioned, use the phrase "reporting agency" in contrast to "trader", so that a trader is not a reporting agency. Again I cannot accept this argument. Quite clearly a bank may be a reporting agency, and yet it will be a trader as defined in the Act. For the purposes of the Act a person may be a trader while acting in one capacity and a reporting agency while acting in another. (at p464)

11. It was also submitted that the substantive sections already mentioned provide a context in which the words "reporting agency" can be seen to be intended not to apply to a storekeeper. It may be conceded that the Act will have an application to some reporting agencies which is different in a practical sense from the application which it has to others. For example, the procedures that it is reasonably practicable for a storekeeper to take to ensure accuracy and fairness in its consumer reports may be very different from those which it would be reasonably practicable for a credit bureau to adopt. However, the substantive provisions of the Act do not, in my opinion, indicate that it was not intended that the definition of "reporting agencies" should apply to storekeepers. (at p464)

12. For these reasons I consider that it was open to the Tribunal to find that the respondents are "reporting agencies" within the meaning of the Fair Credit Reports Act, and that the first appeal should be allowed. (at p464)

13. The second appeal involves the power of the Tribunal to impose conditions under s. 6 (6) of the Consumer Credit Act. By s. 5 of that Act the term "credit provider" is defined to include a person whose business is, or includes, the provision of credit. The respondents are credit providers within this definition. The Act provides that no person shall carry on business as a credit provider unless he is duly licensed as such: s. 28 (1). It contains detailed provisions regulating credit transactions and charges for the procurement of credit. However sub-ss. 5 and 6 of s. 6 of the Act provide as follows:

"5. This Act does not apply in respect of any revolving charge account maintained on behalf of a consumer in accordance with the conditions prescribed by the Tribunal by a person authorized by the Tribunal to provide credit by means of such accounts. 6. The Tribunal may, on the application of any person, authorize him to provide credit by means of revolving charge accounts, and such an authorization may be granted upon conditions - (a) limiting the frequency with which credit charges may be made on any such account; (b) limiting the amount of the credit charges that may be made on any such account, and such other conditions as the Tribunal thinks fit."

The expression "revolving charge account" is defined in s. 5, but it is unnecessary to discuss the meaning of that expression, because it is common ground that the respondents provide credit by means of revolving charge accounts. The respondents hold authorities issued under s. 6 (6) authorizing them to do so. Notice was given to each respondent by the Tribunal that pursuant to reg. 8 (3) of the Regulations made under the Consumer Credit Act, the Tribunal of its own motion proposed to consider a variation of the conditions of authorization by adding the following new condition or a condition to a substantially similar effect:

"The company shall, in relation to its revolving charge accounts, comply with the provisions of the Fair Credit Reports Act, 1974-75 and the regulations made thereunder as if it were a reporting agency for the purposes of that Act."

On the hearing of the proceedings instituted by this notice the chairman of the Tribunal ruled that "the Tribunal has jurisdiction, by virtue of the powers contained in s. 6 (6) of the Consumer Credit Act . . ., to make a condition if the Tribunal deems fit, in relation to the circumstances under which stores may store consumer information and furnish consumer reports, including requirements as to disclosure of such information and its source upon written request by consumers and correction of incorrect or incomplete material upon such request". (at p465)

14. The question for decision is whether the Tribunal had power to impose the condition stated in the notice or that described in the chairman's ruling. In my opinion this question still falls for decision even if it is held that the respondents are reporting agencies within the Fair Credit Reports Act. If the Tribunal validly attached to the authorization a condition that the respondents should comply with the Fair Credit Reports Act, the legal position of the respondents would be affected even if they were already bound by that Act, because the consequences of a breach of a condition of the authorization would be different from and additional to those of a failure to observe the requirements of the Fair Credit Reports Act. Further, if the chairman's ruling is correct, the Tribunal may impose upon the respondents conditions more onerous than those for which the Fair Credit Reports Act provides. So on any view it is necessary to decide whether either of the conditions suggested would be within power. (at p466)

15. The Consumer Credit Act, like the Fair Credit Reports Act, was passed for the protection of consumers. But there the resemblance ceases. I have already indicated that the latter Act is designed to protect consumers from damage by reports which may reflect adversely, but erroneously, upon their reliability. The Consumer Credit Act on the other hand is designed to protect consumers by endeavouring to ensure that credit is granted by suitable persons and upon fair terms and conditions. It deals with the provision of credit and not with the collection and dissemination of information relating to persons seeking credit. The discretion conferred by the concluding words of s. 6 (6) is no doubt a wide one. However it is not an arbitrary discretion. The effect of the relevant words of s. 6 (6) was correctly stated by Bray C.J. in In re an Appeal from the Credit Tribunal by John Martin &Co. Ltd. (1974) 8 SASR 237, at pp 242-243 as follows:
"The last five words confer a discretion. That discretion, of course, like all other discretions, is not an arbitrary one. It must be exercised in accordance with well known principles. It must be exercised in good faith for the purpose for which it was granted and not by reference to extraneous considerations, and it must not be exercised unreasonably or capriciously. I think citation of authority for these propositions is almost superfluous. However, I refer to Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 ; Fawcett Properties Ltd. v. Buckingham County Council (1961) AC 636 ; Chertsey Urban District Council v. Mixnam's Properties Ltd. (1965) AC 735 ." (at p466)

16. The conditions referred to in the notice and in the chairman's ruling have nothing to do with the manner in which, or the terms on which, credit is provided by means of revolving charge accounts. The suggested conditions are not limited to the storage of information and the furnishing of consumer reports for the purposes of considering whether credit should be provided by means of revolving charge accounts. They would be wide enough to apply to the storage of information by a respondent for the purpose of deciding whether a customer should be allowed to open, or to continue, an ordinary monthly account which was not a revolving charge account. They would apply to a report furnished by a respondent to a trader who did not provide any credit by means of revolving charge accounts. And even in their application to revolving charge accounts they do not deal with the provision of credit by that means, but with the different question of the manner in which information is collected and disseminated. Conditions of the kind specified in the notice, or of the kind referred to in the chairman's ruling, would be extraneous to the purposes of the Consumer Credit Act. Such conditions would be made, not for the purposes of the Consumer Credit Act, but in an endeavour to widen the scope and application of the Fair Credit Reports Act. Section 6 (6) does not empower the Tribunal to improve conditions of that kind. For these reasons the orders of prohibition and certiorari were rightly made. (at p467)

17. Once this conclusion is reached it becomes unnecessary to consider a further question which was argued, namely whether reg. 8 (3) of the regulations under the Consumer Credit Act, which enables the Tribunal to institute proceedings of its own motion, was validly made. I accordingly express no opinion on that question. (at p467)

18. I would allow the first appeal and dismiss the second appeal. (at p467)

STEPHEN J. The facts and circumstances of these appeals and the terms of the relevant legislation which they involve appear in other reasons for judgment of the Court. The question critical to both appeals is whether or not each of a group of competing department stores in the city of Adelaide falls within the definition of "reporting agency" in s. 4 of the Fair Credit Reports Act, 1974-1975 (S.A.). If they do the appeal which turns directly upon this question must be allowed and the outcome of the other appeal, which concerns the extent of the power to impose conditions, which s. 6 (6) of the Consumer Credit Act, 1972-1973 (S.A.) confers on the Credit Tribunal constituted under that Act, then becomes unnecessary to determine for the reasons stated in the judgment of my brother Mason. (at p467)

2. What I have described as the critical question is wholly one of statutory interpretation, turning upon the meaning to be given to that part of the definition of "reporting agency" which refers to a person or body of persons that, for fee or reward, furnishes to traders communications of credit information or personal information, called in the definition "consumer reports". The matter of difficulty, on which the Full Court divided, concerns the meaning of "for fee or reward". The department stores here in question are parties to a somewhat loose arrangement, no doubt satisfactory enough for their purposes, whereby they exchange information concerning the credit histories of their customers, each thus being able to draw on the others' past experience in deciding whether or not to extend credit to a new customer. No question of the payment of any "fee" is involved; each participating store is apparently willing to supply to others on request information it has gathered because it anticipates that in return it will gain a substantial advantage by being able to obtain from other participating stores information as to their own past credit experience with the intending customer who seeks credit. (at p468)

3. The question is, then, whether the situation thus disclosed is one which answers the description of a "reporting agency", as defined; in particular whether in these circumstances participating stores which furnish credit information do so "for reward". (at p468)

4. The judgments in the Full Court (1975) 12 SASR 214 are, in these appeals, of peculiar assistance in their disposal; upon the quite narrow point on which the appeal must turn there is, I think, with respect, nothing, either by way of authority or of concept, that has gone unnoticed in those judgments. The meaning to be given to "for reward" in its present statutory context is very much a question on which different minds may differ, as they did in the Full Court. (at p468)

5. For my part I find myself of the view expressed in the judgment of Bray C.J. Giving full weight to the need to interpret "reward" in the light not only of the definition in which it occurs but also of that broader context afforded by the legislation as a whole, I conclude that the commercial advantage which impels each participating store to join in supplying to its competitors that flow of information which the Act describes as "consumer reports" is a reward for the purposes of the definition of "reporting agency". I see it as no objection that the monetary value of the commercial advantage which participating stores hope to, and do in fact, derive is incapable of precise quantification; nor does the word "reward", according to ordinary usage, necessarily involve the recipient in having any legally enforceable right to receive the advantage which it describes; still less need that advantage take the form of cash or its immediate equivalent in order to be a "reward". An act may, I think, be performed "for reward" if there exists an expectation that it will be productive of some sensible advantage; that advantage need not come directly from the person deriving the immediate benefit of the act performed so long as it is the anticipated outcome of the performing of that act. (at p469)

6. The context in which "for reward" occurs strongly suggests that the reward must be part of some commercial transaction and must involve what Bray C.J. describes as some "commercially valuable benefit or advantage", a requirement which is clearly satisfied in the present case. In a sense an act done " for reward" is the antithesis of the making of a gift, which Owen J. spoke of in Federal Commissioner of Taxation v. McPhail (1968) 117 CLR 111, at pp 115-116 , as occurring when in return nothing "of material advantage to the disponor" is received. When, on the contrary, something of such advantage is contemplated as being received in return the act done readily enough answers the description of being done for reward. (at p469)

7. The consumer reports which the present participating stores supply to one another are supplied in the knowledge, and for the purpose of ensuring, that the recipients will, as and when asked to do so, reciprocate in the supply of similar reports. These reports being of considerable commercial value to the stores which receive them, the term "for reward" seems a description apt to describe the circumstances in which a store furnishes consumer reports to other participating stores. (at p469)

8. That the principal business activity of these stores is something quite other than the supply of consumer reports is not, I think, to the point. The Act nowhere limits the scope of its operation to those whose sole or principal business is that of furnishing consumer reports; to do so might seriously restrict the breadth of effective operation of the legislation, as is shown by the evidence in the present case. It was also submitted that some significance lay in the contrast drawn by the Act between the supplier and the recipient of consumer reports, the former being the "reporting agency" and the latter a "trader". The contrast exists, I think, only in the particular roles for the time being played by the parties with respect to a particular consumer report; these roles might very well be reversed in the case of some other consumer report and the provisions of the Act would nevertheless operate happily enough in each of these situations. The critical feature of the statutory scheme is that a consumer who finds himself disadvantaged in his dealings with a trader may require the trader to disclose any recent report which it may have concerning him and to identify the reporting agency which supplied it (s.7). The latter must then disclose to the consumer its relevant records (s.8) and the consumer is given an opportunity of demonstrating that they are erroneous in some respect; provision is made for appeal to the Credit Tribunal if the consumer cannot otherwise obtain satisfaction (s. 9). In the working out of this scheme the contrasting roles of reporting agency and trader are clear, but they are no more than the result of the particular transaction which is in question; a reporting agency is no doubt itself a "trader" as defined and there appears to be no reason why one who usually plays the role of "trader" may not on occasion assume that of reporting agency. (at p470)

9. It was urged upon us in argument that recourse should be had to parliamentary debates and to the amendments made to this legislation while still in Bill form with a view to better understanding its meaning. In the Full Court both the Chief Justice and Jacobs J. rejected a like plea and I am content to adopt the views which they respectively expressed. (at p470)

10. For these reasons, more fully expressed in the reasons for judgment of Bray C.J., I would allow the first appeal and would, for the reasons stated by Mason J., dismiss the second appeal. (at p470)

MASON J. According to its long title, the Fair Credit Reports Act, 1974-1975 (S.A.) is "An Act to confer on consumers certain rights in relation to accumulated information that might be used to their detriment; and for other purposes." It came into operation on 17th April 1975. Part II of the Act contains a series of provisions imposing obligations on reporting agencies. It requires reporting agencies to adopt all procedures reasonably practicable for ensuring accuracy and fairness in the contents of its consumer reports (s. 6 (1)) and it imposes restrictions on material that can be included in such reports (s. 6 (2) and (3)). Section 7 imposes an obligation upon a trader to inform consumers of any use made by him of information which is adverse to the consumer upon request being made by the person to whom the report relates. Section 8 imposes a duty on the reporting agency, once written application is made by that person, to disclose information in any consumer report within its possession. Section 9 confers a right on a person who disputes the accuracy or completeness of information compiled by a reporting agency in relation to himself to object to and secure the correction of any inaccuracy or incompleteness in that informa - tion. (at p470)

2. The expression "consumer report" is defined by s. 4 of the Act as meaning "a communication of credit information or personal information (or both)". The expression "reporting agency" is defined by the same section to mean:
"(a) a person or body of persons that, for fee or reward, furnishes consumer reports to traders;
or (b) a person or body of persons - (i) that carries on the business of banking; or (ii) whose only or principal business is the lending of money, declared by regulation to be a reporting agency for the purposes of this Act." The word "trader" is defined so as to mean:

"any person or firm that - (a) carries on trade or commerce; or (b) lets any land or premises." (at p471)

3. Section 13 confers power on the Credit Tribunal (hereinafter referred to as "the Tribunal") established under the Consumer Credit Act, 1972-1973 (S.A.) to enforce compliance with the provisions of the Act as they relate to reporting agencies. (at p471)

4. The principal issue which has arisen in the first of the two appeals now before the Court is whether the six respondents, which are department stores carrying on business in South Australia, are reporting agencies within the meaning of the statutory definition, having regard to the facts which have been found as to the manner in which they carry on business, and the answer to that question depends on whether they can be said to furnish consumer reports to traders "for reward". (at p471)

5. The second appeal involves a consideration of the provisions of the Consumer Credit Act. Section 28 of that Act prohibits a person from carrying on business as a credit provider unless he is licensed under that Act. However, s. 6 (5) of that Act provides that the Act "does not apply in respect of any revolving charge account maintained on behalf of a consumer in accordance with the conditions prescribed by the Tribunal by a person authorized by the Tribunal to provide credit by means of such accounts". Section 6 (6) goes on to provide:

"The Tribunal may, on the application of any person, authorize him to provide credit by means of revolving charge accounts, and such an authorization may be granted upon conditions - (a) limiting the frequency with which credit charges may be made on any such account; (b) limiting the amount of the credit charges that may be made on any such account, and such other conditions as the Tribunal thinks fit."

The expression "revolving charge account" is defined by s. 5 of the Consumer Credit Act to mean:

"an account - (a) to which an amount or amounts due under a consumer contract or consumer contracts are debited; and (b) upon which a credit charge is made from time to time on the outstanding balance of the account."

The expression "consumer contract" is defined in terms of the definition contained in s. 5 of the Consumer Transactions Act, 1972-1973 (S.A.) where the expression is defined as meaning:

"a contract or agreement - (a) under which a person (other than a body corporate) - (i) purchases any goods or contracts for the performance of any services; (ii) takes any goods on hire (whether or not the contract purports to confer any right or option upon the consumer to purchase the goods); or (iii) acquires by any other means the use or benefit of any goods or services; and (b) under which the consideration to be paid or provided by or on behalf of the consumer in money or money's worth (excluding any credit charge) does not exceed ten thousand dollars; . . ."

The statutory definition then sets forth certain exclusions, but it is not material to set them out as they have no application to the present case. (at p472)

6. The issue in the second appeal relates to the ambit of the power to impose conditions conferred by s. 6 (6) of the Consumer Credit Act. In a sense it is a contingent issue, because there will be no occasion to resolve it, in the event that it is held that the six respondents are reporting agencies within the meaning of the statutory definition contained in the Fair Credit Reports Act, as the consequence of such a holding is that they become subject to the obligations imposed upon reporting agencies by Pt II of that Act. As will appear from the facts shortly to be recounted, the Tribunal sought to impose on the six respondents under s. 6 (6) of the Consumer Credit Act conditions which would subject them to obligations similar to those imposed upon reporting agencies by Pt II of the Fair Credit Reports Act. In seeking to exercise this power the Tribunal was proceeding on the alternative footing that the six respondents were not subject to the obligations imposed by the Fair Credit Reports Act. (at p472)

7. The proceedings out of which these appeals arise commenced when the Tribunal of its own motion notified the six respondents that it proposed of its own motion to consider a variation in the conditions of authorization under s. 6 (6) of the Consumer Credit Act by the addition of a condition that each respondent should, in relation to its revolving charge accounts, comply with the provisions of the Fair Credit Reports Act and regulations thereunder as if it were a reporting agency. In response to this motion the six respondents called evidence before the Tribunal. Before the proceedings were completed, the South Australian Commissioner for Prices and Consumer Affairs, the appellant in the first appeal (hereinafter referred to as "the Commissioner"), applied to the Tribunal for an order that the six respondents be directed to comply with the Fair Credit Reports Act, alleging that each respondent engaged in the reciprocal exchange of consumer reports with other traders in such a manner as to be furnishing consumer reports to such traders "for reward". It was then agreed that the evidence already given in the proceedings instituted on the Tribunal's own motion should be treated as evidence in the proceedings instituted by the Commissioner and that the two proceedings should be heard together. (at p473)

8. The Tribunal gave judgment on the Commissioner's application, making certain findings of fact, and the chairman of the Tribunal then announced his decision on the ultimate question of law, a procedure which conforms with the provisions of s. 19 of the Consumer Credit Act. The Tribunal found that the respondents were reporting agencies. On the same day, the Tribunal ruled in relation to the proceedings instituted on its own motion that it had jurisdiction by virtue of the powers contained in s. 6 (6) to impose conditions of the kind earlier proposed. The respondents appealed to the Full Court of the Supreme Court from the first order and concurrently obtained an order nisi for prohibition in relation to the second order. By majority, the Full Court (Zelling and Jacobs JJ., Bray C.J. dissenting) allowed the appeal and made the order nisi for prohibition absolute, holding that the six respondents were not reporting agencies within the meaning of the statutory definition and that the power conferred by s. 6 (6) of the Consumer Credit Act did not extend to the imposition of conditions of the kind proposed. The Full Court, having decided the appeal adversely to the Commissioner, was obliged to consider the question which arose in the prohibition proceedings, that which related to s. 6 (6). (at p473)

9. Before considering the two questions of law it is necessary for me to set out the relevant findings of fact. They are conveniently set out in the reasons for judgment of the Chief Justice in the proceedings which went on appeal to the Full Court and from which the first appeal to us arises. I restate the facts as they were related by the Chief Justice. The respondents have for several decades co-operated with each other in exchanging consumer information on a reciprocal basis. The exchange takes four forms. The most important is the exchange of oral information by telephone, given by the staff of one store in response to an inquiry made by the staff of another. What frequently happens is that a prospective customer asks for credit at store A and states that he has an account with store B and that the staff of store A then make a telephone inquiry from the staff of store B. The other three forms relate to the furnishing of information to the Retail Traders Association about dishonest staff members, dishonest customers and slow-paying customers. The Association collates the reports, classifies the persons reported on into categories and distributes the lists to participating members. Some stores participate in all these activities, some in some only. Those who do not furnish information to the Association do not get the Association's lists. (at p474)

10. The Tribunal catalogues the advantages of participation and the disadvantages of non-participation. Each store has a list of companies to which information is supplied by telephone. If an inquiry is received from a company not on the list, the inquirer will be asked to write for the information, though occasional requests from non-reciprocating companies are answered immediately to save time. Finance companies who refuse to furnish consumer reports to stores are refused consumer information from them. New traders or hitherto non-reciprocating traders will be invited to reciprocate if they make inquiries. If they are unco-operative they will not receive further reports. (at p474)

11. The participating stores get consumer information of a highly relevant kind quickly and easily while the prospective customer is still in the office ready, and in most cases eager, to buy on credit. The telephone reports are more valuable than reports from banks, finance companies and credit bureaux. The Tribunal said:

"In spite of the fact that furnishing the information will almost inevitably lead to the consumer opening another account with the requesting competitor, and thus reduce the consumer's ability to spend at the furnishing store, the information is furnished nevertheless, presumably to the furnishing store's net business advantage."

Mr. Matheson for the respondents attacked this pronouncement, but I agree with the Chief Justice that the finding is justified. By participating a store avoids "the cost of maintaining a more comprehensive internal credit information centre, thus saving staff and other expenses". It also avoids the fee charged by a professional credit bureau or by banks. A credit bureau, the Tribunal found, charged one of the stores in 1973-1974 a large sum, called a base fee, for a fixed number of reports and 32 cents for each report in excess of that number. Although the actual value of a telephone report to a store is not exactly measurable, the Tribunal found that each report is "considerably more valuable than 32 cents", no doubt because information, which might otherwise have to be obtained from a credit bureau for that sum, is obtained more quickly and in a more valuable form. (at p475)

12. The Tribunal went on to make the following finding:

"The value of each telephone report (and of the telephone reports collectively) is a real, direct, tangible commercial benefit or advantage enjoyed by each recipient store."

Access to the lists of the Association, it was found, is also of commercial advantage, admittedly difficult to quantify. (at p475)

13. The Tribunal found that there was no binding contract between the participants in the exchange of information and no intention to create contractual rights. The only sanction against non-participation, it was found, is fear of losing the commercial benefits and advantages flowing from the future receipt of reports. There is an ebb and flow of commercial benefit or advantage to each store. One store furnishes more reports to other stores than it receives from them. There is no substantial practice of supplying information gratuitously, that is, without any reciprocation or expectation of reciprocation. (at p475)

14. The Commissioner concedes that on the findings of fact which have been made the respondents do not furnish consumer reports for a fee; his case is that they furnish the reports "for reward". He submits that a recompense which is not a payment may none the less constitute a reward, a submission which in my opinion is well founded (see Albert v. Motor Insurers' Bureau (1972) AC 301 ). He also contends, and in my opinion he is again correct in so contending, that a recompense which is not measurable or quantifiable may constitute a reward (see Reg. v. Auchinleck (1891) 28 LR Ir 404, at p 425 ). He then relies on the fact that each respondent derives the benefit of receiving reports relating to its customers from other department stores and asserts that this constitutes the appropriate reward. Finally he says that when a respondent furnishes a report to another department store it does so in the expectation that it will receive reports relating to its customers, so that in the end result it may be said that in furnishing a report a respondent does so "for reward", notwithstanding the absence of any legal right or power in it to compel the provision of such a reciprocal report. (at p476)

15. I agree that the expected receipt of reciprocal reports relating to its customers by a respondent who furnishes a report enables it to be said that the report is furnished "for reward". On the findings of fact and the evidence, a report is furnished because there is in existence a common and reciprocal practice relating to the giving of reports with the consequence that a store furnishing a report confidently believes that it will receive reports relating to its customers. That is the reason or motive for furnishing a report. But for the expectation that it would receive a valuable benefit in the form of reciprocal reports, a department store would not provide a competitor with information about a customer. (at p476)

16. When a service is provided in the course of commercial operations or as a matter of business or commercial practice, in the expectation, reasonably based, that a benefit will be received in consequence of the provision of the service, the service is provided "for reward", even though there is no legal obligation to furnish it and no legal right to compel its provision. It was observed in Albert's Case that services may be given for reward where the provider of the service has no power to compel the giving of a reward, e.g. in England the provision of a service in the expectation that a tip will be provided (1972) AC, at pp 319, 325, 332-333; cf at p 338 . And in such a case it might be said that the expectation that a tip will be provided is not the sole or perhaps the principal reason why the service is provided. (at p476)

17. In the result, I agree with Bray C.J. that as a matter of conventional statutory interpretation the respondents are reporting agencies within the meaning of the statutory definition, and from what I have said it will be seen that I am in substantial agreement with the reasons which his Honour has given for arriving at that conclusion. (at p476)

18. Mr. Matheson sought to avoid this result by presenting a novel argument based on inferences to be drawn from the course of events in Parliament after the Fair Credit Reports Bill was introduced in the Legislative Assembly. I do not propose to review in detail the events which took place in the Parliament and which are recorded in "Hansard". To enable the argument to be understood it is sufficient to say that the statutory definition in its present form was settled upon after some disagreement took place between the two Houses. It is suggested by Mr. Matheson that recourse to "Hansard" will show that the existing form of the statutory definition was arrived at as a compromise between the two Houses and that in announcing the agreed form the Attorney-General informed the Legislative Assembly that the effect of the definition would be to exclude department stores from the provisions of the Fair Credit Reports Bill relating to reporting agencies. In support of the argument that we should look to "Hansard" for confirmation of these events and that we should draw the inference that the statutory definition is not intended by Parliament to include department stores, reference was made to recent observations by Lord Simon of Glaisdale in the House of Lords in McMillan v. Crouch (1972) 1 WLR 1102, at p 1119; (1972) 3 All ER 61, at p 76 ; Charter v. Race Relations Board (1973) AC 868, at p 900 ; and Dockers' Labour Club and Institute Ltd. v. Race Relations Board (1976) AC 285, at pp 298-300 ; see also where Lord Kilbrandon (1976) AC, at pp 300-301 expressed his agreement with Lord Simon of Glaisdale. In these cases Lord Simon of Glaisdale vigorously expressed the view that a new approach should be taken to statutory interpretation so as to avoid obvious instances of frustration of parliamentary intention, indicating that this object might be achieved if the courts were to give effect to any assurance given by a Minister to Parliament as to the meaning or effect of the Bill in the course of its parliamentary passage. However, as I read his Lordship's observations, they are directed to encouraging appropriate reform by means of incorporating in the Bill the effect of any such ministerial assurance or by some statutory alteration of the law. The remarks are not couched in terms of overruling past decisions which deny to the courts access to "Hansard" as an aid to statutory interpretation. In this respect they are of the same character as the more detailed suggestions made by Sir Garfield Barwick Q.C., M.P. (as he then was) in his paper "Divining the Legislative Intent", Australian Law Journal, vol. 35 (1961), p. 197. It should be noted that no member of the House of Lords except Lord Kilbrandon expressed his agreement with the remarks of Lord Simon of Glaisdale. (at p477)

19. We are left then with the traditional rule that the courts will not look to proceedings in Parliament or to parliamentary debates as an aid to the construction of a statute (South Australia v. The Commonwealth (1942) 65 CLR 373, at pp 409-410, 439, 460 ; Beswick v. Beswick (1968) AC 58, at pp 73-74 ). The subsequent observations of Lord Reid in Warner v. Metropolitan Police Commissioner (1969) 2 AC 256, at p 279 in which his Lordship says "The rule is firmly established that we may not look at HANSARD . . ."acknowledge the existence of the rule and, as I understand them, go on to suggest that the law might be reformed so as to provide for "an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other". (at p478)

20. The traditional rule is so firmly entrenched that the courts should not depart from it, notwithstanding that it may in isolated cases produce unintended results. It is, I think, peculiarly a matter for Parliament to decide whether there should be an alteration in the means by which the courts ascertain Parliament's legislative intention and whether the courts should, in construing a statute, have recourse to what is said in the course of parliamentary debates upon a Bill and, if so, to what extent that recourse should be had. (at p478)

21. Nor does s. 21 (5) of the Consumer Credit Act make any difference. It provides that the Tribunal "shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms" and that "it shall not be bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit". The purpose of such a provision is well known. Amongst other things it enables the Tribunal to depart from the strict rules of evidence. However, here we are concerned with a problem of statutory interpretation, not with a question of evidence. It cannot be rationally supposed that by this provision Parliament intended to authorize the Tribunal to place an interpretation upon statutes which differs from that placed upon them by the courts. (at p478)

22. It is my view, therefore, that the first appeal should succeed. The consequence is that the six respondents are reporting agencies and, as such, are subject to the obligations imposed by the Fair Credit Reports Act on those agencies. There is accordingly no point in imposing identical obligations upon them by means of conditions attached to their licences to carry on business as credit providers. Without expressing any view as to the extent of the power conferred by s. 6 (6) of the Consumer Credit Act, I would in these circumstances dismiss the second appeal. (at p478)

MURPHY J. The respondents are retail stores which exchange consumer (credit) reports on a regular co-operative basis. The appellant contends that the respondents furnish consumer reports "for reward" (see Albert v. Motor Insurers' Bureau (1972) AC 301 ; Reg. v. Auchinleck (1891) 28 LR Ir 404, at p 425 ), and therefore reporting agencies within s. 4 of the Fair Credit Reports Act, 1974-1975 (S.A.) which defines "reporting agency" as: "(a) A person or body of persons that, for fee or reward, furnishes consumer reports to traders; or (b) a person or body of persons - (i) that carries on the business of banking; or (ii) whose only or principal business is the lending of money, declared by regulation to be a reporting agency for the purposes of this Act."

The respondents argue that the meaning of "for . . . reward" is coloured by the associated words "for fee", that regular co-operative exchange of reports is not "for reward" in this context, and that the scheme of the Act suggests that the reporting agencies par. (a) refers to are professional reporting agencies who conduct the business of purchasing consumer reports. They contend that the Act is at least ambiguous on this point and that consideration of the parliamentary proceedings on the point would resolve the ambiguity. (at p479)

2. There has been much discussion of whether parliamentary or congressional history of legislation (particularly legislative debates) should be used as aids to interpretation (see Dockers' Labour Club and Institute Ltd. v. Race Relations Board (1976) AC 285 ; South Australia v. The Commonwealth (1942) 65 CLR 373 ; D. C. Pearce, Statutory Interpretation in Australia (1974); Dr. J. B. Elkind, "The House of Lords - A New Departure in Statutory Interpretation?", (1975) New Zealand Law Journal, p 234) In the United States Supreme Court legislative history has been decisive of the construction of statutory provisions in a great number of cases (see the lengthy list in Frankfurter J.'s appendix to his decision in Commissioner of Internal Revenue v. Estate of Church (1949) 335 US 632, at pp 687-689 (93 Law Ed 288, at pp 321-323) ). (at p479)

3. If a statute is unambiguous according to the ordinary rules of interpretation, recourse should not be had to parliamentary history (unless there are very exceptional circumstances). It is a wise policy to build up a set of rules of interpretation to enable those concerned with Acts to deduce the meaning fairly readily without delving into the history of the enactment. Otherwise, what is reasonably certain may become questionable. "Such aid are only admissible to solve doubt and not to create it" (Railroad Commission of Wisconsin v. Chicag, Birlington &Quincy Railroad Co. (1921) 257 US 563, at p 589 (66 Law Ed 371, at p 383) ). (at p480)

4. Where the statute is ambiguous, in my opinion, its history may be regarded, but because of the nature of the legislative process, the legislative history should be ignored unless it clearly discloses the legislators' intention. (at p480)

5. The language of this Act is ambiguous on this point; its parliamentary history may be considered. The two Houses of the South Australian Parliament disagreed on the Bill and then accepted recommendations made by a conference of representatives to solve the disagreement. In the House of Assembly, the Attorney-General, in moving that the recommendations be agreed to, stated:

"The first amendment relates to the issue that arose between this place and the other place concerning the scope of the Bill. As it left this place the Bill embraced reporting agencies, defined as agencies that furnished credit reports for fee or reward and agencies that furnished credit reports on a regular co-operative basis. The second part of that definition was taken out by the other place, and the difference between the two Chambers was the question whether the legislation should apply only to professional reporting agencies or whether it should apply generally to organisations that exchange credit reports on a regular co-operative basis. The compromise arrived at was that the Bill should apply to the professional reporting agencies and also to banks and finance companies. The machinery devised for that purpose is to include in the definition the following: a person or body of persons (i) that carries on the business of banking; or (ii) whose only or principal business is the lending of money, declared by regulation to be a reporting agency for the purposes of this Act: So, the companies to which the Act will apply, if they are banks or finance companies, will be set out by name in a regulation. I am deeply disappointed with this result. I believe it has restricted the usefulness of the legislation considerably, but I am faced with the situation that it is the most the other place will accept and at the moment we have no law regulating these matters, so it is far better to have some satisfactory law, albeit limited in scope, applying to professional reporting agencies, banks and finance companies than to have nothing at all. For that reason I commend the recommendation of the conference to the Committee." ("Hansard", p. 2725).

This statement bears directly on the proposed construction of the Act and supports the respondent's construction. It was confirmed by the statements of other members. It is clear that the Bill was passed on the basis that it did not include in the category of reporting agencies organizations such as the respondents which exchange consumer reports on a regular co-operative basis. Where an Act is ambiguous, the court should recognize and give effect to such an agreement and understanding between the two Houses. Taking this into consideration in this case, the ambiguity is resolved completely (see the observations of Lord Reid in Warner v. Metropolitan Police Commissioner (1969) 2 AC 256, at p 279 ). It is preferable to resolve an ambiguous provision of an Act by looking at what the legislators said they intended rather than interpret it in an opposite sense by referring to similar phrases in legislation on remote subjects. (at p481)

6. The respondents are not reporting agencies within the Fair Credit Reports Act. The first appeal should be dismissed. (at p481)

7. The second appeal raises a question which depends very much on whether the respondents are held to be reporting agencies within the Fair Credit Reports Act, that is, on the result of the first appeal. In the circumstances, there is no point in stating my view of the proper application of the Consumer Credit Act, 1972-1973 (S.A.). I agree that the appeal should be dismissed. (at p481)

SOUTH AUSTRALIAN COMMISSIONER FOR PRICES AND CONSUMER
AFFAIRS v. CHARLES MOORE (AUST.) LTD.

Orders

Appeal allowed with costs.

Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.
CREDIT TRIBUNAL v. CHARLES MOORE (AUST.) LTD.

Appeal dismissed with costs.