In the matter of a reference under section 154 of the Australian Performing Rights Association Ltd v Australian Broadcasting Commission

Re: IN THE MATTER OF THE COPYRIGHT ACT 1968 (as amended) and IN THE MATTER OF
A REFERENCE UNDER SECTION 154 OF THE AUSTRALASIAN PERFORMING RIGHT ASSOCIATION
LTD RE AUSTRALIAN BROADCASTING COMMISSION (1982) 65 FLR 437
No. G171 of 1982
Copyright - Post and Telegraph

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Franki(1) and Sheppard(1) JJ.

CATCHWORDS

Copyright - Reference from Copyright Tribunal - Licence scheme under s.154 - Whether Australian Broadcasting Commission falls within "Commonwealth" in s.183 - Agent or instrumentality of the Commonwealth - Whether television or sound broadcasts are acts done for the services of the Commonwealth.

Copyright Act 1968, ss.136, 154, 161, 183.

Broadcasting and Television Act 1942 ss.32, 43, 64, 70, 70B, 77, 78A.

Copyright - Reference of questions of law by Copyright Tribunal - Licence scheme - Whether Australian Broadcasting Commission falls within term "Commonwealth" - Whether Commission agent or instrumentality of Commonwealth - Whether television or sound broadcasts are acts done for services of Commonwealth - Copyright Act 1968 (Cth), ss. 136, 154, 161, 183 - Broadcasting and Television Act 1942 (Cth), ss. 32, 43, 64, 70, 70B, 77, 78A.

Post and Telegraph - Whether Australian Broadcasting Commission falls within term "Commonwealth" - Whether Commission agent or instrumentality of Commonwealth - Copyright Act 1968 (Cth), ss. 136, 154, 161, 183 - Broadcasting and Television Act 1942 (Cth), ss. 32, 43, 64, 70, 70B, 77, 78A.

HEADNOTE

The Australasian Performing Right Association Ltd. (A.P.R.A.) claiming to be a licensor within s. 136(1) of the Copyright Act 1968 formulated a licence scheme setting out the classes of cases in which it, as licensor, was willing to grant a licence to the Australian Broadcasting Commission (the Commission). The A.P.R.A. referred the licence scheme to the Copyright Tribunal (the Tribunal) pursuant to s. 154(1) of the Act. The Commission objected to the Tribunal's jurisdiction on the ground that it was an agent or instrumentality of the Commonwealth and protected by s. 183 of the Act from infringing copyright when broadcasting or televising items in which copyright subsists. The Tribunal held that the Commission was not an instrumentality or agency of the Commonwealth. It referred three questions of law to the Federal Court: 1. Is the Commission an agent or instrumentality of the Commonwealth for the purposes of s. 183 of the Act? 2. Are acts, being broadcasts by radio or television which are done for the National Broadcasting and Television Service, conducted by the Commission, done for the services of the Commonwealth within the meaning of s. 183(1) of the Act? 3. Does the Tribunal have jurisdiction to make orders confirming or varying the licence scheme pursuant to s. 154 of the Act?

Held: Per curiam - (1) The Commission does not fall within the word "Commonwealth"; nor is it an agent or instrumentality of the Commonwealth for the purposes of s. 183 of the Act.

Inglis v. Commonwealth Trading Bank of Australia (1969) 119 CLR 334; Grain Elevators Board (Vic.) v. Dunmunkle Corporation (1946) 73 CLR 70; Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.) (1979) 145 CLR 330; Townsville Hospitals Board v. Council of the City of Townsville (1982) 56 ALJR 789; Pfizer Corporation v. Ministry of Health (1965) AC 512; Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. (1979) 145 CLR 107, referred to. (2) Questions answered accordingly.

HEARING

Sydney, 1982, December 15. #DATE 15:12:1982

REFERENCE OF QUESTIONS OF LAW.

The Copyright Tribunal, when dealing with a reference to it under s. 154 of the Copyright Act 1968 of a licence scheme, referred questions of law, the terms of which appear in the judgments to the Federal Court of Australia for determination.

J.J. Garnsey and R.M. Durie, for the Australian Broadcasting Commission.

M. Wilcox Q.C. and H.G. Shore, for the Australasian Performing Right Association Ltd.

Cur. adv. vult.

Solicitor for the Australian Broadcasting Commission: J.M. McD. Harris.

Solicitor for the Australasian Performing Right Association Ltd.: B.R. Cottle.

T.J. GINNANE

ORDER

1. The questions referred to this Court by the Copyright Tribunal pursuant to s.161 of the Copyright Act 1968 be answered as follows:-

Question 1: Is the Commission an agent or instrumentality of the Commonwealth for the purposes of s.183 of the Act?

Answer: No.

Question 2: Are acts, being broadcasts by radio or television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1) of the Act?

Answer: No.

Question 3: Does the Tribunal have jurisdiction to make orders confirming or varying the licence scheme pursuant to s.154 of the Act?

Answer: Yes, assuming the licence scheme falls within the definition in s.136 of the Copyright Act, 1968.

2. The Australian Broadcasting Commission pay to Australasian Performing Right Association Limited its costs of the reference.

JUDGE1

This is a case stated by the Copyright Tribunal ("the Tribunal") for the opinion of the Court pursuant to s.161 of the Copyright Act 1968 ("the Act") by which questions of law arising in proceedings before the Tribunal may be referred for determination by the Court.

The Australasian Performing Right Association Limited (APRA) being or claiming to be a licensor within the meaning of s.136(1) of the Act formulated a licence scheme ("the licence scheme") setting out the classes of cases in which it, as licensor, was willing to grant a licence to the Australian Broadcasting Commission ("the Commission") subject to certain conditions including the payment of a licence fee calculated with reference to the Commission's gross operational expenditure incurred in the provision of radio and television broadcasting services. APRA referred the licence scheme to the Tribunal pursuant to s.154(1) of the Act and purported to bring the scheme into operation on 20 February 1981 pursuant to s.154(6)(a).

Before the Tribunal the Commission took a preliminary objection to the Tribunal's jurisdiction to consider the scheme and to make orders confirming or varying it under s.154(4) on the ground that the Commission was an agent or instrumentality of the Commonwealth and as such was protected by s.183 of the Act from infringing copyright when broadcasting or televising items in which copyright subsists. The Commission further contended that, in the circumstances of the present case, s.183 provided an exclusive code for the fixing by the Tribunal of the terms on which the Commission may do acts comprised in a copyright.

The Tribunal heard argument on the preliminary objection and, on 11 June 1982, held that the Commission was not an instrumentality or agency of the Commonwealth and published reasons for that decision. The Tribunal refrained at that stage from making any orders or answering any specific questions relating to the preliminary objection.

The Tribunal has referred the following questions of law to this Court:

(1) Is the Commission an agent or instrumentality of the Commonwealth for the purposes of s.183 of the Act?

(2) Are acts, being broadcasts by radio or television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1) of the Act?

(3) Does the Tribunal have jurisdiction to make orders confirming or varying the licence scheme pursuant to s.154 of the Act?

Section 183 of the Act provides so far as is relevant:

"(1) The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

. . .

(3) Authority may be given under sub-section (1) before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he has a licence granted by, or binding on, the owner of the copyright to do the acts.

(4) Where an act comprised in a copyright has been done under sub-section (1), the Commonwealth or State shall, as soon as possible, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so, inform the owner of the copyright, as prescribed, of the doing of the act and shall furnish him with such information as to the doing of the act as he from time to time reasonably requires.

(5) Where an act comprised in a copyright has been done under sub-section (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal.
. . . "

Section 154 of the Act provides so far as is relevant:

"(1) Where a licensor proposes to bring a licence scheme into operation, he may refer the scheme to the Tribunal.

. . .

(4) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances.

. . .

(6) Where a licence scheme has been referred to the Tribunal under this section, the licensor may do either or both of the following things:

(a) bring the scheme into operation before the Tribunal makes an order in pursuance of the reference;

(b) withdraw the reference at any time before the Tribunal makes an order in pursuance of the reference, whether the scheme has been brought into operation or not.
. . . "

The effect of a licence scheme under s.154 is that a person to whom the scheme applies has the benefit of it.

The extent of the words "a licence scheme", referred to in s.154, is dealt with in s.136 and extends to the copyright in a literary, dramatic or musical work or a sound recording. It does not appear to extend to all the categories referred to in s.183(1), for example to an artistic work or to the making by the Commonwealth of a cinamatograph film for the service of the Crown in, for example, the Attorney-General's Department.

The case for the Commission was put upon the basis that the Commission was equated with the Commonwealth in s.183 and that broadcasting by the Commission was broadcasting "for the services of the Commonwealth". It was submitted that any television or sound broadcasting by the Commission was protected by s.183(1). It was not suggested that the Commission was a person authorised in writing by the Commonwealth or that it was necessary to examine each item broadcast individually.

Two broad questions arise, namely:

A. Is the Commission included in the word "Commonwealth" in s.183; and

B. Does a television or sound broadcast by the Commission, without more, fall within the words "acts . . . done for the services of the Commonwealth?
We return now to the specific questions we have been asked.

Question 1.

We were asked to consider whether the Commission is "an agent or instrumentality of the Commonwealth" for the purposes of s.183. It is not clear to us that this is the question which has to be answered. The question arising on the words of that section we have formulated as question A. Some legislation, when dealing with the Commonwealth, makes it clear that word "Commonwealth" includes references to an authority of the Commonwealth. For example, s.125 of the Patents Act 1952 uses words in relation to patents equivalent to those appearing in s.183(1) of the Act, but s.132 of the Patents Act provides that ". . . the references to the Commonwealth include references to an authority of the Commonwealth . . .". However we will approach the question in the broad way in which it has been presented.

There is a number of cases dealing with the question whether a corporation is what may be called an instrumentality or as it is sometimes called an emanation by which the Commonwealth operates. In Inglis v. Commonwealth Trading Bank of Australia (1969) 119 C.L.R. 334, the High Court considered whether that bank fell within the description in s.75(3) of the constitution as being "sued on behalf of the Commonwealth". A majority of the Court held that it was. Kitto J., with whose judgment Windeyer J and Barwick C.J., in substance, agreed, said (at pp.337-338):
"The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally accepted governmental character may well help in the ascertainment of the legislative intention. The question is rather what intention appears from the provisions relating to the respondent in the relevant statute: is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth, activity cannot realistically be applied to that which the corporation does?"

In Grain Elevators Board (Victoria) v. Dunmunkle Corporation (1946) 73 C.L.R. 70 the High Court dealt with the question whether land which was vested in a statutory corporation came within the words "land the property of His Majesty" and thus was exempt from rates. Five of the six members of the Court took the view that the land did not come within the words "the property of His Majesty". Latham C.J., (at pp.75-76), in dealing with functions which were governmental in character pointed out that some functions were inalienable functions of government but that other governmental functions were made such by statute. In a number of cases the High Court has had to consider somewhat similar questions but no useful purpose would be served by dealing with them in any detail. At p.76 the Chief Justice posed the relevant question in various ways including "Were they Government servants doing the work of the Government?"

In Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.) (1979) 53 A.L.J.R. 614, the High Court considered whether the Superannuation Fund Investment Trust was the Crown in the sense that it was to be regarded as equated with the Crown in right of the Commonwealth or as an instrumentality or agent of the Crown in right of the Commonwealth in certain activities. Stephen and Aickin JJ. held it was not. Barwick C.J. took a different view. Stephen J. (at p.619) said that he ". . . placed most weight upon the entire independence of the members of the Trust in relation to their investment function". Mason J. (at p.621) said:
"Whether the appellant is, or represents, the Crown in right of the Commonwealth depends upon the Superannuation Act".

Aickin J. at p.628 said:
"Of all the kinds of provisions that may be relevant to the determination of whether a statutory body (whether corporate or not) is the Crown, the capacity of the executive government to control its operations (whether directly by instruction or direction or indirectly by power to remove otherwise than for misconduct or incapacity those in control of its operations), and the nature of its functions are the most important."

At p.622 Mason J. held that the Trust was the Crown in right of the Commonwealth and he said that "although the Trust is a separate corporate entity the control which the Crown has over its membership and its activities shows that it is the alter ego of the Crown". He noted, inter alia, that its members were appointed and liable to removal by the Executive Government. Barwick C.J. reached the same conclusion that the Trust was "a manifestation of the Crown in right of the Commonwealth". It is clear from the judgment in this case, as in others, that the question is to be determined by an analysis of the relevant legislation.

In Townsville Hospitals Board v. Council of the City of Townsville (1982) 56 A.L.J.R. 789 it was held the Townsville Hospitals Board was not entitled to the immunity of the Crown. Gibbs C.J. (at p.791) said:
". . . . . . . . many functions formerly regarded as matters of private concern are now carried out by instrumentalities of government and the question whether the functions in question are traditionally or peculiarly governmental is likely to be increasingly unhelpful in deciding whether the body formed to carry out those functions enjoys the privileges and immunities of the Crown".
Later (at p.792) he said:
"It has more than once been said in this Court that 'there is evidence of a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless parliament has by express provision given it the character of a servant of the Crown': Launceston Corporation v. The Hydro-Electric Commission (1959) 100 C.L.R. 654, at p. 662; State Electricity Commission of Victoria v. City of South Melbourne (1968) 118 C.L.R. 504, at p. 510. All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had the intention".

We have to determine the question by examining the Act constituting the Commission. This is the Broadcasting and Television Act 1942. The learned President of the Tribunal analysed the Act in detail and we see no useful purpose in repeating his analysis in detail. He pointed out (at pp.12-13):
"Matters to be considered include the question whether the corporation fulfils a governmental or non-governmental function; the capacity of the Government to control its activities; financial autonomy; the right of appointment and dismissal of the members of the body of its staff by the Government; whether it has duties to furnish information or accounts to the Government; and its power over assets in its ownership or control."

It is clear that the Broadcasting and Television Act gives the Commission a great deal of autonomy and it cannot be said that broadcasting and television are inalienable government functions. The Broadcasting and Television Act has a number of provisions which are not unusual in statutory corporations, for example, funds provided by the government, audit by the Auditor General, and the obligation to report to Parliament. The Commission is constituted by eleven members appointed by the Governor-General who hold office subject to good behaviour for a fixed period. There is no power to terminate the appointment of a member of the Commission other than for misbehaviour (s.32). The Commission appoints the General Manager who is the Chief Executive Officer and holds the office on such terms and conditions as the Commission determines (s.43(1)). It may also appoint other officers (s.43(2)) who are not except, in special circumstances, officers of the Australian Public Service (s.43(11)).

The programmes are not, in general, subject to any Ministerial control which is not also applicable to commercial stations. Section 116 provides that the Commission may determine to what extent and in what manner political matter or controversial matter will be broadcast or telecast by the Commission. Sections 64, 77 and 78A of the Broadcasting and Television Act deal with the only other relevant aspects of matter broadcast or televised by the Commission which are subject to Ministerial control. Under s.64 the Commission is required to broadcast or televise from such stations ". . as the Minister specifies, any matter the broadcasting or televising of which is directed by the Minister in writing as being in the national interest." Under s.77 the Minister may " . . . by telegram or in writing prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, specified in the notice, or may require the Commission to refrain from broadcasting or televising any such matter". Section 78A requires the Minister, if he acts under s.64 or 77, shall within 7 sitting days ". . . report the same in writing to both Houses of the Parliament and shall give the reasons for such direction, prohibition or requirement, as the case may be."

It is clear that, so far as concerns programmes, the Commission is subject to very little governmental control. Similarly in relation to its administrative activities, it is also subject to minimal control. It depends, of course, for the provision of funds substantially upon, ". . such monies as are appropriated by the Parliament for the purposes of the Commission" (s.68(1)). Section 70 provides that the monies of the Commission shall be applied only in payment of amounts properly payable in the performance of its functions and in payment of remuneration and allowances payable to Commissioners. Otherwise the Commission may administer its affairs substantially as it sees fit. There is a limitation on the Commission entering into contracts exceeding $250,000 (s.70B).

In our opinion the Commission does not fall within the word "Commonwealth"; nor is it an agent or instrumentality of the Commonwealth for the purposes of s.183.

If it did fall within s.183 the question, which we have called question B, would then arise whether television broadcasts or sound broadcasts were acts done "for the services of the Commonwealth" within s.183(1). This question is substantially question 2 referred by the Tribunal.

Counsel for the Commission referred to Pfizer Corporation v. Ministry of Health (1965) A.C. 512 where the question arose whether the supply of medicine to the National Health Service Hospitals for use in the treatment of patients, fell within the expression "for the services of the Crown" and so fell within a provision in s.46(1) of the Patents Act, 1949 (U.K.) permitting the use of patented inventions by any Government department for the services of the Crown.

It was conceded that the Ministry of Health was a Government department within the meaning of that section. It thus became only necessary to examine the words "the services of the Crown". It was held by a majority that the use under consideration was for the services of the Crown but Lord Reid (at p.534) pointed out that ". . . nationalised industries, for example, are not services of the Crown". His Lordship (at p.535) expressed the view that ". . . the natural meaning of use for the services of the Crown is use by members of such services in the course of their duties".

No doubt the broadcasting of radio and television programmes by the Commission constitutes a "service" in the sense that it falls within the words "Postal, telegraphic, telephonic and other like services" used in s.51(v) of the Constitution (Jones v Commonwealth (No.2) (1965) 112 C.L.R. 206).

It does not follow that because broadcating by the Commission is a "service" within s.51(v), any broadcasting undertaken by the Commission is for the services of the Crown. Indeed, if the Commission is not the Crown, it would seem that it could not properly be said that its broadcasting was "for the services of the Crown". If the Commission is the Crown, then it could be said its broadcasting was "for the services of the Crown" if the view of the majority of the House of Lords in Pfizer Corporation v Ministry of Health (1965) A.C. 512 be accepted for Australian conditions. This was that the phrase "for the services of the Crown" is not restricted to the traditional notion that it relates to services used by the Crown or its servants but in modern times extends also to services provided by the Crown or its servants to members of the public. In view of our conclusion that the Commission is not the Crown it is unnecessary to express a concluded view on this point.

As we have said the case was put for the Commission upon the basis that each individual act of the Commission did not have to be examined under s.183 to ascertain whether a particular act, for example, the broadcasting of a sound recording, constituted an act done for the services of the Commonwealth but that any act done by the Commission, which fell within s.183, was always an act done for the services of the Commonwealth.

We are by no means satisfied that each act should not be examined separately. If reliance is placed on s.183 the Commonwealth is required as soon as possible after doing an act within that section, unless it appears to the Commonwealth that it would be contrary to the public interest to do so, to inform the owner of the copyright of the doing of the act and furnish him with such information as to the doing of the act as he from time to time reasonably requires. Section 183(5) provides for the terms for the doing of the act to be such as are agreed between the Commonwealth and the owner of the copyright or, in default of agreement, as is fixed by the Copyright Tribunal. One can visualise that, in many instances, even in a very short period, a television or sound broadcast by the Commission may involve acts which, in the absence of some authorisation, would infringe a great many copyrights owned by a number of owners. It seems unlikely that Parliament intended to place such broad obligations on the Commonwealth. In addition one part of a broadcast may not be of a kind which could be said to be done for the services of the Commonwealth, if for no other reason, because of its nature.

We answer the questions referred by the Tribunal as follows:

Question 1. No.

Question 2. No.

Question 3. Yes, assuming the licence scheme falls within the definition in s.136 of the Copyright Act 1968.

We would order the Commission to pay to the respondent its costs of this reference to the Court.

JUDGE2

This is a case stated by the Copyright Tribunal pursuant to s.161 of the Copyright Act 1968 ("the Act"). The questions raised by the case for the decision of the Court are:

"1. Is the Commission an agent or instrumentality of the Commonwealth for the purposes of Sec.183 of the Act?

Are acts, being broadcasts by radio or television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1) of the Act?

Does the Tribunal have jurisdiction to make orders confirming or varying the licence scheme pursuant to Sec. 154 of the Act?"

The Act referred to is the Copyright Act. The Commission is the Australian Broadcasting Commission.

The facts of the matter may be shortly stated. The above named Australasian Performing Right Association Limited ("APRA") is or claims to be, a licensor within the meaning of s.136(1) of the Act. "Licensor" is there defined to include, in relation to licences in respect of a literary, dramatic or musical work, the owner or prospective owner of the copyright in the work or any body of persons acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences. "Licence" is also defined in s.136(1). It means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, dramatic or musical work, or of the copyright in a sound recording, being in the case of a literary, dramatic or musical work, a licence to perform the work or an adaptation thereof in public, to broadcast it, to make a sound recording or film of it or to cause the work to be transmitted to subscribers to "a diffusion service".

APRA formulated a licence scheme, which expression is defined in s.136(1) of the Act to mean a scheme formulated by a licensor or licensors and setting out the classes of cases in which the licensor is willing to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases. The scheme formulated by APRA set out the classes of cases in which it, as licensor, was willing to grant a licence to the Commission together with the conditions including the payment of a licence fee calculated with reference to the Commission's gross operational expenditure upon which it would grant the licence. APRA referred the scheme to the Tribunal pursuant to s.154(1) of the Act. Sub-sections (1) and (2) of s.154 are as follows:
"(1) Where a licensor proposes to bring a licence scheme into operation, he may refer the scheme to the Tribunal.

(2) The parties to a reference under this section are -

(a) the licensor referring the scheme; and

(b) such organizations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference."

The remaining sub-sections of s.154 are not of direct relevance to the determination of the questions here to be decided. For completeness, however, I mention sub-sections (4), (5), (6) and (7). Sub-section (4) provides that the Tribunal shall consider a scheme referred under the section and shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances. Sub-section (5) provides that an order of the Tribunal under the section may be made so as to remain in force either indefinitely, or for such period as the Tribunal thinks fit. Subsection (6) provides, inter alia, that, where a licence scheme has been referred to the Tribunal under the section, the licensor may bring the scheme into operation before the Tribunal makes an order in pursuance of the reference. APRA purported to bring the scheme into operation on 20 February, 1981, pursuant to this provision. Sub-section (7) provides that if the scheme is not brought into operation before an order is made, the scheme as confirmed or varied by the order comes into operation forthwith upon the making of the order.

Until 1 July, 1979, APRA licensed the Commission to broadcast by television or radio the works owned by or controlled by APRA in return for a remuneration fixed by reference to Australia's population. Since that date under interim arrangements entered into between APRA and the Commission without prejudice, the permission to use APRA's works has been extended. The rate of remuneration formerly payable has continued to apply.

Before the Tribunal the Commission took a preliminary objection to jurisdiction on the ground that the Commission was an agent or instrumentality of the Commonwealth and as such was protected by s.183 of the Act from infringing copyright when broadcasting or televising works in which copyright subsists. The Commission further contended that in the circumstances of the present case s.183 provided an exclusive code for the fixing by the Tribunal of the terms on which the Commission may use and broadcast works the subject of a copyright.

Section 183 of the Act, so far as it is relevant, is as follows:
"(1) The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the "Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

. . . . . . .

(3) Authority may be given under sub-section (1) before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he has a licence granted by, or binding on, the owner of the copyright to do the acts.
. . . . . . .
(5) Where an act comprised in a copyright has been done under sub-section (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal."

Reference should also be made to s.7 of the Act which provides that, subject to Part VII, the Act "binds the Crown but nothing in the Act renders the Crown liable to be prosecuted for an offence". Section 183 of the Act is in Part VII. Sections 136 and 154 are in Part VI.

The Tribunal heard argument on the preliminary objection. On 11 June, 1982, it decided that the Commission was not an instrumentality or agency of the Commonwealth and published reasons for that decision. The Tribunal refrained at that stage from making any orders or answering the questions relating to the preliminary objection. The reasons of the Tribunal are annexed to the case which it has stated.

A number of matters, some in my view involving difficult questions, were canvassed in argument. But, by reason of the clear view I have as to the correct answer to question 1, none of these arises for decision. I propose to proceed by determining what I think the answer to that question should be. When that has been done I shall mention some other matters unrelated to its determination.

Question 1 raises for decision the question of whether the Commission is an agent or instrumentality of the Commonwealth for the purposes of s.183 of the Act. It is the Commission's contention that it is. The contrary is put by APRA. In the light of the provisions of s.183 I would not have thought, with respect, that this question was necessarily apt. The essential words in s.183(1) are, "if the acts are done for the services of the Commonwealth". It seems to me that there is ground for the view that the expression "services of the Commonwealth" does not include the "services" of a body corporate which is an agent or instrumentality of the Commonwealth. It is to be observed that, although s.125 of the Patents Act 1952 makes a similar provision to s.183(1) in relation to patents, references to the Commonwealth include references to an authority of the Commonwealth; see s.132.

This matter was not pursued in argument and I express no opinion on it. The fact that it was not argued was apparently because of dicta in the majority speeches of the House of Lords in Pfizer Corporation v. Ministry of Health (1965) A.C. 512. I would not, however, have thought them relevant to the question of whether "services of the Commonwealth" extended to services of a body corporate which was an instrumentality or agency of the Commonwealth. In my opinion they have a different relevance which I shall later mention.

I should add that we were informed that the Commonwealth had not purported, pursuant to s.183(1) of the Act, to authorise the Commission in writing to do "any acts comprised" in any copyright. What the position would be if such an authorisation were made or purported to be made I do not pause to consider.

I return to the question of whether the Commission is an agent or instrumentality of the Commonwealth. A first step in reaching a conclusion is to consider a number of the provisions of the Broadcasting and Television Act 1942("the Broadcasting Act") pursuant to Part III of which the Commission is established. Before mentioning sections in that Part it is relevant to note that the Broadcasting Act deals with a number of important matters unconnected with the establishment and functions of the Commission. These are the establishment of the Australian Broadcasting Tribunal (Part II), the establishment of the Special Broadcasting Service (Part IIIA), the grant of broadcasting and television licences (Part IIIB) and the licensing and regulation of the Commercial Broadcasting Service (Part IV).

For present purposes the more important provisions of Part III are as follows:-

(a) Incorporation and establishment

Section 30 provides that there shall be a Commission to be known as the Australian Broadcasting Commission. It is established as a body corporate with perpetual succession and a common seal, and may acquire, hold and dispose of real and personal property. It is capable of suing and being sued in its corporate name. By s.31 the Commission is to consist of not more than eleven and not less than nine Commissioners, two at least of whom are to be women. The Commissioners are appointed by the Governor-General as part-time Commissioners. One is to be appointed Chairman and another Vice-Chairman. By s.32 a Commissioner holds office for such period, not exceeding five years, as is specified in his instrument of appointment. Commissioners are eligible for re-appointment and hold office subject to good behaviour. Section 37 provides for a number of specified events the happening of any one of which obliges the Governor-General to declare that the office of a Commissioner is vacant. Examples of events specified in the section are a Commissioner becoming permanently incapable of performing his duties and being absent, except on leave of absence granted by the Minister, from all meetings of the Commission held during two consecutive months.

(b) Staff and terms and conditions of employment.

By s.43 the Commission is to appoint a general manager who shall be the chief executive officer of the Commission and shall hold office on such terms and conditions as the Commission determines. The Commission is to appoint such other officers and engage such temporary employees as it thinks necessary. The officers of the Commission are to constitute "the service of the Commission". By s.43(6) the terms and conditions of employment of officers and temporary employees appointed in pursuance of the section are such as are determined by the Commission with the approval of the Public Service Board. Sections 48, 48A, 49 and 50 provide for promotion of officers. An appeal lies against a promotion to a promotions appeal board known as the Australian Broadcasting Commission Promotions Appe 1 Board. The Chairman of the Board is to be appointed by the Governor-General. The Board otherwise consists of an officer appointed by the Commission and an officer nominated by the organisation (i.e. industrial organisation) of which it is appropriate for a person occupying the vacant position concerned to be a member. Sections 56, 57 and 58 provide for disciplinary action in the event of misconduct. Section 56 specifies a number of categories of misconduct and enables the Commission to take various courses of action in respect of the commission of such conduct. An appeal lies to a disciplinary appeal board known as the Australian Broadcasting Commission Disciplinary Appeal Board. It is constituted pursuant to s.58. Its constitution is broadly similar to that of the Promotions Appeal Board except that the chairman must be a person who is or has been a magistrate of a State or Territory. The third member of the Board is to be an officer elected by the officers of the Commission.
(c) Powers and functions of the Commission.

By s.59 the Commission is to provide, and shall broadcast or televise from stations provided in accordance with s.76, adequate and comprehensive programmes "and shall take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programmes". Where the Commission considers it necessary for the proper carrying out of its objects or for any purpose incidental thereto, the Commission may make arrangements for the holding of, or may organise or subsidise any public concert or other public entertainment. By s.60 the Commission is empowered to compile, prepare, issue, circulate and distribute such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as it thinks fit. It may also make, promote, circulate and distribute films and sound recordings of or relating to its programmes and also public concerts and other public entertainment which it has organised or subsidised. It may determine charges payable for its publications, films and recordings "with a view to raising as much net revenue as is practicable, having regard to the proper performance of its functions and to the matter or activity concerned".

By s.61 the Commission may acquire by lease or purchase any land, buildings or other property which it thinks necessary for its purposes, and may also sell, lease or otherwise deal with any property, rights or privileges of the Commission.

It is to provide such studios, offices and other accommodation as are necessary for the performance of its powers and functions under the Act.

Section 64 is as follows:
"Subject to this Act, the Commission shall broadcast or televise free of charge from all the national broadcasting stations or national television stations, or from such of them as the Minister specifies, any matter the broadcasting or televising of which is directed by the Minister in writing as being in the national interest"

By s.65 the Commission is not to televise or broadcast advertisements. By s.66 it is to broadcast daily from all national broadcasting stations regular sessions of news and information. It is to employ an adequate staff both in Australia and overseas for the purpose of collecting the news and information to be broadcast.

By s.67 the Commission is to endeavour to establish and utilise groups of musicians for the rendition or orchestral, choral and band music.

(d) Finances.

Section 68 provides that there are payable to the Commission such moneys as are appropriated by Parliament for its purposes. By s.70 the moneys are to be applied only in payment of amounts properly payable in the performance of its functions and in payment of remuneration or allowances payable to the Commissioners. By s.70B the Commission is not, without the approval of the Minister, to enter into a contract involving the payment or receipt of an amount exceeding $250,000 or such higher amount as may be prescribed.

Section 71 provides for the keeping of proper accounts and s.71B for the auditing of those accounts by the Auditor-General.

By s.72 the Commission is not subject to taxation under any law of the Commonwealth or of a State or Territory.

(e) Technical services

By s.73 the Commission is to provide and operate all the technical equipment required for the purposes of performing its functions. The Minister is to arrange for the provision and operation, for the purposes of the performance by the Commission of its functions, of transmitting stations and certain other categories of station specified in the section.

(f) Miscellaneous

Section 77 and s.78A provide as follows:
"77. Subject to this Act, the Minister may, from time to time, by telegram or in writing, prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, specified in the notice, or may require the Commission to refrain from broadcasting or televising any such matter."

"78A. Where the Minister has given a direction under section 64 or has prohibited the broadcasting or televising of any matter or made any requirement under section 77, he shall, within 7 sitting days of giving such direction or notifying such prohibition or requirement, report the same in writing to both Houses of Parliament and shall give the reasons for such direction, prohibition or requirement, as the case may be."

Finally, s.78 provides that the Commission shall, as soon as possible, but not later than six months after the expiration of each financial year prepare a financial statement and forward it, together with a report on the operations of the Commission during that year, to the Minister for presentation to both Houses of Parliament. The report is to include, inter alia, particulars of each transmission arranged at the written direction of the Minister in pursuance of s.64 and each case in which the minister has exercised the powers conferred on him by s.77. The report is also to include particulars of "whether the receipt and expenditure of moneys, and the acquisition and disposal of assets, by the Commission during the year have been in accordance with this Act".

That completes my account of the relevant statutory provisions. The question of whether the Commission is an instrumentality or agency of the Crown is to be determined by a consideration of those provisions with a view to determining Parliament's intention as to what the position was to be. Assistance is to be found in a multiplicity of cases decided here and in England many of which were referred to in argument. But in the end it is a matter of looking to the words which Parliament has used.

The authorities do provide indications of the type of consideration which will point, or not point, to a particular body being the Crown or one of its agencies. But because each case depends upon its own circumstances, there is no clear guiding principle or rule. In Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.) (1979) 53 A.L.J.R. 614 Stephen J. said (p.619):
"I have not expressed these various considerations (the considerations to be taken into account in determining whether a body is the Crown) in terms of specific 'tests' although the precedent authorities provide fertile ground for the development of the concept of such 'tests'. I have, of course, had regard to those authorities, while recognizing that the primary task is that of statutory interpretation rather than any mechanical application of supposed tests."

In the reasons of the Tribunal in the instant case prepared by Lockhart J. it is said:
"Matters to be considered include the question whether the corporation fulfils a governmental or non-governmental function; the capacity of the Government to control its activities; financial autonomy; the right of appointment and dismissal of the members of the body and of its staff by the Government; whether it has duties to furnish information or accounts to the Government; and its power over assets in its ownership or control."

I would respectfully agree with that list as being, subject to one matter, an exhaustive list of the matters it is relevant to take into account in the present case. I would add a further matter relied upon by senior counsel for APRA before us, namely, the question of whether the property of the Commission is held for the Commonwealth.

Although it is not always decisive, the question of control is usually of importance. It was important to Stephen J. in the Superannuation Fund Investment Trust case earlier cited. After the passage quoted from his judgment he said that he had placed most weight upon the entire independence of the members of the Trust in relation to their investment function. His Honour added, "This appears to me of considerable importance and to have been so treated in many of the precedent cases"(p.619). Amongst the cases his Honour cited were Grain Elevators Board (Vict.) v. Dunmunkle Corporation (1946) 73 C.L.R. 70, and Inglis v. Commonwealth Trading Bank of Australia (1969) 119 C.L.R. 384. In the former case Latham C.J. said (p.76):
"Where persons or an incorporated authority are subject to direct ministerial control so that they act under the direction of a Minister, such persons or authorities act on behalf of the Crown and any provision, whether express or implied, for Crown exemption is applicable to them: . . . . . . . . .
But if a board is a body independent of the Government with discretionary powers of its own, so that it is not a mere agent of the Government, then such a body does not represent the Crown."

In the Superannuation Fund Investment Trust case four judges were equally divided on the question of whether the Trust was an agency of the Crown. Barwick C.J. (supra at p.615) and Mason J. (supra at p.622) thought that it was the Crown. Stephen J. (supra at p.619) and Aickin J. (supra at p.627) thought that it was not. But the judgment of Mason J. (in whose judgment on the point Barwick C.J. agreed) does not suggest that he did not regard control as an important factor. Amongst other things he said (p.622):
"Although the Trust is a separate corporate entity the control which the Crown has over its membership and its activities shows that it is an alter ego of the Crown. Thus its members are appointed and liable to removal by the Executive Government, it is bound to furnish information to the Treasurer at his request and it must submit its annual report and financial statements to the Treasurer after they have been audited by the Auditor-General. The Trust, in determining the investment policy which it will pursue within the prescribed investments which it is authorized to make (see s.42(2) and (4)), is free of directions by the Treasurer and the Government, but this in itself does not show that it has been established as a body independent of the Crown."

Counsel for the Commission concentrated upon a passage in the judgment of Kitto J. in Inglis v. Commonwealth Trading Bank of Australia (supra at pp.337-338) where his Honour, who wrote the leading judgment, said:
"The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally accepted governmental character may well help in the ascertainment of the legislative intention. The question is rather what intention appears from the provisions relating to the respondent in the relevant statute; is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the "field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot realistically be applied to that which the corporation does?"

He submitted that the Act here disclosed an intention that the Commonwealth should operate in the broadcasting and television field through a corporation, that is the Commission, created for the purpose. Thus it was the Commonwealth through the agency of the Commission which was engaging in the various functions of broadcasting and television which are provided for in the Broadcasting Act.

Counsel seemed to say that the way the matter was put by Kitto J. was a way somewhat different from the way the question has been posed in other cases. I do not agree that that is so and it is to be observed that Stephen J. in the Superannuation Fund Investment Trust case did not regard the case as at all in any different category from many others. The other type of corporation posed in the test propounded by Kitto J. is a corporation intended to perform its functions independently of the Commonwealth, "that is to say otherwise than as a Commonwealth instrument".

It is to be observed that in his analysis of the problem Kitto J. goes on to take into account the same sort of considerations, particularly control, as are taken into account in many other authorities. It will be remembered that Stephen J. referred to his Honour's judgment in support of his view that control was a matter of "considerable importance". The passage from the judgment of Kitto J. to which his Honour refers is one where he demonstrates that in the event of a disagreement concerning policy the Commonwealth Trading Bank might eventually have to surrender to the wishes of the Governor-General acting with the advice of the Executive Council (p.340).

There is not here, as there is in some statutes providing for the incorporation of a statutory authority, any power vested in the Minister to control the activities of the Commission. I say that not unmindful of the provisions of ss.64 and 77 of the Act of which I shall say more a little later. The Commissioners are appointed for a term and may not be removed from office except on grounds of bad behaviour or the specific grounds mentioned in s.37 earlier referred to. The Commission is empowered to appoint the general manager of the Commission. He is to be the chief executive officer of it. The Commission has wide powers and discretions to discharge the duties cast upon it by the Act. The staff it employs are employees of the Commission and not of the Commonwealth. That remains the position notwithstanding that they cannot be appointed without the approval of the Public Service Board (s.43(6)).

Subject to what needs to be said about ss.64 and 77 of the Broadcasting Act, none of the functions and powers of the Commission is subject to control by the Minister or the Executive Council, nor is any of its staff subject to that control in any of the tasks they undertake. In my opinion ss.64 and 77 have a very limited operation and their presence in the Act does not qualify in any general way the statement just made. The first concerns matters which are directed by the Minister in writing "as being in the national interest". I would not wish to provide any exhaustive definition of what may be included as being in the national interest, but, in general terms, I would think that the matters would be limited to news or information concerning threats to the security of the country, whether from an internal or an external source, and natural disasters or threats to the general health of the community due to some catastrophe. Section 77 confers a wider power. Nevertheless it subjects the Commission, not to instruction as to what it shall broadcast or televise, but what it may not broadcast or televise.

It seems to me, when considering the Commission's argument based on these sections, that one should not overlook that the Act in Part III is concerned to set up a Commission which is designed, generally speaking, to provide broadcasting and television services throughout the country. The Commission is obliged by s.66 to broadcast news services with the frequency there specified. We live in a community which is democratic and in which the media, not only the press, enjoy a freedom to disseminate news and make comment on news without the restriction which exists in countries which are not so fortunate. The Broadcasting Act should be construed with it in mind that that is the kind of society which we have. Section 77 does confer upon the Minister a substantial power, but in the circumstances it is one which he might not be expected to exercise very often and then only in very serious circumstances. It is to be remembered that s.78A of the Broadcasting Act requires the Minister to notify action taken under either section to each House of Parliament within seven sitting days after action has been taken. Section 78(3) requires the Minister to include in his report to Parliament particulars of each transmission arranged at the written direction of the Minister in pursuance of s.64 and of each case in which the Minister has exercised the powers conferred on him by s.77.

For the above reasons I do not consider that ss.64 and 77 require the view to be taken that the Commission is under the control of the Minister.

Next I wish to say something about functions. The authorities show that a body, subject to other considerations, will be more likely to be regarded as the Crown or an instrument thereof if it is performing an ordinary function of government. That was a matter referred to in the judgment of the Acting Chief Justice in Bradken Consolidated Limited v. Broken Hill Proprietary Co. Limited (1979) 145 C.L.R. 107. His Honour referred to the fact that it had always been recognised in Australia that the conduct of railways was a function of the Governments of the States (p.115). His Honour went on to say:
"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."

The matter was referred to also by Kitto J. in his judgment in the Inglis case. He did not count it as at all decisive. I refer to the opening words of that portion of his judgment which I have earlier cited. It was for that reason that I did not put it to the forefront of the considerations which I took into account in F. Sharkey & Co. Pty. Limited v. Fisher (1980) 33 A.L.R. 173. I refer also to the judgment of Gibbs C.J. in Townsville Hospitals Board v. Council of the City of Townsville 56 A.L.J.R. 789 at p.791. Nevertheless, if one finds that the functions and powers of a statutory authority are not traditionally or historically those of government, that provides a further reason why one would not find it to be the Crown or one of its instrumentalities.

The Commission was first established in 1932. By then, broadcasting, although still in its infancy, was in existence being conducted by persons in their private capacities. Thus broadcasting has always been a commercial activity in Australia. So has television which was introduced in 1956. There is no warrant for taking the view, at least in Australia, that the provisions of broadcasting and television services is an ordinary function of government.

In the light of the submission made on behalf of the Commission based on the dictum of Kitto J. in the passage earlier cited from his judgment, that conclusion has further significance. He there posed the question whether there was, on the one hand, an intention that the Commonwealth should operate in a particular field through a corporation created for the purpose; or whether, on the other hand, there was an intention to put into the field a corporation to perform its functions independently of the Commonwealth. In the light of the various provisions of the Broadcasting Act I have reached the clear conclusion that the Commission falls into the latter category and not the former.

A further matter which reinforces me in that conclusion is that neither the property held by the Commission nor surplus revenue it may have is held by it for the Commonwealth or the Crown. The fact that the property of a statutory body is to be held on trust for the Crown has always been one of the indicators pointing to the fact that the body is the Crown. Here the indicator points the other way.

For the reasons given I would answer the first question in the negative. It follows that question 2 should also be answered in the negative and that the Tribunal does have jurisdiction to deal with the reference before it. That is, of course, upon the assumption that the licence scheme falls within the definition of that expression in s.136(1) of the Act. That was not a matter which was before us.

As mentioned earlier there were some further matters raised in argument which, in the light of my conclusion, do not require decision. I mention some of them. Firstly, it may be possible for an act to be done for the services of the Commonwealth within the meaning of s.183 of the Act, notwithstanding that the Commission is not the Commonwealth nor an agent or instrumentality thereof. Such a situation might arise if there were broadcast or televised something which was plainly broadcast or televised for the services of the Commonwealth, e.g. a radio or television programme put on for the purposes of the Commonwealth Government. The essential question, however, is whether the Commission is an organisation or person for the purposes of.s154 of the Act. It was its submission that it was not because everything it did by way of infringement of copyright fell within s.183. If it is not the Commonwealth, or an agency thereof, that cannot be correct.

An alternative submission relied upon by counsel for APRA was that, even if the Commission were the Commonwealth, there was nevertheless manifested an intention that Part VI of the Act including s.154 applied to it, notwithstanding the fact that s.183 would also apply. Reference was made to s.7 of the Act earlier set out and also to the fact that the Commission itself, Commonwealth or not, could be a licensor for the purposes of s.154. If it could be a licensor, why should it not also be an organisation for the purposes of the section? That is not a matter which, in my opinion, in the light of the answer I would give to question 1, need be decided and I express no view upon it.

Finally, I should say more about Pfizer's case (supra). It may have been open to APRA to argue that in no sense could the broadcasting and television services provided by the Commission be provided by it for the "services of the Commonwealth". Rather, so it could be said, they are provided for the services of members of the public receiving the Commission's transmissions. Senior counsel for APRA felt that argument concluded against him by the majority opinions of the House of Lords in Pfizer's case. Lord Reid said that he thought it a false dichotomy to treat some patented articles as made or used for the benefit of the department or service which uses them, and others as made or used for the benefit of those persons outside the service who may derive benefit from their use ((1965) A.C. at p.534). Later he said that sometimes, as in the case of the armed services, the use of a patent will benefit the whole community, sometimes such use will benefit a particular section of it and sometimes it will benefit particular individuals. His Lordship said that he could not see any good reason for making a distinction between one such case and another (p.535). Like opinions were expressed by Lord Evershed (pp.543-544) and Lord Upjohn (pp.551-552); contrary opinions were expressed by Lord Pearce (p.550) and Lord Wilberforce (pp.570-571).

In the result I would, for the reasons earlier given, answer the questions in the stated case as follows:

1. No.

2. No.

3. Yes, assuming the licence scheme falls within the definition in s.136(1) of the Act.

The Commission should pay the costs of the reference.

JUDGE3

This is a case stated by the Copyright Tribunal pursuant to s.161 of the Copyright Act 1968 ("the Act"). The questions raised by the case for the decision of the Court are:

"1. Is the Commission an agent or instrumentality of the Commonwealth for the purposes of Sec.183 of the Act?

Are acts, being broadcasts by radio or television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1) of the Act?

Does the Tribunal have jurisdiction to make orders confirming or varying the licence scheme pursuant to Sec. 154 of the Act?"

The Act referred to is the Copyright Act. The Commission is the Australian Broadcasting Commission.

The facts of the matter may be shortly stated. The above named Australasian Performing Right Association Limited ("APRA") is or claims to be, a licensor within the meaning of s.136(1) of the Act. "Licensor" is there defined to include, in relation to licences in respect of a literary, dramatic or musical work, the owner or prospective owner of the copyright in the work or any body of persons acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences. "Licence" is also defined in s.136(1). It means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, dramatic or musical work, or of the copyright in a sound recording, being in the case of a literary, dramatic or musical work, a licence to perform the work or an adaptation thereof in public, to broadcast it, to make a sound recording or film of it or to cause the work to be transmitted to subscribers to "a diffusion service".

APRA formulated a licence scheme, which expression is defined in s.136(1) of the Act to mean a scheme formulated by a licensor or licensors and setting out the classes of cases in which the licensor is willing to grant licenses and the charges (if any) subject to payment of which, and the conditions subject to which, licenses would be granted in those classes of cases. The scheme formulated by APRA set out the classes of cases in which it, as licensor, was willing to grant a licence to the Commission together with the conditions including the payment of a licence fee calculated with reference to the Commission's gross operational expenditure upon which it would grant the licence. APRA referred the scheme to the Tribunal pursuant to s.154(1) of the Act. Sub-sections (1) and (2) of s.154 are as follows:
"(1) Where a licensor proposes to bring a licence scheme into operation, he may refer the scheme to the Tribunal.

(2) The parties to a reference under this section are -

(a) the licensor referring the scheme; and

(b) such organizations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference."

The remaining sub-sections of s.154 are not of direct relevance to the determination of the questions here to be decided. For completeness, however, I mention sub-sections (4), (5), (6), and (7). Sub-section (4) provides that the Tribunal shall consider a scheme referred under the section and shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances. Sub-section (5) provides that an order of the Tribunal under the section may be made so as to remain in force either indefinitely or for such period as the Tribunal thinks fit. Sub-section (6) provides, inter alia, that, where a licence scheme has been referred to the Tribunal under the section, the licensor may bring the scheme into operation before the Tribunal makes an order in pursuance of the reference. APRA purported to bring the scheme into operation on 20 February, 1981, pursuant to this provision. Sub-section (7) provides that if the scheme is not brought into operation before an order is made, the scheme as confirmed or varied by the order comes into operation forthwith upon the making of the order.

Until 1 July, 1979, APRA licensed the Commission to broadcast by television or radio the works owned by or controlled by APRA in return for a remuneration fixed by reference to Australia's population. Since that date under interim arrangements entered into between APRA and the Commission without prejudice, the permission to use APRA's works has been extended. The rate of remuneration formerly payable has continued to apply.

Before the Tribunal the Commission took a preliminary objection to jurisdiction on the ground that the Commission was an agent or instrumentality of the Commonwealth and as such was protected by s.183 of the Act from infringing copyright when broadcasting or televising works in which copyright subsists. The Commission further contended that in the circumstances of the present case s.183 provided an exclusive code for the fixing by the Tribunal of the terms on which the Commission may use and broadcast works the subject of a copyright.

Section 183 of the Act, so far as it is relevant, is as follows:
"(1) The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the "Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

. . . . . .

(3) Authority may be given under sub-section (1) before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he has a licence granted by, or binding on, the owner of the copyright to do the acts.

. . . . . .

(5) Where an act comprised in a copyright has been done under sub-section (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal."

Reference should also be made to s.7 of the Act which provides that, subject to Part VII, the Act "binds the Crown but nothing in the Act renders the Crown liable to be prosecuted for an offence". Section 183 of the Act is in Part VII. Sections 136 and 154 are in Part VI.

The Tribunal heard argument on the preliminary objection. On 11 June, 1982, it decided that the Commission was not an instrumentality or agency of the Commonwealth and published reasons for that decision. The Tribunal refrained at that stage from making any orders or answering the questions relating to the preliminary objection. The reasons of the Tribunal are annexed to the case which it has stated.

A number of matters, some in my view involving difficult questions, were canvassed in argument. But, by reason of the clear view I have as to the correct answer to question 1, none of these arises for decision. I propose to proceed by determining what I think the answer to that question should be. When that has been done I shall mention some other matters unrelated to its determination.

Question 1 raises for decision the question of whether the Commission is an agent or instrumentality of the Commonwealth for the purposes of s.183 of the Act. It is the Commission's contention that it is. The contrary is put by APRA. In the light of the provisions of s.183 I would not have thought, with respect, that this question was necessarily apt. The essential words in s.183(1) are, "if the acts are done for the services of the Commonwealth". It seems to me that there is ground for the view that the expression "services of the Commonwealth" does not include the "services" of a body corporate which is an agent or instrumentality of the Commonwealth. It is to be observed that, although s.125 of the Patents Act 1952 makes a similar provision to s.183(1) in relation to patents, references to the Commonwealth include references to an authority of the Commonwealth; see s.132.

This matter was not pursued in argument and I express no opinion on it. The fact that it was not argued was apparently because of dicta in the majority speeches of the House of Lords in Pfizer Corporation v. Ministry of Health (1965) A.C. 512. I would not, however, have thought them relevant to the question of whether "services of the Commonwealth" extended to services of a body corporate which was an instrumentality or agency of the Commonwealth. In my opinion they have a different relevance which I shall later mention.

I should add that we were informed that the Commonwealth had not purported, pursuant to s.183(1) of the Act, to authorise the Commission in writing to do "any acts comprised" in any copyright. What the position would be if such an authorisation were made or purported to be made I do not pause to consider.

I return to the question of whether the Commission is an agent or instrumentality of the Commonwealth. A first step in reaching a conclusion is to consider a number of the provisions of the Broadcasting and Television Act 1942("the Broadcasting Act") pursuant to Part III of which the Commission is established. Before mentioning sections in that Part it is relevant to note that the Broadcasting Act deals with a number of important matters unconnected with the establishment and functions of the Commission. These are the establishment of the Australian Broadcasting Tribunal (Part II), the establishment of the Special Broadcasting Service (Part IIIA), the grant of broadcasting and television licences (Part IIIB) and the licensing and regulation of the Commercial Broadcasting Service (Part IV).

For present purposes the more important provisions of Part III are as follows: -

(a) Incorporation and establishment

Section 30 provides that there shall be a Commission to be known as the Australian Broadcasting Commission. It is established as a body corporate with perpetual succession and a common seal, and may acquire, hold and dispose of real and personal property. It is capable of suing and being sued in its corporate name. By s.31 the Commission is to consist of not more than eleven and not less than nine Commissioners, two at least of whom are to be women. The Commissioners are appointed by the Governor-General as part-time Commissioners. One is to be appointed Chairman and another Vice-Chairman. By s.32 a Commissioner holds office for such period, not exceeding five years, as is specified in his instrument of appointment. Commissioners are eligible for re-appointment and hold office subject to good behaviour. Section 37 provides for a number of specified events the happening of any one of which obliges the Governor-General to declare that the office of a Commissioner is vacant. Examples of events specified in the section are a Commissioner becoming permanently incapable of performing his duties and being absent, except on leave of absence granted by the Minister, from all meetings of the Commission held during two consecutive months.

(b) Staff and terms and conditions of employment.

By s.43 the Commission is to appoint a general manager who shall be the chief executive officer of the Commission and shall hold office on such terms and conditions as the Commission determines. The Commission is to appoint such other officers and engage such temporary employees as it thinks necessary. The officers of the Commission are to constitute "the service of the Commission". By s.43(6) the terms and conditions of employment of officers and temporary employees appointed in pursuance of the section are such as are determined by the Commission with the approval of the Public Service Board. Sections 48, 48A, 49 and 50 provide for promotion of officers. An appeal lies against a promotion to a promotions appeal board known as the Australian Broadcasting Commission Promotions Appe 1 Board. The Chairman of the Board is to be appointed by the Governor-General. The Board otherwise consists of an officer appointed by the Commission and an officer nominated by the organisation (i.e. industrial organisation) of which it is appropriate for a person occupying the vacant position concerned to be a member. Sections 56, 57 and 58 provide for disciplinary action in the event of misconduct. Section 56 specifies a number of categories of misconduct and enables the Commission to take various courses of action in respect of the commission of such conduct. An appeal lies to a disciplinary appeal board known as the Australian Broadcasting Commission Disciplinary Appeal Board. It is constituted pursuant to s.58. Its constitution is broadly similar to that of the Promotions Appeal Board except that the chairman must be a person who is or has been a magistrate of a State or Territory. The third member of the Board is to be an officer elected by the officers of the Commission.

(c) Powers and functions of the Commission.

By s.59 the Commission is to provide, and shall broadcast or televise from stations provided in accordance with s.76, adequate and comprehensive programmes "and shall take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programmes". Where the Commission considers it necessary for the proper carrying out of its objects or for any purpose incidental thereto, the Commission may make arrangements for the holding of, or may organise or subsidise any public concert or other public entertainment. By s.60 the Commission is empowered to compile, prepare, issue, circulate and distribute such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as it thinks fit. It may also make, promote, circulate and distribute films and sound recordings of or relating to its programmes and also public concerts and other public entertainment which it has organised or subsidised. It may determine charges payable for its publications, films and recordings "with a view to raising as much net revenue as is practicable, having regard to the proper performance of its functions and to the matter or activity concerned".

By s.61 the Commission may acquire by lease or purchase any land, buildings or other property which it thinks necessary for its purposes, and may also sell, lease or otherwise deal with any property, rights or privileges of the Commission.

It is to provide such studios, offices and other accommodation as are necessary for the performance of its powers and functions under the Act.

Section 64 is as follows:
"Subject to this Act, the Commission shall broadcast or televise free of charge from all the national broadcasting stations or national television stations, or from such of them as the Minister specifies, any matter the broadcasting or televising of which is directed by the Minister in writing as being in the national interest"

By s.65 the Commission is not to televise or broadcast advertisements. By s.66 it is to broadcast daily from all national broadcasting stations regular sessions of news and information. It is to employ an adequate staff both in Australia and overseas for the purpose of collecting the news and information to be broadcast.

By s.67 the Commission is to endeavour to establish and utilise groups of musicians for the rendition or orchestral, choral and band music.

(d) Finances.

Section 68 provides that there are payable to the Commission such moneys as are appropriated by Parliament for its purposes. By s.70 the moneys are to be applied only in payment of amounts properly payable in the performance of its functions and in payment of remuneration or allowances payable to the Commissioners. By s.70B the Commission is not, without the approval of the Minister, to enter into a contract involving the payment or receipt of an amount exceeding $250,000 or such higher amount as may be prescribed.

Section 71 provides for the keeping of proper accounts and s.71B for the auditing of those accounts by the Auditor-General.

By s.72 the Commission is not subject to taxation under any law of the Commonwealth or of a State or Territory.

(e) Technical services

By s.73 the Commission is to provide and operate all the technical equipment required for the purposes of performing its functions. The Minister is to arrange for the provision and operation, for the purposes of the performance by the Commission of its functions, of transmitting stations and certain other categories of station specified in the section.
(f) Miscellaneous

Section 77 and s.78A provide as follows:
"77. Subject to this Act, the Minister may, from time to time, by telegram or in writing, prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, speci fied in the notice, or may require the Commission to refrain from broadcasting or televising any such matter."

"78A. Where the Minister has given a direction under section 64 or has prohibited the broadcasting or televising of any matter or made any requirement under section 77, he shall, within 7 sitting days of giving such direction or notifying such prohibition or requirement, report the same in writing to both Houses of Parliament and shall give the reasons for such direction, prohibition or requirement, as the case may be."

Finally, s.78 provides that the Commission shall, as soon as possible, but not later than six months after the expiration of each financial year prepare a financial statement and forward it, together with a report on the operations of the Commission during that year, to the Minister for presentation to both Houses of Parliament. The report is to include, inter alia, particulars of each transmission arranged at the written direction of the Minister in pursuance of s.64 and each case in which the minister has exercised the powers conferred on him by s.77. The report is also to include particulars of "whether the receipt and expenditure of moneys, and the acquisition and disposal of assets, by the Commission during the year have been in accordance with this Act".

That completes my account of the relevant statutory provisions. The question of whether the Commission is an instrumentality or agency of the Crown is to be determined by a consideration of those provisions with a view to determining Parliament's intention as to what the position was to be. Assistance is to be found in a multiplicity of cases decided here and in England many of which were referred to in argument. But in the end it is a matter of looking to the words which Parliament has used.

The authorities do provide indications of the type of consideration which will point, or not point, to a particular body being the Crown or one of its agencies. But because each case depends upon its own circumstances, there is no clear guiding principle or rule. In Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.) (1979) 53 A.L.J.R. 614 Stephen J. said (p.619):
"I have not expressed these various considerations (the considerations to be taken into account in determining whether a body is the Crown) in terms of specific 'tests' although the precedent authorities provide fertile ground for the development of the concept of such 'tests'. I have, of course, had regard to those authorities, while recognizing that the primary task is that of statutory interpretation rather than any mechanical application of supposed tests."

In the reasons of the Tribunal in the instant case prepared by Lockhart J. it is said:
"Matters to be considered include the question whether the corporation fulfils a governmental or non-governmental function; the capacity of the Government to control its activities; financial autonomy; the right of appointment and dismissal of the members of the body and of its staff by the Government; whether it has duties to furnish information or accounts to the Government; and its power over assets in its ownership or control."

I would respectfully agree with that list as being, subject to one matter, an exhaustive list of the matters it is relevant to take into account in the present case. I would add a further matter relied upon by senior counsel for APRA before us, namely, the question of whether the property of the Commission is held for the Commonwealth.

Although it is not always decisive, the question of control is usually of importance. It was important to Stephen J. in the Superannuation Fund Investment Trust case earlier cited. After the passage quoted from his judgment he said that he had placed most weight upon the entire independence of the members of the Trust in relation to their investment function. His Honour added, "This appears to me of considerable importance and to have been so treated in many of the precedent cases" (p.619). Amongst the cases his Honour cited were Grain Elevators Board (Vict.) v. Dunmunkle Corporation (1946) 73 C.L.R. 70, and Inglis v. Commonwealth Trading Bank of Australia (1969) 119 C.L.R. 384. In the former case Latham C.J. said (p.76):
"Where persons or an incorporated authority are subject to direct ministerial control so that they act under the direction of a Minister, such persons or authorities act on behalf of the Crown and any provision, whether express or implied, for Crown exemption is applicable to them: . . . . . . . . .
But if a board is a body independent of the Government with discretionary powers of its own, so that it is not a mere agent of the Government, then such a body does not represent the Crown."

In the Superannuation Fund Investment Trust case four judges were equally divided on the question of whether the Trust was an agency of the Crown. Barwick C.J. (supra at p.615) and Mason J. (supra at p.622) thought that it was the Crown. Stephen J. (supra at p.619) and Aickin J. (supra at p.627) thought that it was not. But the judgment of Mason J. (in whose judgment on the point Barwick C.J. agreed) does not suggest that he did not regard control as an important factor. Amongst other things he said (p.622):
"Although the Trust is a separate corporate entity the control which the Crown has over its membership and its activities shows that it is an alter ego of the Crown. Thus its members are appointed and liable to removal by the Executive Government, it is bound to furnish information to the Treasurer at his request and it must submit its annual report and financial statements to the Treasurer after they have been audited by the Auditor-General. The Trust, in determining the investment policy which it will pursue within the prescribed investments which it is authorized to make (see s.42(2) and (4)), is free of directions by the Treasurer and the Government, but this in itself does not show that it has been established as a body independent of the Crown."

Counsel for the Commission concentrated upon a passage in the judgment of Kitto J. in Inglis v. Commonwealth Trading Bank of Australia (supra at pp.337-338) where his Honour, who wrote the leading judgment, said:
"The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally accepted governmental character may well help in the ascertainment of the legislative intention. The question is rather what intention appears from the provisions relating to the respondent in the relevant statute; is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the "field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot realistically be applied to that which the corporation does?"

He submitted that the Act here disclosed an intention that the Commonwealth should operate in the broadcasting and television field through a corporation, that is the Commission, created for the purpose. Thus it was the Commonwealth through the agency of the Commission which was engaging in the various functions of broadcasting and television which are provided for in the Broadcasting Act.

Counsel seemed to say that the way the matter was put by Kitto J. was a way somewhat different from the way the question has been posed in other cases. I do not agree that that is so and it is to be observed that Stephen J. in the Superannuation Fund Investment Trust case did not regard the case as at all in any different category from many others. The other type of corporation posed in the test propounded by Kitto J. is a corporation intended to perform its functions independently of the Commonwealth, "that is to say otherwise than as a Commonwealth instrument".

It is to be observed that in his analysis of the problem Kitto J. goes on to take into account the same sort of considerations, particularly control, as are taken into account in many other authorities. It will be remembered that Stephen J. referred to his Honour's judgment in support of his view that control was a matter of "considerable importance". The passage from the judgment of Kitto J. to which his Honour refers is one where he demonstrates that in the event of a disagreement concerning policy the Commonwealth Trading Bank might eventually have to surrender to the wishes of the Governor-General acting with the advice of the Executive Council (p.340).

There is not here, as there is in some statutes providing for the incorporation of a statutory authority, any power vested in the Minister to control the activities of the Commission. I say that not unmindful of the provisions of ss.64 and 77 of the Act of which I shall say more a little later. The Commissioners are appointed for a term and may not be removed from office except on grounds of bad behaviour or the specific grounds mentioned in s.37 earlier referred to. The Commission is empowered to appoint the general manager of the Commission. He is to be the chief executive officer of it. The Commission has wide powers and discretions to discharge the duties cast upon it by the Act. The staff it employs are employees of the Commission and not of the Commonwealth. That remains the position notwithstanding that they cannot be appointed without the approval of the Public Service Board (s.43(6)).

Subject to what needs to be said about ss.64 and 77 of the Broadcasting Act, none of the functions and powers of the Commission is subject to control by the Minister or the Executive Council, nor is any of its staff subject to that control in any of the tasks they undertake. In my opinion ss.64 and 77 have a very limited operation and their presence in the Act does not qualify in any general way the statement just made. The first concerns matters which are directed by the Minister in writing "as being in the national interest". I would not wish to provide any exhaustive definition of what may be included as being in the national interest, but, in general terms, I would think that the matters would be limited to news or information concerning threats to the security of the country, whether from an internal or an external source, and natural disasters or threats to the general health of the community due to some catastrophe. Section 77 confers a wider power. Nevertheless it subjects the Commission, not to instruction as to what it shall broadcast or televise, but what it may not broadcast or televise.

It seems to me, when considering the Commission's argument based on these sections, that one should not overlook that the Act in Part III is concerned to set up a Commission which is designed, generally speaking, to provide broadcasting and television services throughout the country. The Commission is obliged by s.66 to broadcast news services with the frequency there specified. We live in a community which is democratic and in which the media, not only the press, enjoy a freedom to disseminate news and make comment on news without the restriction which exists in countries which are not so fortunate. The Broadcasting Act should be construed with it in mind that that is the kind of society which we have. Section 77 does confer upon the Minister a substantial power, but in the circumstances it is one which he might not be expected to exercise very often and then only in very serious circumstances. It is to be remembered that s.78A of the Broadcasting Act requires the Minister to notify action taken under either section to each House of Parliament within seven sitting days after action has been taken. Section 78(3) requires the Minister to include in his report to Parliament particulars of each transmission arranged at the written direction of the Minister in pursuance of s.64 and of each case in which the Minister has exercised the powers conferred on him by s.77.

For the above reasons I do not consider that ss.64 and 77 require the view to be taken that the Commission is under the control of the Minister.

Next I wish to say something about functions. The authorities show that a body, subject to other considerations, will be more likely to be regarded as the Crown or an instrument thereof if it is performing an ordinary function of government. That was a matter referred to in the judgment of the Acting Chief Justice in Bradken Consolidated Limited v. Broken Hill Proprietary Co. Limited (1979) 145 C.L.R. 107. His Honour referred to the fact that it had always been recognised in Australia that the conduct of railways was a function of the Governments of the States (p.115). His Honour went on to say:
"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."

The matter was referred to also by Kitto J. in his judgment in the Inglis case. He did not count it as at all decisive. I refer to the opening words of that portion of his judgment which I have earlier cited. It was for that reason that I did not put it to the forefront of the considerations which I took into account in F. Sharkey & Co. Pty. Limited v. Fisher (1980) 33 A.L.R. 173. I refer also to the judgment of Gibbs C.J. in Townsville Hospitals Board v. Council of the City of Townsville 56 A.L.J.R. 789 at p.791. Nevertheless, if one finds that the functions and powers of a statutory authority are not traditionally or historically those of government, that provides a further reason why one would not find it to be the Crown or one of its instrumentalities.

The Commission was first established in 1932. By then, broadcasting, although still in its infancy, was in existence being conducted by persons in their private capacities. Thus broadcasting has always been a commercial activity in Australia. So has television which was introduced in 1956. There is no warrant for taking the view, at least in Australia, that the provisions of broadcasting and television services is an ordinary function of government.

In the light of the submission made on behalf of the Commission based on the dictum of Kitto J. in the passage earlier cited from his judgment, that conclusion has further significance. He there posed the question whether there was, on the one hand, an intention that the Commonwealth should operate in a particular field through a corporation created for the purpose; or whether, on the other hand, there was an intention to put into the field a corporation to perform its functions independently of the Commonwealth. In the light of the various provisions of the Broadcasting Act I have reached the clear conclusion that the Commission falls into the latter category and not the former.

A further matter which reinforces me in that conclusion is that neither the property held by the Commission nor surplus revenue it may have is held by it for the Commonwealth or the Crown. The fact that the property of a statutory body is to be held on trust for the Crown has always been one of the indicators pointing to the fact that the body is the Crown. Here the indicator points the other way.

For the reasons given I would answer the first question in the negative. It follows that question 2 should also be answered in the negative and that the Tribunal does have jurisdiction to deal with the reference before it. That is, of course, upon the assumption that the licence scheme falls within the definition of that expression in s.136(1) of the Act. That was not a matter which was before us.

As mentioned earlier there were some further matters raised in argument which, in the light of my conclusion, do not require decision. I mention some of them. Firstly, it may be possible for an act to be done for the services of the Commonwealth within the meaning of s.183 of the Act, notwithstanding that the Commission is not the Commonwealth nor an agent or instrumentality thereof. Such a situation might arise if there were broadcast or televised something which was plainly broadcast or televised for the services of the Commonwealth, e.g. a radio or television programme put on for the purposes of the Commonwealth Government. The essential question, however, is whether the Commission is an organisation or person for the purposes of s.154 of the Act. It was its submission that it was not because everything it did by way of infringement of copyright fell within s.183. If it is not the Commonwealth, or an agency thereof, that cannot be correct.

An alternative submission relied upon by counsel for APRA was that, even if the Commission were the Commonwealth, there was nevertheless manifested an intention that Part VI of the Act including s.154 applied to it, notwithstanding the fact that s.183 would also apply. Reference was made to s.7 of the Act earlier set out and also to the fact that the Commission itself, Commonwealth or not, could be a licensor for the purposes of s.154. If it could be a licensor, why should it not also be an organisation for the purposes of the section? That is not a matter which, in my opinion, in the light of the answer I would give to question 1, need be decided and I express no view upon it.

Finally, I should say more about Pfizer's case (supra). It may have been open to APRA to argue that in no sense could the broadcasting and television services provided by the Commission be provided by it for the "services of the Commonwealth". Rather, so it could be said, they are provided for the services of members of the public receiving the Commission's transmissions. Senior counsel for APRA felt that argument concluded against him by the majority opinions of the House of Lords in Pfizer's case. Lord Reid said that he thought it a false dichotomy to treat some patented articles as made or used for the benefit of the department or service which uses them, and others as made or used for the benefit of those persons outside the service who may derive benefit from their use ((1965) A.C. at p.534). Later he said that sometimes, as in the case of the armed services, the use of a patent will benefit the whole community, sometimes such use will benefit a particular section of it and sometimes it will benefit particular individuals. His Lordship said that he could not see any good reason for making a distinction between one such case and another (p.535). Like opinions were expressed by Lord Evershed (pp.543-544) and Lord Upjohn (pp.551-552); contrary opinions were expressed by Lord Pearce (p.550) and Lord Wilberforce (pp.570-571).

In the result I would, for the reasons earlier given, answer the questions in the stated case as follows:
1. No.
2. No
3. Yes, assuming the licence scheme falls within the definition in s.136(1) of the Act.
The Commission should pay the costs of the reference.

[1982] FCA 272

15 DECEMBER 1982