Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation

[1992] HCA 53

HIGH COURT OF AUSTRALIA

Mason CJ, Brennan and Gaudron JJ

RE ANTI-CANCER COUNCIL OF VICTORIA AND OTHERS, EX PARTE THE STATE PUBLIC SERVICES FEDERATION.(1992)

175 CLR 442

28 October 1992

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Industrial dispute—Registered organization—Union—Eligibility rule—Persons employed in public service of Victoria or in State instrumentality or other undertaking carried on by corporations under State statute—Anti-Cancer Council—Whether State instrumentality—Whether undertaking carried on by corporation under State statute—Industrial Relations Act 1988 (Cth), s. 4(1) "Industrial dispute"—Cancer Act 1958 (Vict.), ss. 4, 5(1).

Decision

MASON C.J., BRENNAN AND GAUDRON JJ. The State Public Services Federation ("the SPSF") is an organization of employees registered under the Industrial Relations Act 1988 (Cth). Subject to exclusions to which some reference will later be made, its Rules relevantly provide, in r.3(G), that, in Victoria, the persons eligible to be members are:

"Persons employed in the Public Service of Victoria or employed in any State instrumentality or other undertaking carried on by public authorities, commissions, or corporations under any State charter, statute, enactment, or proclamation of the State of Victoria".

2. In 1988 the SPSF served a log of claims on various bodies, including the Anti-Cancer Council of Victoria ("the Council"), with respect to the wages and conditions of their employees. That log gave rise to proceedings C No. 31310 of 1988 in the Conciliation and Arbitration Commission and, in May 1988, the Commission recorded the existence of a dispute between the SPSF and various bodies, including the Council. An application to revoke that finding as it affected the Council was dismissed by Deputy President MacBean on 8 May 1990. The Council then appealed to a Full Bench of the Industrial Relations Commission ("the Commission"). On 4 February 1991, the Full Bench held that the Council was neither a State instrumentality nor an undertaking carried on by a public authority or corporation under a State statute as referred to in r.3(G) of the SPSF Rules and, hence, was not party to the dispute generated by the log of claims. The original finding of dispute was varied accordingly.

3. The SPSF seeks mandamus and certiorari directed to the Commission and the members who constituted the Full Bench for the hearing and determination of the Council's appeal, arguing that, for the purposes of r.3(G), the Council is a State instrumentality or, alternatively, its activities are an undertaking carried on by a public authority or corporation under a State statute, namely, the Cancer Act 1958 (Vict.) ("the Act"). The Council contests each of these propositions.

4. The Council is established by s.4 of the Act and has the objects set out in s.5(1), namely:

"(a) to co-ordinate in Victoria all activities relating to research with respect to cancer and allied conditions and in particular research into the causation, prevention and treatment of cancer and allied conditions; and

(b) to undertake, promote and subsidize such research; and (c) to - (i) provide information and advice; and (ii) develop, co-ordinate and participate in educational programs -

relating to the prevention, detection, treatment and management of cancer and allied conditions; and

(d) to promote, provide and co-ordinate services for the support and welfare of persons suffering from cancer and allied conditions; and

(e) to investigate whether it is advisable to establish special cancer clinics within existing hospitals or similar institutions and, where it is advisable to do so, to establish such clinics; and

(f) to act in association with any organization having objects similar to the objects of the council."

5. The Act establishes various committees of the Council ((1) The executive committee (s.12(1)); the finance committee (s.14(1)); the medical and scientific committee (s.16(1)); the appeals committee (s.18(1))), specifies the manner in which they are to be constituted ((2) The constitution of each committee listed in fn.(1) is set out in ss.12(2), (3); 14(2), (3); 16(2), (2A), (3); 18(2) respectively) and provides for them to exercise various powers and functions with respect to the Council's affairs ((3) The powers and functions of the committees listed in fn.(1) are set out in ss.13; 15; 17; 18(3), (4) respectively). Through these committees, the Council engages in or has engaged in various activities falling within the objects set out in s.5 of the Act, including the organization and running, in conjunction with the Health Commission of Victoria, of the Victorian anti-smoking program. No specific duties are imposed on the Council, but the Act imposes a duty on the part of others, including persons in charge of hospitals and pathology laboratories, to report all cases of cancer to the Council ((4) s.60). On the basis of these reports, the Council keeps and maintains the Victorian Cancer Register.

6. The Council receives approximately 4% of its funds - a contribution towards the costs of maintaining the Cancer Register - from the Government of the State of Victoria; the rest comes from appeals and charitable contributions. The Act regulates the general conduct of the Council's affairs, providing as to the procedure for its meetings and the meetings of its committees ((5) ss.20, 21, 22, 23, 24, 25), the investment of its funds ((6) s.27) and the auditing of its accounts ((7) s.29). If the Governor in Council directs, its accounts must be audited by the Auditor-General ((8) s.29(3)). And the Act provides for the audited accounts, together with a general report of the proceedings and activities of the Council and its committees and a full account of its receipts and expenditure, to be laid annually before both Houses of Parliament ((9) s.11).

7. It is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning ((10) Reg. v. Neil; Ex parte Cinema International Corporation Pty. Ltd. (1976) 134 CLR 27, per Gibbs J. at p 31; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63 per Gibbs J. at p 73; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, per Mason J. at p 587; Reg. v. Isaac; Ex parte Transport Workers' Union (1985) 159 CLR 323, per Gibbs C.J. at p 335 and Wilson J. at p 340. And see generally Reg. v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654.). However, the expression "State instrumentality" is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose ((11) Electricity Trust of S.A v. Linterns Ltd. (1950) SASR 133, per Ligertwood J. at pp 139-140, cited with approval in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, per Barwick C.J. at p 133. See also Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation ("the Municipal Employees' Case") (1919) 26 CLR 508, per Isaacs and Rich JJ. at pp 530-531.). And that is so even if it is neither a servant nor an agent of the State ((12) The Municipal Employees' Case. See also Launceston Corporation v. The Hydro-Electric Commission (1959) 100 CLR 654, per Dixon C.J., Fullager, Menzies and Windeyer JJ. at pp 662-663.).

8. The only activity which might be thought capable of constituting the Council an instrumentality of the State of Victoria is that involved in receiving the cancer reports required by the Act and in keeping and compiling the Cancer Register. Although the Act imposes an obligation on hospitals and others to report cases of cancer, it imposes no obligation on the Council with respect to the reports it receives or with respect to the Cancer Register ((13) The Act does set out, under s.62(5) several functions of "an organization that maintains a prescribed register" including the following up of positive results from cancer tests and the sending of reminder notices when persons whose names appear in the register are due for cancer tests. A "prescribed register" is defined in s.59(1). The definition does not include the Victorian Cancer Register.). In these circumstances and even though the Council receives government funds as a contribution towards covering the cost of maintaining the Cancer Register, the Act's requirement with respect to reporting must be viewed as directed to facilitating the Council's other activities and not as the source of a function to be performed for or on behalf of the State. Accordingly, the Council is not a State instrumentality as that expression is used in r.3(G) of the SPSF Rules.

9. The argument that the activities of the Council constitute an "undertaking carried on by (a public authority) ... or (corporation) under (a) State ... statute" was countered, in the first instance, by a submission that r.3(G) is concerned with authorities and corporations that are fairly described as State authorities and corporations in much the same way or for much the same reason that a body is characterized as a State instrumentality. There is, we think, no warrant for reading a limitation of that kind into r.3(G). Given that the undertakings which fall within r.3(G) are confined to those "carried on by public authorities ... or corporations under (a) State ... statute", a qualification of the kind suggested would render those authorities and corporations virtually indistinguishable from State instrumentalities and would deprive that part of r.3(G) of almost all operation.

10. It was also argued on behalf of the Council that, properly construed, the expression "public authorities, commissions, or corporations" in r.3(G) is a compendious expression in which "public" describes an essential feature of each of those bodies. That argument is supported by ordinary grammatical usage and by context, the eligibility rule being concerned, in the main, with what is generally identified as public sector employment.

11. The only matter that tells against a construction of r.3(G) confining its operation to commissions and corporations which have some public feature is the width of the exclusions stated with respect to employees in Victoria. Persons employed by bodies which seem to fall within the heartland of r.3(G) are excluded from eligibility, including persons employed by the Sporting and Gaming Control Boards and the Departments of Sport and Recreation. On the other hand, the exclusions extend to persons who might be thought eligible for membership only on the very broadest interpretation of r.3(G), including "(p)ersons employed by the University of Melbourne as academic staff." However, the exclusion of the academic staff of Melbourne University says very little about the scope of r.3(G) for, save for certain named universities (none of which is in Victoria), there is an Australia wide exclusion of university employees.

12. The stated exclusions from eligibility for membership of the SPSF, both for Victoria and for Australia as a whole, are diverse and wide ranging. They form no pattern and, hence, provide no basis for interpreting r.3(G) one way rather than another. In these circumstances and bearing in mind the SPSF's correct title - the State Public Services Federation - r.3(G) should, in our view, be construed as applying to commissions and corporations which have some public feature of the kind that marks an authority as a public authority.

13. The Council is clearly a corporation and, thus, it is not necessary to consider whether it has or exercises power over the affairs of others or has some other exceptional power that would identify it as an authority in the accepted sense of that word when used in a context of the kind in which r.3(G) is found ((14) As to the nature of the powers that indicate that a body is an authority of that kind see Committee of Direction of Fruit Marketing v. Australian Postal Commission (1980) 144 CLR 577, per Gibbs J. at p 580, per Mason and Wilson JJ. at pp 585, 593-595. See also Western Australian Turf Club v. Federal Commissioner of Taxation (1978) 139 CLR 288, at pp 292, 296-298, 309-312.). The only question is whether it has some public feature which brings it within r.3(G). However in answering that question, it is convenient to have regard to some aspects of the cases concerned with public authorities, the expression "public authorities" also being one that has much the same meaning in popular usage as in a legal context.

14. The question whether a body is a public authority is one of fact and degree which often requires a balancing of the various features of the body concerned ((15) See Western Australian Turf Club (1978) 139 CLR, per Stephen J. at p 296, citing Marshall v. Scottish Milk Marketing Board (1956) SLT 162, per Viscount Simonds at p 167 and Bradford Corporation v. Myers (1916) 1 AC 242, per Viscount Haldane at pp 250-251.). In that process, it may be decisive that private individuals have a financial interest in its profits or assets ((16) See, for example, Western Australian Turf Club (1978) 139 CLR, per Stephen J. (with whom Barwick C.J. and Jacobs J. agreed) at pp 298-299.), or that its public functions are merely incidental to its private pursuits ((17) See, for example, ibid., per Aickin J. at p 313.). Or it may be important that its powers derive from a private or non-statutory source ((18) See, for example, Incorporated Council of Law Reporting for the State of Queensland v. Federal Commissioner of Taxation (1924) 34 CLR 580. See also Committee of Direction of Fruit Marketing v. Australian Postal Commission (1980) 144 CLR, per Gibbs J. at p 580.), although that consideration is not necessarily decisive ((19) See Western Australian Turf Club (1978) 139 CLR, per Stephen J. at p 297.).

15. In Renmark Hotel Inc. v. Federal Commissioner of Taxation ((20) (1949) 79 CLR 10, at p 18.), Rich J., at first instance, said that for a body to be a public authority "it should carry on some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community and that it should have some governmental authority to do so". His Honour's decision was upheld on appeal, emphasis being given to the need for "public functions" ((21) ibid., per Latham C.J. at p 23, citing Griffiths v. Smith (1941) AC 170, per Lord Porter at p 205.), "duties to be exercised for public objects" ((22) ibid., per McTiernan J. at p 23.) or "power ... to act on behalf of the public or the State" ((23) ibid., per Webb J. at p 24, citing Isaacs J. in the course of argument in Incorporated Council of Law Reporting for the State of Queensland v. Federal Commissioner of Taxation.). However, this last feature would seem to indicate a body of the kind that is usually identified as a state or public instrumentality.

16. The most significant features of the Council are undoubtedly those which attracted the attention of the Full Bench of the Commission, namely, that it is a charitable organization which is substantially independent of government and which depends, to a large extent, on volunteers for its management and staffing. However, neither its independence nor its charitable nature bears on the question whether the Council has some public feature which brings it within r.3(G) of the SPSF Rules.

17. Notwithstanding that the maintenance of the Cancer Register does not constitute the Council a State instrumentality, its activities in that regard may fairly be viewed as a public service. That and other activities, such as the anti-smoking program, are directed to important aspects of public health. The Council's objects are designed to promote the interests of the public. And the Act governs its affairs in a way that ensures a large measure of public accountability. Its existence and powers derive from an Act of Parliament which governs its membership and the composition of its committees. Some members of the Council and some members of its committees are members ex officio because of the public positions which they hold ((24) s.6(1)(a).) and others are appointed by the Governor in Council as representatives of particular sections of the public ((25) s.6(1)(b).) or on the nomination ((26) s.6(1)(c).) or recommendation of the Minister of Health ((27) s.6(1)(d).). In our view, these features indicate that the Council has a public aspect sufficient to constitute it a corporation of the kind referred to in r.3(G).

18. The final matter to be considered - and one that was not really in contest in this Court - is whether the activities of the Council constitute an "undertaking carried on ... under (a) State ... statute". It is not disputed that its activities are of a kind that can fairly be described as an undertaking. Although these activities are such that they might be carried out pursuant to powers having a different source or a different legal framework, the Act is the immediate source of the Council's powers and that, in our view, is sufficient for its activities to be regarded as activities "carried on ... under (a) State ... enactment."

19. Certiorari should be granted, directed to the Commission and the members of the Full Bench constituted for the hearing and determination of appeal C No. 31537 of 1990, for the removal and quashing of the decision and order of the Full Bench of 4 February 1991. Mandamus should be granted, directed to the Commission, requiring it to hear and determine, in accordance with law, the industrial dispute the subject of proceedings C No. 31310 of 1988, so far as that dispute concerns the Council.

Orders

Order that a writ of certiorari issue to the Australian Industrial Relations Commission and the members of the Full Bench of the Commission constituted for the hearing and determination of appeal C No. 31537 of 1990, directing the removal and quashing of the decision and order of the Full Bench of 4 February 1991.

Order that a writ of mandamus issue to the Commission directing it to hear and determine, in accordance with law, the industrial dispute the subject of proceedings C No. 31310 of 1988, so far as that dispute concerns the Anti-Cancer Council of Victoria.