Re Anti-Cancer Council of Victoria & Ors; Ex parte The State Public Services Federation

[1992] HCATrans 96

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S23 of 1991
In the matter of -

An application for writs of

Mandamus and Certiorari

directed to THE AUSTRALIAN

INDUSTRIAL RELATIONS

COMMISSION

First Respondent

JUDITH JACQUELINE COHEN

Second Respondent

COLIN GEORGE POLITES

Third Respondent

JAMES JOHN MAHER

Fourth Respondent

ANTI-CANCER COUNCIL OF

VICTORIA

Fifth Respondent

THE STATE PUBLIC SERVICES

FEDERATION

Prosecutor

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 MARCH 1992, AT 10.20 AM

Copyright in the High Court of Australia

Cancer 1 20/3/92

MR F.L. WRIGHT, QC:  May it please the Court, I appear with

my learned friend, MR M.J. WALTON, for the

prosecutor. (instructed by Jones Staff & Co.)

MR C.N. JESSUP, QC: If the Court pleases, I appear with my

(instructed by Minter Ellison)

learned friend, MR N.J.D. GREEN, on behalf of the respondent.

MASON CJ: Yes, Mr Jessup. The Deputy Registrar has been informed by the Australian Government Solicitor,

who appears for the Honourable Justice Cohen,

Deputy President Polities and Commissioner Meagher

of the Australian Industrial Relations Commission,
the 1st, 2nd, 3rd and 4th respondents in the

proceedings, that they do not wish representations

to be made on their behalf and that they will abide

by any order of the Court.

Yes, Mr Wright.

MR WRIGHT: 

Could I hand up the Prosecutor's outline of

submissions. These proceedings raise a short but,
from the Prosecutor's point of view, a very

important point.  The point is whether the 5th

respondent, the Anti-Cancer Council of Victoria, is
an employer or body within rule 3(G) of the

Prosecutor's eligibility rules. For convenience I will refer to the first four respondents as either

the respondents or the Commission and so far as the
5th respondent, the Anti-Cancer Council of
Victoria, probably by use of the word Council or

its initials.

The point that I have mentioned requires a consideration of whether the Council is a State instrumentality or other undertaking, carried on by

public authorities or corporations under any State
statute of the State of Victoria and, in using that

formulation, I quote those words from rule 3(G),

which are relevant to the issues in this case. The

rule is set out in the application book at page 50

on the left hand side of that page at about

point 7.

It is submitted that the application for prerogative relief should be granted because of the

matter set out in paragraph 2 of the outline. That

is that the Commission adopted an erroneous and

restrictive approach of the construction of
rule 3(G); secondly, that it did not thus apply the

principles applicable to a construction of union
eligibility rules; thirdly, it failed to hold that

the Council was a public authority within the terms

of rule 3(G); fourthly, it failed to hold that the

Council was a corporation under any State statute

within that rule; and lastly, it failed to hold

Cancer 2 20/3/92

that the Council was a statutory instrumentality,

again within the terms of that rule.

Can I invite the Court's attention to rule

3(G) which, as I said, is set out at page 50 of the

application book. It is submitted that the rule

should be construed by reference to five important

considerations. Firstly, that each phrase in the

rule should be given weight and meaning. Secondly,

the structure of the rule is most important. It is

clearly structured by initial reference to the
heart of Crown employment, relevantly the Victorian

Public Service, and then moves away from that heart or centre to the periphery to areas on the margins of public employment.

Thirdly, the structure gives the clue to the

purpose of the rule. Its manifest purpose is to

cover persons employed in public employment in the

broader sense. The fourth consideration is,

perhaps at the risk of being trite, the usual

generosity of approach as to such rule should be

adopted. Perhaps I could just pause at that point

and say this: the prosecutor submits that on, even
the most literal view of the meaning of the words
of the rule, the Anti-Cancer Council of Victoria is

covered, but if need be of course we rely upon the

authorities that are available in this area. And

the last of these five considerations is that the

word "public" only qualifies the word "authorities"

in the rules and not the words "commissions" or

"corporations".

That last point really derives from two reasons or two factors. Firstly, the phrase "public authorities" is a commonplace and is also a

term of art, whereas the phrase "public

commissions" is neither. Secondly, one does not

need to read those words, that is the words

"commissions" or "corporations", as qualified by

the word "public" because they are in fact

qualified by the phrase "under any State statute"

et cetera.

Now, paragraphs 6 to 9 of our outline deal

fairly discursively with the errors we say were

made by the Full Bench. The reasoning of the Full

Bench covered some two and a third pages of its

decision. The decision is to be found commencing

in volume 1 of the application book at page 223,

the reasoning commences at line 20 on page 230 and

continues to the foot of page 232.

BRENNAN J:  Mr Wright, can I just interrupt you for a

moment? What is the effect of section 101(3) of

the Industrial Relations Act? Clearly, it cannot

Cancer 3 20/3/92

preclude the jurisdiction of this Court under

section 75(v) of the Constitution. What effect

does it have so far as it goes? Was this in the

old Act, this provision?

MR WRIGHT:  I do not think so, Your Honour, but I could be

corrected on that. But, Your Honour, it would be

no different to the privative provision in terms of

its possible effect in this Court.

BRENNAN J:  The question is whether it has the same effect

as the privative provision.

MR WRIGHT:  The sometimes helpful table in the CCH volume

suggests that this is the equivalent of

section 60(2) of the former Act, so although it is

not to be found in, for example, section 24 or

subsequent sections which are the rough

counterparts of section 99 and following, if the authors of that table are correct, then it would

have no different effect. It is simply a matter of

redrafting and a different placement of the

particular section or provision.

We would submit that it cannot stand in the

face of this Court's jurisdiction in terms of

section 75(v) of the Constitution and one would

have to doubt, in the light of the judgment of this

Court in O'Toole v Charles David, as to its utility

in many other courts such as the Federal Court in

proceedings under section 178 for enforcement of

awards.

BRENNAN J:  Does it raise a question as to whether the

jurisdiction of the Commission is extended beyond

what the literal terms of the first conferring of

jurisdiction might indicate to cases where the

Commission in the purported exercise of its

jurisdiction bona fide determines, yes or no,

whether there is an existing industrial dispute?

MR WRIGHT: In my submission, no, Your Honour. Its purpose

is to seek to make immune the finding of the

Commission in certain respects, such as perhaps in

proceedings which might be relevant before the

Federal Court as to questions of summons of persons to the dispute; proceedings, for example, before

State courts and tribunals where the existence of a
federal dispute may be relevant to the injuncting

or prohibition of proceedings in State courts or

tribunals, matters such as that. It would not go

so far, in my submission, as to affect the

situation in this Court.

BRENNAN J: Yes.

Cancer 4 20/3/92

MR WRIGHT:  I will have to, Your Honour, if I could say

this, have a comparison made of the old and the new

Act to ascertain whether what I have relied upon in

the table to the Act is, in fact, correct or not.

I frankly do not know, but it does appear to be

simply a moving, as it were, of a section from the

former section 60, the privative provision, to a

different part of the Act, perhaps just simply as a

matter of tidiness.

BRENNAN J: Yes, it may be a question of considering whether

the authorities that have construed the old

section 60 can be applied mutatis mutandis to this

subsection.

MR WRIGHT:  That certainly would be my submission,

Your Honour, but I confess that it is a submission made not without a full examination of the

materials, Your Honour.	I am having the previous
Act sent for, if it please the Court.	I am in the

Court's hands as to whether I proceed further.

BRENNAN J: No, you proceed. That was lobbed on you, that

proposition.

MR WRIGHT:  I accept that, Your Honour.

MASON CJ: But it is still there.

MR WRIGHT:  I accept that, Your Honour. If I could seek to

come back to it at some convenient point. I was

making a submission that the Full Bench's decision,

with respect, amounts to a most unsatisfactory set

of reasons for the decision it came to. The Full

Bench formulated certain tests in terms of the

Prosecutor's rule and they are to be found variously through the two to three pages of its

reasons. For example, the first test is elaborated

at lines 25 and following on page 230.	The test
there enunciated is:

eligible for membership of the SPSF persons	that the rule should be construed as making
employed in -

and I leave out reference to the Public Service -

or in any State instrumentality of State

undertaking in the nature of a public

authority, commission or corporation.

Perhaps if I could then go to the second

formulation - that is to be found in the first

three lines at the top of page 231, where the test

is in terms of:

Cancer 5 20/3/92

a State instrumentality or as a State

undertaking carried on by a public authority.

The penultimate test, or indicia, is to be found at page 232 line 19, where there is reference

to the Council being:

a charitable organisation -

And finally, at line 23, on the same page, there is

reference to it being:

a body substantially independent from

government -

At no stage of its reasons did the Full Bench

analyse the various aspects of rule 3(G); it did

not give any weight to rule 3(G)'s separate

elements. When it sought to paraphrase the rule,

it did so erroneously. For example, it inserted

the word "State", before the word "undertaking" in

place of the words that actually appear; namely the

words "any other". In our submission, that had two

possible effects: it either lessened the

significance of the much wider phrase, "any other", in terms of any other undertaking, or alternatively

reversed it by substituting for the much wider

formulation of "any other undertaking", the

narrower one of "State undertaking".

Importantly, there is no analysis of the

objects or powers of the Anti-Cancer Council of

Victoria, which are to be found significantly in

sections 5 and 60 of the Cancer Act 1958 Victoria.

Indeed, there was no reference to section 60 in its

decision at all.

MASON CJ:  But you are committing a similar error, are you

not, by importing into the first part of

clause 3(G) the word "any".

on, but it is not in the first part of the clause, "Any" appears later

is it? It is "any State instrumentality or other

undertaking". Admittedly it is a very badly

drafted clause.

MR WRIGHT: Certainly, Your Honour. In my submission, in

terms of the lack of any article, definite or

indefinite, before the phrase "other undertaking",

it would be my submission that one would see the

article "any" being referable to both "State

instrumentality" or "other undertaking" and that is

the construction for which we contend, but

Your Honour, could I say this, the force of our

argument really is not affected whether the word

"any" is as it were referable to both phrases or

not. Certainly there was no warrant, we say, to

Cancer 6 20/3/92

substitute, as it were, for the word "other" the

word "State".

Now, as to the two tests the Full Bench

elaborated some three-quarters of the way down

page 232, it appears to have taken the view that

those tests were decisive in terms of the rule,
when in fact they were quite neutral factors.

Further, the factors listed in the numbered

paragraphs on pages 231 to 232 of the decision were

referred to almost in lieu of reference to the
relevant statutory provisions, and the effect of

the reference was to read down such provisions or,

on one view, even out of consideration altogether.

I shall return to these factors later.

It is sufficient to note here that the

approach taken by the Full Bench meant that it took

a most restrictive view of the prosecutor's rule

3(G). This may be a convenient point to note the

failure of the Full Bench to take into account the
history of rule 3(G). Although it was mentioned at
lines 32 and following on page 239, there was no
discussion or consideration given to that history,
certainly no weight was attached to it. In our
outline of submissions, at paragraph 5, there is

brief reference to that history, and we refer to

the discussion set out in the decision of
Deputy President MacBean, at first instance, in the

Commission, and the reference to the application in

the book is page 136.

Now, the Deputy President cited the comments

of Mr Haynes, who appeared for my client before

him, and there is reference, from line 5 on

page 136, to the rule having been derived in a
federally registered organization from the rules

of:

the unregistered, unincorporated state union

known as the Victorian Public Service

Association.

There is then reference to the fact that:

most Victorian unions which are not de facto

branches of federal unions do not have to go

through the tortuous registration -

process of the kind that is relevant to unions in

many other States and in the Commonwealth. And

there is then reference to the decision of the

federal deputy registrar, whereby that rule was

picked up from the State unregistered rules into

the federal rules. We say that that history was a

matter which should have been given weight, and it

Cancer 7 20/3/92

is a situation which would emphasize a need to

adopt a nonrestrictive approach.

Can I now turn, briefly, to the statutory basis of the Anti-Cancer Council of Victoria. That

basis derives from the Cancer Act of the Victorian

Parliament - - -

BRENNAN J: Before you get to that, Mr Wright, if one looks

at 3(G) one has, first of all, to understand
something of the nature of an undertaking, and then

to understand something of the nature of the body

which carries it on, is that right?

MR WRIGHT:	Yes, Your Honour.
BRENNAN J:	Now, do I understand you to say that there is no

public flavour about either of the terms undertaking, or the terms which might be

descriptive of the bodies by which it is carried on

other than authorities?

MR WRIGHT:  No, Your Honour, I do not go that far, but what

I say is that the word "public" is not to be read,

as it were, inserted before each word

"authorities", "commissions" or "corporations".

That there would have to be a public flavour

deriving from the fact that it is an undertaking

carried on by, for example, a corporation under a

State charter, statute, et cetera.	So there would
be a public flavour there.

BRENNAN J: But the only public flavour, in being carried on

under a statute, is that it has required the

legislative power of the State to grant it the

corporate status, is it not?

MR WRIGHT: That is right, Your Honour.

BRENNAN J: So, it is any company?

MR WRIGHT:  No, Your Honour, because a company does not

carry out its undertaking under the Corporation's

law, or the Companies Code, o-r the Companies Act,

whichever was relevant at the time. It carries on

its business under its articles and so on. There

is a different, we say, in the case of a

corporation established by statute. There may be

exceptions but the generality is, it would be

carrying on its undertaking pursuant to the statute

or, in terms of the word used here, under the State

statute.

BRENNAN J:  So the criterion is that the undertaking is

delimited and defined by the statutory instrument?

MR WRIGHT:  Yes, Your Honour.

Cancer 8 20/3/92

BRENNAN J:	Thank you.
MR WRIGHT:	I must say, Your Honour, in our consideration of

the matter we do not seek to pause to consider the

term "undertaking" to any great degree. As we

understand the law on that word, there tends to be

two possible approaches to it. One is that the

term is used virtually synonymously with terms such

as "business" or "enterprise", or sometimes in

terms of a particular project, and there is also

references to the inclusion of the debts and

liabilities as part of the undertaking in the

former sense. We do not see it as necessarily to

pause long to make any distinction of that sort.

We see the word "undertaking" as, at the risk of

using words with what used to be thought were

non-public sector flavours, we see it as

approximately synonymous with terms such as

"business" or "enterprise".

The important parts of the rule are the words

"State instrumentality", or:

carried on by public authorities, commissions,
or corporations under any State charter,

statute -

but the "statute" is the relevant word here.

We see, Your Honour, the rule, as I said

before, commencing in the heart of public

employment, or Crown employment, and then

travelling out from that to the periphery. So, it
is an attempt to cover public employment in the
very broadest sense of that term, although there

are clearly limitations.

Could I say one other thing about the question of corporation in terms of company? I am not

suggesting that the rule does not cover some

companies. For example, in Reg v Portus, in 1949,

this Court held that Qantas Airways, because of the

way in which it was structured and so on, was a

body employing persons on behalf of the government

in terms of the rules of the Australian Transport Officers' Federation. Certainly, there are parts of this rule which would allow that kind of body to

be covered, for example, the term "State

instrumentality". So, companies are not excluded

but in terms of the reference to corporations it

normally would not refer to such bodies.

MASON CJ: But why would such bodies not fall within the

earlier description, say, instrumentality or public

authority?

Cancer 9 20/3/92

MR WRIGHT: Well, Your Honour, in my submission, it is a

question of degree. This Court, in looking at the

concept of authority of a State in a case, I think,

upon which Your Honour sat, The Committee of

Direction of Fruit Marketing of Queensland v The phrase there in issue was "authority of the State··,

and in the joint judgment of Your Honour and

Mr Justice Wilson there was reference to that being

a question of degree. Your Honour, we see this as

being a question of degree. There may be some
bodies which are public authorities because of the

particularly public nature of the roles they

perform and the powers they are given and so on,

and there may be other bodies which carry on

functions under a statute where the functions are
not so clear cut in terms of having public features

or public purposes.

Now, in many cases it will be hard to distinguish bodies. It is hard to imagine a body

which is a public authority which is not a

corporation, carrying on an undertaking under any

State statute, but in our submission there may be

bodies whose public persona is not sufficient to

make them public authorities, but would

nevertheless fall within the less restrictive, if I

could use that word, formulation. We would see

that one has to, as it were, follow the rule

through, as going to the periphery of the central
notion, accepting that there will be a degree of

overlap.

MASON CJ:  I suppose in this era of privatization, there is

some reality in what you put to the Court.

MR WRIGHT:  Yes. Your Honour. Bodies change overnight.

Often the enabling statute remains, but is

drastically amended and different powers, different

objectives, different boards of management are set

in place, and suggestions that railways, for

example, will end up paying their own way, and

matters such as that. I mean, one would obviously

have to look at the differential statutory schemes,

but the very fact that a railway goes from a

loss-making body to a profitable one does not, of

itself, change its affinity with the Crown or the

Government.

The Cancer Act of 1958 is the current statute.

It appears that the original Act was one of 1936, but as the Court will be aware, the statutes in

Victoria were consolidated in 1958. Now the nature

of the Anti-Cancer Council is discussed in

paragraphs 15 to 18 of our outline and that

discussion is in terms of its essential public

nature and public purposes. It is our submission

Cancer 10 20/3/92

that the Council is located in the field of public
health and has an important role since 1980 of

being the cancer registry for the State of

Victoria, a role which, in all other States, is

carried out by the relevant health department.

Now, under that role, all hospitals, medical

practitioners and pathology laboratories are

obliged to report all detected cases of cancer to

the Council.

The primary objects and powers of the Council

are to be found in section 5 and on the print that

I refer to, it is print number 4, it is to be found

on page 3 of the print:

The objects of the council shall be -

(a)

to co-ordinate in Victoria all activities investigations with respect to cancer and

allied conditions and with respect to the
causation prevention and treatment

thereof: 

That paragraph was amended in 1988 and the objects now read, although in similar terms with some minor

differences, and the additional objects include to

"undertake, promote and subsidize such research and

to provide information and advice and develop,

coordinate, participate in educational programs".

In subsection (2) of section 5, the Council is

given certain powers for the purpose of:

carrying into effect of the foregoing

objects -

and they include obtaining:

moneys by means of grants subscriptions -

receive obtain and hold lands -

et cetera, and:

with the consent of the -

treasurer, previously the:

Governor in Council -

borrowing sums of money up to a certain limit.

Properly considered, when one looks at

subsections (1) and (2) of the Act, the objects are

to be seen, not only as objects, but also the

limiting the powers.

Cancer 11 20/3/92

Section 60 was inserted, as I said before, in

1980 and again, although it underwent certain

changes in the late 1980s, nevertheless the section

still provides the broad ranging role of the

Anti-Cancer Council, as what I have described as

the cancer registry, and there are mandatory

provisions requiring hospitals, medical

practitioners, pathology laboratories, et cetera,

to report all detected cases. That emphasizes, we

say, and reinforces, the body's role in the public

health field.

It is also important to note the role of the

Governor in Council in appointing most of the

members of the Council of the ACCV. The relevant

provision is section 6 and that section also

indicates that ex officio the Minister for Health

and the Chief General Manager of the Health

Department, are also members of the Council.

In section 11 the Council has an obligation to

prepare an annual report and to have it:

laid before both Houses of Parliament.

There is a power in the Governor in Council, in

section 29(3), to bring the Auditor-General in to

audit all the books of the Council. There is a

power in the Governor in Council, in section 31(2),

to revoke the rules made by the Council, and there

again, indicative of the public nature of the body.

We, of course, emphasize the fact that the

body has its prime role in the field of public

health, albeit, perhaps what might be thought a

very specialist area, that is, detection, research

and prevention of a particular disease.

The outline of submissions commencing at

paragraph 12 on page 6 set out, albeit, in summary

terms the principles applicable to the construction

of union eligibility rules. The principles are well known as are the relevant authorities. In those circumstances I do not deal further with that

material, except to note this submission: that the effect of the approach of the Full Bench was not to apply any of those principles.

That then brings me to the question whether

the Anti-Cancer Council of Victoria is a public
authority in terms of the Prosecutor's rules. This

is dealt with in the outline commencing at

paragraph 13. The submission is made that where

the phrase "public authority" is used in the rules

of a registered organization, a restrictive or

technical approach would not be applied. However,

even if such an approach was adopted the Council

Cancer 12 20/3/92

would be held to be within the scope of the phrase

in the rule.

Reference is made to the judgment of this

Court in Renmark Hotel Inc v Federal Commissioner

of Taxation, where the concept of a public

authority was considered both at first instance and

on appeal. On page 8 of the submission we set out

certain considerations of the concept taken from

the judgments of Justice Rich, Chief Justice Latham

and Mr Justice McTiernan.

We submit that an analysis of the Cancer Act,

paying particular regard to the various features

and perhaps greatest emphasis being given to

sections 5(1)(2) and section 60, demonstrates the essentially public nature of the Council and thus

its role as a public authority in terms of the

various formulations extracted.

We submit that the Full Bench failed to place

appropriate weight upon the relevant statutory
provisions in approaching the task before it.

Indeed, the Full Bench, when it came to look at the

factors, and I will come back to those, in the last

two pages of its judgment, made almost no reference

to the Act itself and yet, of course, what happens,

we submit, on the authority of the passage referred

to from Justice Stephen in the Superannuation Fund

Investment Trust case, one must, primarily, look to

the statutory basis of the activity and not

displace that statutory basis to reference to what

might or might not happen in practice from time to

time.

We give due weight, as we must, to the fact

that what is a government activity is not a fixed

or certain situation over time and, of course, we

make reference to the well-known passage in the

judgment of Justice Windeyer in the

Professional Engineers' case.	But having said
that, one of the traditional areas of government

activity is the field of public health, and we have

already indicated that the Anti-Cancer Council is

squarely in that field.

In some ways the high point of the factors

which are relevant to the question of public

authority, is section 60 which is discussed in some

little detail in paragraph 18. That role, enjoyed

elsewhere by State health departments, is a role

which, leaving everything else aside, we say makes

the Anti-Cancer Council a public authority. But we

do not, of course, have to go that far because we

rely upon the broad powers and functions in

section 5 itself.

Cancer 13 20/3/92

Now, I have already made the submission, in

answer to some questions from Your Honours, as to

the phrase "corporation under any State statute''

et cetera. We say, in paragraph 19, that the

Anti-Cancer Council is an undertaking carried on by

a corporation under a State statute because there

is relevantly a corporation, we rely upon the

provisions of the Act, sections 4 and 7, and the

matters referred to in paragraph 9. The Full Bench

criticized the submission we made before it by

suggesting that, taken to its logical conclusion,

all registered companies would be covered.	We have
already sought to meet that approach - - -

MASON CJ:	You seek to meet that by giving emphasis to the notion of "under"?
MR WRIGHT:	Yes, Your Honour, and we give some few

references in paragraph 10 which would assist in

the construction of the terms "carried on" and

"under". And the other feature, which leads us to

say that it is a corporation in the relevant sense,

is that its undertaking is conducted pursuant to

that Act and, in particular, sections 5 and 60 of

it.

I do not propose to take the Court to R v

Clyne; Ex parte Harrap, the judgment of

Justice O'Bryan, from Victoria, nor that of

Mr Justice Sheppard in The Northern Districts Taxi

Cab Company, and I hand up copies of those reports

for the Court.

BRENNAN J:	What are these to show, Mr Wright?
MR WRIGHT:	Your Honour, these are the references referred to in paragraph 10 to provide, at least, authority
for the submission that "under" simply means
"pursuant to".
BRENNAN J: Yes.
MR WRIGHT:	As I said, Your Honour, I did not intend to take

the Court to those authorities because I assumed

that that was not a matter of much controversy.

The last element of the rule, and I know this is dealing with the matters in reverse order, is

the question whether the Anti-Cancer Council is a

State instrumentality in terms of rule 3(G), and that is dealt with in paragraph 20 of our

submissions on pages 10 and 11.

We deal with that in terms of, primarily,

R v

reference to the judgment of this Court in the case I referred to earlier in a different

Cancer 14 20/3/92

context, a case relating to whether the Australian employees of Qantas, it, of course, being a

registered company although the shareholding was in

the Commonwealth and the power to appoint directors

was also there. That was in terms by provision in

its rules relating to a capacity to cover persons

employed on behalf of the government of a

Commonwealth or a State.

We also make reference to a useful

consideration and application of that judgment by

Mr Justice Watson, formerly of the Industrial

Commission of New South Wales, in Re Greyhound

Racing Control Board Award case. In that case,

His Honour was considering a similar formulation but in terms of a different union's rules, and we

extract from those two authorities the features

which we set out at the foot of page 10, and

although the test or formulation there is in terms

of employing persons on behalf of the government of

a State or a Commonwealth, as the case may be, we

respectfully submit that the test, or criterion
there, is not dissimilar from the notion of State
instrumentality, particularly when used in the

rules of a registered organization.

We say that, properly considered, the Anti-

cancer Council of Victoria falls within those three criteria and thus it can properly be described as a

State instrumentality. I think it is fair to say

that in the Commission, Mr Deputy President MacBean

at first instance, relied most heavily on that

concept as leading him to find a dispute or to

maintain the finding of dispute, whereas, we take

the view that one can more readily come to this

conclusion by looking at the concept of public

authority and corporation under any State statute.

We would see the State instrumentality as being the

hardest of the three criteria to establish.

We do, however, in the last two lines of our

submission, make the point that because a finding

might be made that the Anti-Cancer Council is a

State instrumentality for the purposes of this

Union's rules or perhaps for other unions rules, does not necessarily mean that it is so described

for all purposes, because one, of course, would

inevitably look at the structure of the rule, the

principles that are applied, and they may differ

considerably as compared to the situation where one

might look to a statutory formulation or one in

other similar instruments.

Now it is important to look at the factors

which led the Commission to hold that the Anti-

cancer Council was not within any of the

Cancer 15 20/3/92

descriptions contained in the SPSF or the

Prosecutor's rule. Those factors are set out from

approximately line 7 on page 231 to the mid point

at page 232. Now, it is important to recall that

the formulations which immediately precede this, or

this recitation of factors, at the top of page 231,

and the formulation which is to be found at the

foot of page 230 are formulations with which we

take issue. They are not formulations which

involve any analysis of the various elements of the

rule and, indeed, to the extent that they

paraphrase the rule, they do so erroneously.

The other important matter, and I apologize for repeating this factor, is that the key features

that one would look to in a body constituted by a

statute, namely the statutory powers and

limitations, are almost not referred to at all.

What the Commission seems to be doing is to

displace the key factors, the statutory basis of

the body itself, by matters which largely might or

might not happen in practice. But, even so,

properly analysed, none of these factors or

features are decisive against the point or points

we seek to make.

If I could seek to deal briefly with the

particular factors, and if I could deal with the

first two together. It is important to note, we

say, that the members of the Council are, in the

majority terms, nominees of the Governor in

Council. The fact that they may be nominees of

specific interest groups is simply beside the

point.

The second aspect as to these two features is

the powers of the Anti-Cancer Council are limited

to those set out in the Act, particularly the

sections I have emphasized. And lastly, those

powers and objects are clearly public powers and

the functions of the body are public functions.

If I could just mention one or two features as

to the second factor, this heavy reliance on the

use of volunteers. Again, there are two important aspects of that. One is the use of volunteers are for the functions of the Council, which are public functions, and it is not uncommon in other areas of

public employment or public activity for volunteers

to be used. Parents, for example, in public

schools, or volunteer helpers in public hospitals

have been a feature of both systems for decades.

In relation to the third and fourth features

which raise the charity point, if I could call it

that, again the reference here is, in effect, a

reading down of the statute. Secondly, the money

Cancer 16 20/3/92

raised is money used by virtue of the statute for

public purposes, and the sources of funds are not

determinative of the issue.

If I could just briefly refer to the Committee

of Direction of Fruit Marketing case which I

mentioned earlier. That judgment is reported in

144 CLR 577, and the particular passage I go to is

at page 593 point 8 in the joint judgment of

Your Honour the Chief Justice and

Mr Justice Wilson. Now, of course, the particular

circumstances applicable there are quite different

from those here, but it is important also to note

that the test of criterion was again different, and

we would say more stringent, namely, the question

there was whether the committee was an authority of
the State, which we would say is a more stringent

test than public authority or the other tests here

in issue.	At page 593 there is reference at about
point 3 to -

its funds being derived from its own

activities and from levies imposed upon it by

growers.

But towards the end of the page at approximately

point 8 in this joint judgment this is said, and I

quote:

Again, the test is not whether the body in

question draws its funds from government

sources.

We again submit that the source of funds is a

neutral question. If I could return but briefly to

the poor old railways, the fact that they might

change overnight from being financed in a deficit

way to a profit-making way would not of itself

alter the public nature of the body.

Now, factor number 5 is to be found at the top of page 232, and this is one of the few references

to the statute or to the important parts of the

statute.	We would not accept that that formulation
is correct.	The statute obliges the Anti-Cancer

Council to have regard to the views of the
Chief General Manager or formally the Health

Commission. In our submission, it is going much

too far to suggest that that enables it to simply

ignore those views. The statutory obligation is to

have regard to those views and the importance for

this case is that obligation.

Similarly, the Full Bench took the view that

the important feature of the Auditor-General's role

was that he had never, in fact, been required to

audit the accounts. The significance, we say, in

Cancer 17 20/3/92

terms of the public nature of this body, is that

to audit all the funds of the body, not just those that might come from government, and power is important, even if it could be described

the power exists on the part of the Governor in Auditor-General

as a reserve power.

Paragraphs 7 and 8 of these features, again

can be dealt with together. Here reference is made to the Council acting as a lobby group and its role

in having a particular Act passed in 1987 and its

role in a campaign called, the "Quit Campaign",

which interestingly it had a role in conjunction

with the Health Department of Victoria. The

important features in these areas are these: what
the Anti-Cancer Council does in these areas are

matters performed in terms of its public health

powers and objects. There may be a particular
emphasis to be included here; it may be in that

part of public health, which is now referred to as

"health promotion", but whatever vogue label one

might wish to attach to it, it can still be

properly considered to fall within public health

and, of course, whatever the Anti-Cancer Council of

Victoria does, it does pursuant to its statutory

powers in the Act.

The other important matter here is that

independence from government, again, is not
decisive. There are many bodies which are Crown

bodies, which have differing degrees of dependence or independence on government and that, of course,

can change over time. The significant test is

whether they have a public role. One could instance bodies such as directors of public

prosecutions, legal aid commissions, human rights

commissions or bodies of that kind; bodies which

often have an important lobbying or public role.

We do refer in paragraph 8 of our outline, and

particularly at that part of it to be found at

point 5 on page 8, to a passage in the judgment of

Your Honour Justice Mason in the Superannuation

Fund Investment case where, Your Honour, at

page 354 of the report looked at the question of

independence from government, as not of itself

being a feature which would make the body or
transform the body out of being a Crown body.

Now, if I could just pause there, of course

again, one of the issues in that case was whether
the body was a body which enjoyed the shield of the

Crown and, in our respectful submission, of course,

the various tests here are nowhere near as

restrictive as that test.

Cancer 18 20/3/92

Those assisting me have carried out some very

quick researches and so far as we can ascertain the

situation, section 101(3) derives from

section 60(2) of the former Act, the Conciliation

and Arbitration Act - - -

MASON CJ: It is virtually identical with it.

MR WRIGHT:  I think there are minor drafting changes which

presumably - - -

MASON CJ:  What has happened is, they have split up the provisions in the old section 60. You find this

particular one in section 103 and the remaining

provisions, or section 60(1) is in the new

section 150, so the provisions are parallel and

correspond.

MR WRIGHT:  Your Honour, we say the longstanding view taken

by this Court in relation to section 60 is a view

which would pertain now to subsection (3). Indeed,

a recent example of the approach, and I was on the

respondent's side, was the Australian Transport

Officers case which, I think, was decided by the

Court in December 1990, and it is recently reported

in 171 CLR. Even though this issue was not

discussed there, we say that this is a case,

subject to our legal arguments being successful,

where the same result would follow.

MASON CJ: Yes.

MR WRIGHT:	I have sought to let a large part of our submission speak for itself. I, of course, rely on
all the matters set out in that.  The fact that I
may not have mentioned some of them is not to be taken - - -
MASON CJ:	No, you can take it we appreciate that all that

appears in your written outline is the argument

that calls for our consideration.

MR WRIGHT:  In our respectful submission, the Full Bench

failed to or, in essence, failed to consider the

relevant rule and came, obviously, to the wrong

result for the reasons we have given in our

submissions. We submit that the State Public

Services Federation, through its rule 3(G), has the relevant capacity of employees of the Anti-Cancer

Council of Victoria, and the dispute finding should

not have been revoked. The mandamus would lie, and

I think there is only one matter of detail, which perhaps I should deal with, in the light of the

fact that Her Honour Justice Cohen is no longer a

member of the Commission.

Cancer 19 20/3/92

The orders sought are to be found in the notice of motion, which is set out at pages 236 and

237 of volume 1 of the application book. Clearly,

there would be no basis whereby a writ of mandamus

should issue to Her Honour, but - - -

GAUDRON J:  You do not need a mandamus to the members of the Full Bench, in any event, do you. The matter goes

back before a single member, does it not?

MR WRIGHT:  Except that the Full Bench did make an amended

finding of dispute which did exclude the

Anti-Cancer Council of Victoria, and we would need

that amended finding to be re-amended in accordance

with the orders of the Court.

GAUDRON J: Yes.

MR WRIGHT:  Now, we did frame the first order sought in

terms of members of the first respondent, as a

whole, because it would be a matter for the

Commission as to - - -

MASON CJ:  Who would hear the application?

MR WRIGHT: That is right, I am sorry, Your Honour, we would

assume that order 1 is in sufficient terms, but we

take the view that it would be necessary to have
reference to Her Honour, the second respondent, in

the application for the writ of certiorari to quash

the order made in which Her Honour participated,

when a member of the Commission. I think this was

a matter raised by Your Honour the Chief Justice

when - - -

MASON CJ: It was a matter raised by me, I think, when the

application for an order nisi was made. I remember

hearing, whether it was in this case or another one

I cannot recall, but I think there were two or

three applications I heard in chambers in quick

succession, where this problem did, conceivably,

arise.

MR WRIGHT: Perhaps, not ideally, but we have sought to deal with that question in terms of the way in which the orders have been framed. If the Court pleases.

MASON CJ: Yes, Mr Jessup?

MR JESSUP: If the Court pleases, we have the outline and we

will hand up also, if it is convenient, an

unofficial consolidation of the Cancer Act, which

makes it a little easier to recognize it in its

contemporary manifestation, as it were.

Now, in our submission, the Court must take an

objective approach to the construction of the

Cancer 20 20/3/92

eligibility rule of this, as with any other

registered organization, because it constitutes the

discrimen by which the boundaries of the

organization's proper sphere of influence are

marked out, and such was held by the Court in

Reg v Williams; Ex Parte The Builders' Labourers' Federation, 153 CLR 402 at page 408. In the first paragraph to commence on - - -

GAUDRON J:  What do you mean by objective? What is meant

by objective in that context? I do not know that

there is any other one that can really be taken, is

there?

MR JESSUP: Well, Your Honour, what we mean by objective is

what the Court meant by objective in the ELF case.

About a third of the way down the page, the second

major proposition in the paragraph commencing on

that page:

Since such eligibility provisions constitute a

reference point for courts, commissions,

employers, employees and other organizations

in determining or ascertaining an

organization's proper coverage and field of

operation, they must be construed objectively.

And the cases referred to after that statement are

authority for it. Now, what it means, as we

understand it, Your Honour, is that it would not

do, if every time a rule came up for construction,
the Court, as it were, opted out of the hard

question by saying, well, when in doubt we will give it a wide construction, because that might

lead to rules having different meanings depending

upon the convenience of the day. What we submit is

that you do recognize it for what it is. It is a

rule of a trade union, but none the less you

construe it according to ordinary principles of

construction against that background.

Now the background may be different for a

particular trade union compared with some others.

It may not be the same background, Your Honour, if

one is dealing with the rules of the Public Service Association from the background that one would have dealing, perhaps, with the rule of the Builders'

Labourers' Federation or the Painters' and Dockers'

Union. One cannot, as it were, universally say,

these rules must have been drawn by people inexpert

in the matter of drawing union rules. And, if one

looks at the Union rules here, covering the many

many pages of the appeal book, as they do, and I am

referring now not to the rules as a whole but to

the the eligibility rule, one can see it was

subject to enormous attention, in our submission,

and it is unlikely that this subrule would have

Cancer 21 20/3/92

been dealt with in a casual or inattentive way by

the draftsman.

Now, in our submission, the subrule is to be

construed in this way: a person is eligible to

belong to the Federation if he or she is employed

in the public service in Victoria - that much is clear - or if he or she is employed in any State

instrumentality - that much is also clear. And

then the difficult area commences. We submit that, from that point on the rule should be read in these

terms "or employed in any other State undertaking

carried on either by a public authority, a

commission or a corporation, that carrying on being

done under a State charter, statute, enactment or

proclamation."

Now the first departure from the construction

advanced by my learned friend which is involved, in
our submission, is the carrying through of the word

"State" to the word "undertaking" as well as the

word "instrumentality".

In our submission, "other" before

"undertaking", is used in the sense of "other than
an instrumentality", not in the sense of "other

than State". So, it is a State instrumentality or

other State undertaking not being an

instrumentality but, no doubt, having much in

common with an instrumentality.

MASON CJ:	What meaning are you giving to "undertaking"?
MR JESSUP:	Your Honour, a business or an enterprise will do

for present purposes. We do not submit that our

client is not an undertaking.

MASON CJ: But, undertaking is not of the same genus or

class as instrumentality, if you are giving it that

meaning.

MR JESSUP:  No, Your Honour, that is so, although in the

alternative we say that "other undertaking" should be read ejusdem generis with State instrumentality.

If "State instrumentality" is to be read as a

composite expression, something like German undertaking" is to be read ejusdem generis with it.

That is what we put in the alternative. Our

principal submission is that the proper reading is

that it is a State instrumentality or some other

State undertaking and whether or not there is a

class, Your Honour, we would submit that it gets

its flavour, as it were, from the State

instrumentality and, indeed, from the public

service.

Cancer 22 20/3/92

GAUDRON J:  What difference would that make in this case,

though? Let us assume one came to the conclusion

that the Council were a public authority and it carried on whatever it carried on under a State

statute, what difference would the reading of

"State undertaking" into it mean?

MR JESSUP:  Your Honour, as I understand the argument put

against us, it is that "public" can mean pretty

much anything you want it to me in the

circumstances of the case. We would say that a

"State undertaking" is an undertaking of the State,
or on behalf of the State, as distinct from an

undertaking, if undertaking be the right word,

established by statute and carried on for public

benefit or for charitable purposes. That is the

difference which it makes, Your Honour, and we will

later submit that a "State undertaking" carried on

by a public authority is tantamount to an

undertaking carried on by an authority of the

State, as to which there is considerable law in

this Court.

That is the first way we put it and, we

submit, if the Court pleases, that if one or other

of the forms of construction for which we contend

in the alternative is not adopted, then the rule

must extend both to public companies and to
municipal bodies in the nature of local governing

authorities.

MASON CJ: At the moment, I do not see what the words after

"undertaking" are achieving if "other undertaking"

is to be read as "other State undertaking".

MR JESSUP: Yes, Your Honour. Well, what they are achieving

is to identify the nature of the body by which the

undertaking must be carried on.

MASON CJ: But why would you seek to do that if you are

describing a State undertaking? Would it not be

enough that it is a State undertaking, regardless

of the nature of the body that was carrying it on?

MR JESSUP: Well, Your Honour, it might be for the purposes

of the Union but then, on the other hand, there is

a distinction, we submit, which is sought to be

made in the rules between the nature of the

undertaking and the body by which it is carried on,

and this is so because the Union is concerned to

emphasize its extension beyond the public service

proper, beyond employment by the Crown as such, to

extend into employment by free-standing

corporations, as it were, but only those which

carry on a State undertaking. Such that, if they

were not there, Your Honour, you might have an

argument that it was not a State undertaking,

Cancer 23 20/3/92

because albeit it exercised powers which were State
powers and carried out State functions, nonetheless

it having been separately constituted as a

corporation, is not a State undertaking. So, in

that sense, Your Honour, we submit that one needs

to recognize the draftman's concern to emphasize

the scope of the rule into the statutory

corporation area.

GAUDRON J: Is it legitimate, Mr Jessup, to have regard to

the exclusions in construing rule 3(G)?

MR JESSUP:  Not in this particular instance, Your Honour,

because this rule was lifted in toto from the

Victorian Public Service Association -

GAUDRON J: Well, I was wondering, can one have regard to

the Victorian exclusions?

MR JESSUP:  No, Your Honour, because this particular

paragraph came as such. We recognize that there is

an exclusion for municipal bodies, Your Honour, if

Your Honour has that in mind.

GAUDRON J: Well, I am looking at page 56 of the application

book and following.

MR JESSUP:  Yes, Your Honour.

GAUDRON J: If one has regard to them, one would think that

there may not be any necessity or any justification

for reading in "State". For example, the exclusion

of persons employed by the University of Melbourne

as academic staff, although that may be directed to

the academic staff, is it?

MR JESSUP: Yes, Your Honour. Well, we are not concerned to

discuss the strength or otherwise of the case

against the University of Melbourne and Your Honour

will be aware, even looking at these exclusions,

that they follow patterns in one sense and in the

other sense are such a miscellaneous batch that

they are likely to have been inserted at the behest

of other interest groups or industrial groupings

that do not want to be exposed to any prospect of

coverage, but we would submit, Your Honour, that

once we know that this particular paragraph, 3(G),

came in terms from the Public Service Association's

rules, then that is an important indicator that we

must look principally to it, and to construe it by

reference to the terms of exclusions which, on

their face, lie very distant from it, would, in our

submission, not be a helpful approach to

construction.

Cancer 24 20/3/92

BRENNAN J:  How does that approach sit with the objective

approach to construction for regard being had to

history.

MR JESSUP:  To regard?

BRENNAN J: If one has regard to the history of a particular

rule, is that an objective approach to the

construction?

MR JESSUP:  Yes it is, in our submission, Your Honour. In

our submission, that is quite a proper approach if

one is doing it objectively, as one would have

regard to the history of legislation.

BRENNAN J: Could I ask you this: if you introduce the word

"State" as qualifying undertaking, what difference

does that make from a construction of the rule
which focuses upon the words "undertaking carried

on under any State charter, statute, enactment or

proclamation"?

MR JESSUP: Well, in our submission, Your Honour, little or

none. What we essentially put to the Court is a

series of different ways of construing the rules,

and we put them in order of our preference if you

were, but each of them produces the same result, in

our submission, that is, that it has to be a body

which is imbued with the flavour of State

government administration, the exercise of State

government powers and things of that nature. And

you get that from public authorities standing

alone, we will come to submit, and you get it even

more strongly from State undertaking carried on by

a public authority.

BRENNAN J:  I do not think perhaps I have made my question

clear. Provided an undertaking is defined by
charter, statute, enactment or proclamation, is

that sufficient to identify the undertaking as a

State undertaking?

MR JESSUP:	No, in our submission, Your Honour, it is not.
BRENNAN J:	What then is the difference between a State

undertaking and an undertaking which is carried on

under a charter, statute, enactment or

proclamation?

MR JESSUP: Well, we gave Your Honour two examples. We said

that the ordinary trading company would be carried

on under a State statute.

BRENNAN J: But would it?

MR JESSUP: In our submission it would, Your Honour, yes.

Cancer 25 20/3/92

BRENNAN J: Well, that rather leaves aside the emphasis

which I understand is put against you in relation to the word "under'', and that is that it is under

the memorandum and articles of association that a

trading company carries on its activities;

whereas, if you have a statute or regulation which

prescribes the activities to be carried on, then

you have something in the nature of public activity

thus defined.

MR JESSUP:  Your Honour, as we would understand it, the

memorandum prescribes the powers and objects of a

company and it does so under the Act, and it is the and objects specified in the memorandum. This

particular Act is ad hoc, as are many Acts, such as

the Act incorporating the Law Institute of

Victoria, the Melbourne Cricket Club, the

Brotherhood of St Lawrence, and many other

professional, sporting, charitable bodies, but they

are established, Your Honour, ad hoc. Some of them

have the functions and objects of the body set out

in the Act. Others of them require the body to

draw up their own objects and to adhere to them in

much the same way as the corporations law.

So we do submit, Your Honour, that it would

not be a satisfactory point of distinction to rely

solely upon State statute, for example, as my
learned friend seeks to do. Secondly, Your Honour,

there is the question of local government bodies.

In Victoria, the City of Melbourne has its own Act,

the City of Geelong has its own Act. Other

municipalities are incorporated pursuant to the

Local Government Act, and one needs to have some

notion of what we are talking about here as a

"State undertaking", not a ''municipal undertaking",

and the words following would not, in our

submission, be sufficiently strong to perform that

role.

GAUDRON J:  I come back to, is there a specific exclusion for municipal - - -

MR JESSUP: Yes, there is, Your Honour.

GAUDRON J:	Where do I find that?
MR JESSUP:	You find it, I think, on the next page from the

page upon which you find the eligibility rule - you

find it on page Sl(v) at the bottom of the first

column. We recognize the force of what Your Honour

puts to us in drawing attention to that exclusion,

but - - -

BRENNAN J:  Where is the exclusion, again?

Cancer 26 20/3/92

MR JESSUP:  On page 51 of the appeal book, Your Honour, at

the bottom of the first column, (v).

BRENNAN J: Are they not New South Wales instrumentalities?

MR JESSUP: It would be nice to think so, Your Honour, but I

think (i) at line 21 on page 50 - - -

BRENNAN J: Yes, that is right.

MR JESSUP:  - - - and it deals with the following

instrumentalities under a series of headings. It

looks as though (v) is self-contained, concluding

at the top of the second column on page 51:

shall not be eligible for membership of the

said Federation.

BRENNAN J: Yes, thank you.

MR JESSUP:	Now, what we say to that, of course, is that rule 3(G) is a rule which came in a chunk, as it
were, from a pre-existing association, and its
meaning should come with it. It is true that there
has been an exclusion put in there.  We would
submit that exclusions is cautionary in its effect,
and that a proper construction of rule 3(G) should
proceed with focus upon its terms itself, and when
one looks at it it is capable of covering the
municipal area, and yet clearly unlikely that it
would do so. It is unlikely that the Victorian area, or shown any interest in it.

Now, we submit next that if "State" is not

carried through to "undertaking" then "other

undertaking" must be read ejusdem generis with "State instrumentality", that is to say, it is concerned with an undertaking in the nature of a

State instrumentality, or an undertaking acting as

the instrument of the State, or performing

functions on behalf of the State, alternatively

performing functions of a kind which, in other

regulatory circumstances, would be performed by the

State.

It is necessary, therefore, to consider what

the result would be, first, under the expression

"State instrumentality", secondly, under our

primary submission for "undertaking", that is that

it is a State undertaking and, thirdly, what the

result would be if neither of those submissions

were accepted by Your Honours and it was simply an

undertaking carried on by a public authority.

If we may deal, first, with the question of the instrumentality. This was dealt with in a

Cancer 27 20/3/92

passage which Chief Justice Barwick later described

as probably the most satisfactory treatment, in the

Supreme Court of South Australia in Electricity

Trust of South Australia v Linterns Limited, (1950)

SASR 133, at pages 139 to 140. Is there any reason to assume Your Honours do not have access to that

report? We have photocopies of it if any further

are required.

MASON CJ: Yes, thank you, Mr Jessup.

MR JESSUP:	The question was whether the trust was a State instrumentality for the purposes of being excused
from the operation of the rent control legislation, and the court held that it was. On page 139, about
a third of the way down, His Honour said:

What then is an instrumentality? As

Higgins J. pointed out in the Municipal

Employees' Case, the term was not familiar in

English law. It came into the legal
vocabulary of Australia through the American

doctrine of the mutual immunity of Federal and

State instrumentalities. In the Railway

Servants' Case it was held that the railway

undertakings of the States were State

instrumentalities for the purposes of the

doctrine of immunity. The question arose

again in the Municipal Employees' Case in
relation to municipal corporations and the
meaning of instrumentality was discussed at

length. All the Justices seemed to give the

word the same generic meaning, namely, an

organ of government. The debate was whether

municipal corporations which admittedly were

governmental organs were State

instrumentalities in the sense that they were
instrumentalities of the Executive Government.

It was held by the majority of the Justices

that they were not.	The case is useful in
that it indicates that a State instrumentality

need not necessarily be a servant or agent of

the Crown. Even if given powers to be

exercised independently of the Crown it may

nevertheless be an instrumentality of the

Crown where it is legally empowered to perform and does perform any function whatever for the

Crown.

According to the Oxford English

Dictionary, an instrumentality is that which serves or is employed for some purpose or end,

a means, an agency. The Trust, in my opinion,

exactly fits this conception. By virtue of

s. 15 ..... the Crown is the owner of the

undertaking for the supply of electricity and

the mining of coal in South Australia. The

Cancer 28 20/3/92

Trust serves the purposes of the Crown in

managing the undertaking and in making

electricity and coal available for the public. the Crown asset. It is not the servant or
It exercises its functions on behalf of the

agent of the Crown because it has independent

powers and is not subject to the control of

the Governor in Council or any Minister of

State. Nevertheless, it is an instrumentality

or agency of the Crown, because it serves the purpose of the Crown in managing Crown assets

in the interests of the public.

And we have referred to the Municipal Employees'

case in our outline. We will not take Your Honours

to that because that case was not concerned with
construing the word "instrumentality'' in a statute,

but rather with whether local governing bodies were

instrumentalities of the State in such a way as to

give them immunity from Commonwealth legislation,

and at the pages to which we have referred in our

outline, Their Honours made observations upon which dealing with the notion of an instrumentality,

apparently coming, as it had, from American law.

Now, my learned friend has referred

Your Honours to Portus' case, the case concerning

Qantas airlines. When one looks at that case one

will find that in two respects at least it is

different from this case. It was concerned with a

union which had a different rule altogether; that

is, a rule which enabled it to cover corporations

who employed people on behalf of the Government.

We would submit it would be a clearer case from our

point of view if those were the words here. If it

makes any difference, which we submit it does not,

our client does not employ people on behalf of the

Government at all. It is performing a function

which is quite separate from government.

And secondly, Portus' case was concerned with

a private company, the whole of the shareholding in

which was held by the government and therefore one
would not register any surprise at the conclusion

of the court in that case that the employees were employed on behalf of the government, because the

government, wanting to acquire an airline, had

chosen to acquire all the shares in an existing

airline company.

Now if we may turn to the next part of the

construction, if Your Honours accept what we say

about "State undertaking", we proceed to submit

that a State undertaking, which is carried on by a

public authority, is tantamount to an authority of

Cancer 29 20/3/92

a State and is likewise, in our submission, an

instrument of government, is engaged in the work of

government or is a body with the power to direct or

control the affairs of others on behalf of the

State. May we take Your Honours to General Steel

Industries Inc. v Commissioner for Railways (NSW),

112 CLR 125. The question which arose is whether

the Commissioner for Railways was exempt from the

operation of the Patents Act by reason of being an

authority of the State and that arose from the

combined operation of sections 132 and 125 of that

Act, the terms of which are set out on page 131 of

the report. We rely on what His Honour the Chief

Justice said, on page 132, commencing at the bottom

of that page. His Honour said:

There is no direct judicial precedent for

deciding that the Commissioner is an
"authority" of the State for such purposes as
those of section 125 of the Patents Act. It
has been decided that the Commissioner for

Railways is so far identified with the Crown as not to be bound by Fair Rents legislation

and that in certain other respects he is

entitled to the privilege or protection which

the law accords the Crown. But, to my mind,

these authorities are not decisive of the

present question which is whether in the

Commonwealth statute dealing with patents for
inventions the expression "an authority of the

State" embraces the Commissioner for Railways.

That he has some of the immunities of the
Crown and is not bound by some statutes may be

elements for consideration but cannot be
conclusive.

And then His Honour deals with the Electricity Trust case and having quoted from that case at

about 7 on that page, His Honour continues:

But His Honour's conclusion that the

Electricity Trust was an instrumentality of the Crown turned of course on the statute

His Honour was construing and the nature of

the functions performed by and the

relationship of the statutory body to the

Crown and to its revenues. The concept of an

"instrumentality" accepted by His Honour in

that case is not identical with the concept of

an authority of the State for present purposes

though the two concepts may have some common

elements and be closely allied. Thus, though

the considerations which weighed with

His Honour in that case have their relevance

here, they are not decisive.

Cancer 30 20/3/92

His Honour found that the railways commissioner was

an authority of the State.

May I take Your Honours then to the case to

which my learned friend referred, the Fruit

Marketing case, 144 CLR 577. This was a case in

which the question was whether the appellant

committee was an authority of the State for the

purposes of not being entitled to concessional rates under postal by-laws. We take the Court

first to the judgment of Mr Justice Gibbs at

page 580. His Honour said, commencing about a

quarter of the way down:

The word "authority" in the sense in

which it is used in by-law 118, simply means

"a person or body exercising power or

command". It will be unnecessary in what I am

about to say to discuss the position of an

individual person who is an authority. The

expression "authority of a State" refers to a

body which exercises power derived from or

delegated by the State, but the fact that a

body is established under State law and
possesses power conferred upon it by State law

will not necessarily mean that the body is an authority of a State. For example, a private

company, such as a gas supply company, which

provides a public service for profit, may be

set up under the company laws of a State, and

may be given special statutory powers to

enable it to carry on its undertaking, but it

does not thereby become an authority of the

State. The words "authority of a State"

naturally mean a body which is given by the

State the power to direct or control the

affairs of others on behalf of the State,
i.e., for the purposes of and in the interests

of the community or some section of it. In

concerned is given exceptional powers of a some cases it may be decisive that the body	kind not ordinarily possessed by an individual
or a company, and that those powers are intended to be exercised for a purpose that
would ordinarily be regarded as a purpose of
government. On the other hand, in some cases it may be decisive that the body is conducted
in the interest and for the profit of its
members. In all cases, however, it is
necessary to have regard to all the relevant circumstances in order to determine the character of the body in question.

His Honour goes on to say he has been much assisted by the Silverton Tramway case and by the Western

Australian Turf Club case.

Cancer 31 20/3/92

May we take Your Honours next to page 593 in the judgment of Your Honour the Chief Justice and

Mr Justice Wilson. Your Honour said on that page commencing just over half-way down:

The question to be determined is whether

the appellant is or is not "the Commonwealth,

a State or an authority of the Commonwealth or

of a State". No other test is provided.

Nevertheless the totality of the provision is

instructive, and some conclusions may be drawn

from it. Clearly, it is not confined to the

Crown and those bodies which are so closely

identified with the Crown as to enjoy its

immunities. Consequently, the provisions of

s 6(4) cannot be decisive in favour of the

appellant. Again, the test is not whether the

body in question draws its funds from

government sources.

In our opinion, the focus is upon

government, and the function of government.

If the appellant is to succeed, it must be

because the proper conclusion, based on the

legislation, is that the COD is not engaged in

the work of government, notwithstanding that

it is created a statutory authority with a

wide range of powers. It would have to be

shown that the authority represented by those

powers in reality is derived from the growers,

not from the State.

Finally, on page 595, Your Honour said, in the

last paragraph in the judgment:

In our opinion, the legislation clearly creates the appellant an instrument of

government and equips it with the powers to

achieve the organized marketing which is the

purpose of the legislation.

We will later draw to Your Honours' attention why

our client does not come within those kinds of

formulations which have been used in the cases.

So much then for "other State undertaking".

If we might now concern ourselves, Your Honours,

with the consequences of a finding that "State" is
not to be carried through and "other undertaking"

is not to be read as ejusdem generis with State

instrumentality, namely that what we have is simply

an undertaking carried on by a public authority

under a State statute.

We would submit that even in such a case the

rule is concerned with a body exercising

governmental power or command. a body, that is to

Cancer 32 20/3/92

say, authorized by a statute to act on behalf of

the public or the State. The question of "public

authority" has been considered in a number of cases

under section 23(d) of the Income Tax Assessment

Act. Perhaps the earliest well-known one was the

Queensland Law Reporting case, 34 CLR 580, and

reference is made to page 585 because that is the

occasion which Sir Isaac Isaacs, who was then

Acting Chief Justice, observed in the course of

argument that a public authority is one which

exercises:

some statutory power authorizing them to act

on behalf of the public of the State -

and that is about one-third of the way down

page 585.

In the judgment of the Court which follows,

there was no greater enlightenment on why it was

held that the incoraporated council was not a

public authority but since, as Your Honours will

note, counsel for the respondent was not called on,

the observation made in argument has been

identified in later cases as substantially the

basis for the ruling in that case.

The first of those later cases is the Renmark

Hotel case, 79 CLR 10. The Renmark Hotel was

constituted under the Association's Incorporation

Act, and some fairly, what we would nowadays call

unusual, I suppose, legislation limiting the number of licensed outlets in the Renmark irrigation area,

and it was argued that this hotel was a public

authority for the purposes of the Income Tax Act.

The matter came before Mr Justice Rich, at

first instance, or on appeal from the

administrative decision of the Commissioner.

Page 18, at about half-way down the page, The characteristics of a public authority

His Honour said:

seem to be that 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. Ins. 23(d) it is made

clear that it must be constituted under a

State Act. Coercive powers over the individual are given to many governmental

authorities which could be called public

authorities, but it is not an essential part

of a conception of a public authority that it

should have coercive powers, whether of an

administrative or a legislative character. It

Cancer 33 20/3/92

may, however, be an essential characteristic

of the conception that it should have

exceptional powers or authority, for instance

a tramway board of trust has the exceptional

authority of taking its trams down a public

street. A water authority may lay its water

mains, a lighting authority may do the like.

Some exceptional powers of doing what an ordinary private individual may not do are

generally found in any body which we would

describe as a public authority.

MASON CJ:  Now, do you say that is part of the criterion, do

you, of public authority?

MR JESSUP: Yes, Your Honour, we do. Now, the matter was

appealed and His Honour's decision was upheld.	The
judgments, on appeal, commence on page 21 of the

report, and if I might take Your Honours first to

the bottom of page 22 in the judgment of the

Chief Justice:

In my opinion, all these provisions

amount to a set of special provisions for

controlling the sale of liquor in a particular

area and the disposition of the profits

arising from such sale; but, in my opinion,

the appellant company is not given any power

or authority by law in the form of a State

statute to do any acts in relation to the

public which otherwise would be beyond its
power or unauthorized. The licence to sell liquor plainly does not make the licensee a
public authority. If this were the case,

licensees of all premises licensed to sell

liquor would be public authorities.

And then His Honour refers to Griffiths v Smith and

to the words of Lord Porter in these terms:

"There are many bodies which perform statutory

duties and exercise public functions." In my

opinion, those words indicate the nature of

the attributes which a person or body must

have in order to be a public authority within

the meaning of the ..... Acts. In my opinion,

the appellant company does not perform any

statutory duties or exercise any public

function.

Mr Justice McTiernan, over the page, in the second

paragraph on page 24:

The appellant is managed by a publicly

elected committee and bound by its
constitution to devote the profits to public
objects, but that does not necessarily make it

Cancer 34 20/3/92

a public authority constituted under statute.

It is the nature of the authority which is the

test, and that must be considered.

This appellant is not given any powers,

duties or authorities which would make it a

public authority in the ordinary sense of the

expression.

And then Mr Justice Webb, in the second paragraph

of his short judgment, His Honour said:

Paying full regard to the legislation

which has been passed to assist this

particular body, I am unable to find in it any

statutory power authorizing this body to act

on behalf of the public or the State - to

apply the test laid down by Mr. Justice Isaacs
in the ..... Incorporated Council of Law

Reporting case.

MASON CJ:  What do you understand by "act on behalf of the

public" as distinct from "act on behalf of the

State"?

MR JESSUP: Well, Your Honour, it is a difficult expression;

it clearly does not mean literally act on behalf of

everybody. "Public" must be given a meaning which

ties it back, in our submission, in effect to the

State~ That is to say, achieving a public purpose

by way of State authority, and in that sense,

Your Honour, as for instance perhaps a tramway company or an electricity company would do that,

not necessarily exercising core State functions,

Your Honour, but exercising public functions with

the authority of the State. One of the problems in

this rule, Your Honour, is that public has to be

given some meaning; it obviously does not cover

"public" in the sense of public company, and in

looking for a meaning we say it is tied into

authority and the judicial exposition which has
been given to public authority.	We also say that

it gets its flavour from the public service

character of the rule as a whole, and we will come

back to that presently.

MASON CJ:	Why is it not enough that it is set up by government and that its functions are public in the
sense that it is to act in the interests of the
public, rather than for any private purpose or interest?

MR JESSUP: Well, Your Honour, there would be many bodies

which would be covered if that were so.	Now I have
mentioned the Law Institute, which is an

incorporated body, which has statutory powers;

indeed, greater powers than our client, and such

Cancer 35 20/3/92

bodies as the Melbourne Cricket Club, which is

required under its Act to foster the development of

a range of different sporting activities, all in

the public interest, and under statute.

MASON CJ:  But bodies such as that may be regarded as

serving private or sectional interests as well.

MR JESSUP:  Not in so far as the Statute deals with it,

Your Honour, with respect; they may, on the way

through as it were, serve private interests, but

the purpose of their incorporation, in our
submission, is to ensure the performance of the, in

this broad sense, public functions, in which the

legislature perceives the community has an

interest, and there has to be some discrimen given

to it, that is to the word ''public" Your Honour, in

our submission, which is more than simply

beneficial in the interests of the community.

There are many institutes, medical institutes,

research institutes, charitible bodies, which are

incorporated; all of them are incorporated for

reasons which exclude any private element. The

Brotherhood of St Lawrence is one I mentioned

earlier, and yet, what is happening with them, as

with our client, is that the legislature is, as it

were, putting on a proper foundation in law, an

activity which is non-governmental and non-State in

that sense; that is non-public in the sense of

governmental.

BRENNAN J: 

I can understand that where the legislation

essentially provides a framework, to take the case
of the Brotherhood of St Lawrence, allows the
channelling of public subscriptions to the devotion

to charitable works.  But in the case of the Law

Institute, for example, where there are statutory powers being exercised in the public interest, it

authority.

is not easy to see that it is not a public

MR JESSUP: Well, Your Honour, with respect, that tends to

beg the question, if we may so submit, rather than

to provide the answer - - -

BRENNAN J:	Of course.
MR JESSUP:	- - - in this sense, that, if all that happens

is that a body is given powers which are to be

exercised in the public interest then it could
extend to the Law Institute and what we say is, it
would be curious if the Public Service Association
should cover employees of the Law Institute, which

is a body which stands quite outside the

traditional sphere of what might be thought to be

Cancer 36 20/3/92

public service, or even some tentacle of the public

service.

BRENNAN J:	We does not your argument really come back to trying to identify what, to use a discarded
discrimen, is regarded as traditional government
functions?

MR JESSUP: Well, it does not rely upon such an

identification, Your Honour, no.

BRENNAN J: It does not embrace it, but is that not the

underlying concept?

MR JESSUP: It starts from that, as my learned friend said,

and it goes out to what he described as the

peripheries. Now, you have to start with some

notion of the favour of the body as a whole before you can properly approach the construction of this

rule, in our submission, before you know whether

something is a periphery of the public service or a

private, charitable or professional or sporting

body, which has been incorporated so as to protect
its funds, for example, and so as to ensure that

donations which are made to it are directed to proper purposes and this, we submit, is a very important part of the position of our client, that

when you have a body which collects in each year

very substantial sums of money from public appeals,

donations, bequests and the like, it is important

that there be statutory protections, that those

funds ought to be not only protected from

defalcation and the like, but also used in the way

for which they are intended and furthermore,

Your Honour, the existence of the legislation as a

public document open to all, will satisfy intending

donors and indicate to them the purposes and the

only purposes for which their money can be

directed.

Now, that does not mean, Your Honour, in our

submission, that it is a public authority. What it

does mean is that there is a very good reason for

having it incorporated under statute and for having

its powers identified in that way.

The next decision of this Court to which we

want to draw Your Honours' attention is the Western

Australian Turf Club Inc v Commissioner of the Western Australian Turf Club had been given

certain powers which were accepted by the Court as

State, public or governmental powers, but the question was really whether, having those powers as to part of their activities but that side of it, as it were, not attracting any income, the question

was whether their income from their other

Cancer 37 20/3/92

activities was exempt from income tax. Might I

take Your Honours to page 294. I will not read 294

to 297 to Your Honours completely, but draw

Your Honours' attention to part of it.
Mr Justice Stephen said at the bottom of 294:

The Act of 1917 was of quite different effect. It imposed upon the Club a public

function, that of licensing horse-races

throughout the State. The Club has ever since

been involved in this exercise of powers and

functions not possessed by the ordinary

citizen and which have been conferred by

statute and are essentially of a public

nature. Were these powers and functions

vested in some State authority created for

that purpose and having no other function it

would, I think, clearly enough be a public

authority.

And then in the next but one paragraph, the last

paragraph on 295 about eight lines in, His Honour

referred to the club having as one of its roles -

that of an agency of government controlling

horse-racing.

At the bottom of 295 His Honour said:

Nevertheless some general principles of

assistance do appear from the cases. I do not

have in mind propositions that a purpose of

earning of private profits was enough to

disqualify from status as a public authority -

then over the page -

despite the existence of statutory duties or

powers that the undoubted existence of public

benefit derived from the body's activities was

was required than the performance of duties,	not in itself enough to quality or that more
even public duties, imposed by statute. It is
rather the general approach of the courts to
the question of status as a public authority
that is useful; that approach has involved a
weighing of all relevant circumstances before deciding in particular cases upon the status of the body in question.

At the top of the next page His Honour said:

In the case of s 23(d), the possession of

some statutory duties or powers is not, I

think, enough to attract to the income of a

body the exemption from tax which the

paragraph confers unless, upon examination of

Cancer 38 20/3/92

all of its characteristics, the body can be
seen in general to conform to the common

understanding of a public authority. In such

an examination, in view of the indefinite

nature of the term "public authority", it will

perhaps be profitable, as Lord Haldane
suggested in the passage quoted above, to

adopt an "essentially negative method",

looking for features clearly alien to the concept of what is a public authority and

judging to what degree those features are

pervasive and important.

And finally, on page 311, Mr Justice Aickin, at

point 6 on the page, said:

In agreement with the views expressed in

the cases referred to above, I regard the
basic requirement as being that the relevant

Act under which the relevant body is said to be "constituted" should confer powers of an

exceptional nature not possessed by private
individuals or by companies formed by private

individuals under the provisions of the

Companies Act.

Finally, in this respect Your Honours, may we

take you to the Federal Commissioner of Taxation v

Silverton Tramway Co Ltd, 88 CLR 559. Another

taxation case, but in this case not income tax, but

rather exemption from sales tax. At page 565, in

the judgment of Chief Justice Dixon, about 15 or so

lines up from the bottom, His Honour said:

The word "authority" has long been used to

describe a body or person exercising power or

command. No doubt this has come about by a

transfer of meaning from the abstract

conception of power or command to the body or

person possessing it. But in relation to such	a public affair as public transport the use of
the word "authority" as a description of a
person or body implies he or it is an agency
or instrument set up to exercise control or execute a function in the public interest
whether as an emanation of the general
government or as an adjunct of local
government or as a specially constituted
officer or body.

And again the -

MASON CJ: So, stopping there, you are saying it is not an

authority?

MR JESSUP: That is so, Your Honour; not a public authority.

Cancer 39 20/3/92

MASON CJ: Just taking what has been said there, the passage

you have read out, that seems to suggest that a

body that lacks coercive powers is not an

authority.

MR JESSUP: Coercive or exceptional powers, Your Honour.

MASON CJ: Yes.

MR JESSUP:  And we say that. We will come to our Act in a

moment, Your Honour, but that is what we say.	We
are not an authority.

MASON CJ: So, that submission really does not rest on the

word "public"; it rests on the word "authority".

MR JESSUP:  Yes, that is so, Your Honour, yes. Now,

Mr Justice Webb dealt with the matter at page 568,

about four lines down from the top, His Honour

said:

As it cannot properly be claimed that

government or command is vested in them, or

that any public trust is discharged by them,

the mere fact that they are authorized by

legislation to the extent indicated does not

entitle them to be termed authorities, any

more than does their creation or constitution

by statute. To warrant that designation, they

must, I think, have authority to act for and

on behalf of the public, and not merely have

authority to use or encroach upon public

property, subject to providing compensation to

the public in some form or other, and to take

measures, even subordinate legislative
measures, in support of such use or

encroachment, but always for private profit.

And, of course, His Honour, there, I readily

accept, was principally concerned with making a

distinction between private undertakings and public

authorities.

MR JESSUP:  At page 570, Mr Justice Taylor, at about point 7

on the page, adopted the observations of

Mr Justice Rich in the Renmark Hotel case, and I

have already drawn Your Honours' attention to that

judgment.

MASON CJ: That denies the necessity for the possession of

coercive powers?

MR JESSUP: It does, Your Honour, but it asserts the

necessity for some exceptional powers not held by

normal people or companies under the Companies Act.

Cancer 40 20/3/92

MASON CJ:  Now, is it your submission that exceptional

powers, or exceptional authority, connotes the
power to do something that otherwise would not be

lawful?

MR JESSUP:	Yes, Your Honour, either to coerce or to regulate or to, as in Your Honour's terms, do
something that would not be open or lawful for
somebody else to do.
MASON CJ:	To an ordinary individual?

MR JESSUP:  Yes. Now, we say that there is nothing under

our Act which we can do which could not be done by

a carefully constituted private foundation.

BRENNAN J: There is the registration functions, is there

not?

MR JESSUP:  We do not do anything, Your Honour, we just

receive the reports. The way they send the reports

to us is prescribed in regulations of the Governor

in Council; we cannot control that, Your Honour,

we simply get the information and if it is not sent

to us we cannot prosecute.

BRENNAN:  You are just a collecting agency?

MR JESSUP: Just a repository, or a receiving agency for

that information and, indeed, under section 59 of

the Act the Governor in Council has power to

prescribe other bodies for just such a purpose,

bodies that might be more concerned with specific

types of cancer. Now, on our instructions, there

have been no such regulations made, but that is as

far as it goes, Your Honour.

MASON CJ:  Now, it may be possible to say that this

conception of public authority is the conventional

legal meaning that is assigned to the expression

and that its popular meaning is somewhat wider than

that. What do dictionary meanings say?

MR JESSUP:  We will be able to assist Your Honour with that

in a moment. At the end of the day this Court is
the only one that can say what the popular meaning

of a word is, and we would submit that this Court

has approached the matter in those terms in the

cases to which we have referred.

Regrettably we do not have authority, but the

dictionary does deal with "public" in the ways

which are arguably relevant for present purposes,

Your Honour, in these terms, "of or pertaining to

the people as a whole", which is not the meaning
that we would give it, but it clearly is a meaning

of "public" such as public toilet - - -

Cancer 41 20/3/92

MASON CJ:  But the problem is not so much with the meaning

of the "public", the problem is with the meaning of

the word "authority".

MR JESSUP: Yes, well, Your Honour, we do not have that and

I do not think it was in the compact OED from which

we have got some extracts, Your Honour. We have

"public service", we have "public utility", which

is:

service or supply such as electricity, water

or transport, considered necessary to the

community, usually controlled by a

nationalized or private monopoly and subject

to public regulation.

We have "public sector" - that part of an economy,

industry, et cetera:

which is controlled by the State at any level

of government.

But I am afraid we cannot find the particular

expression to which Your Honour is referring.

BRENNAN J: The nature, as I understand it, of "public

authority", in your submission, is that it is a

body vested either with coercive powers or with
extraordinary powers and that it is public if the
powers are to be exercised in the interests of the

public generally.

MR JESSUP: That would do, Your Honour. It is the second

part of that formulation which causes me to

hesitate. Our submission is, that it is public if

they are powers to be exercised of a governmental
or regulatory nature. That is the meaning which we
give to "public" but it would do, for our purposes,
if they were powers to be exercised in the

interests of the public generally, yes, but none

the less, exceptional powers not generally

available.

Moving from "public authority" to

"commissions" and "corporations", my learned friend

has not relied upon commissions and neither he

could because - - -

MASON CJ: There is no occasion to address us on

"commissions".

MR JESSUP:  No. As for "corporations": the interesting

thing about "corporations" is that the word is quite unrevealing as to the nature, powers and functions of a body of the kind to which it refers.

The word "corporations" is more concerned with the

formal status in law of the body, so "corporations"

Cancer 42 20/3/92

is not really in the same continuant as "authority"

because "authority" does not tell you what is the

formal status in law of the body. Rather, it gives

you some idea of what are the functions and what is

the role of the body. Its role is to act as an

authority. "Corporations", on the other hand,

tells you that it will be a legal person but

standing· alone it is otherwise quite unrevealing

and, therefore, unsatisfactory unless you carry

forward "public" to attach to it. In our

submission, "public" has to attach to "corporation"

and to "commissions".

"Corporation", if it is described by another

word, may have a sensible meaning. If it were

"municipal corporations", one would immediately

know that there is a tradition of such bodies in

the law. Likewise, "public corporations", at least

tells you something more about what they are than

"corporations" existing on their own, so we submit

that "public" has to be carried through to

"corporations".

BRENNAN J: The argument against that, I suppose, is that

the term "public authorities" and the term

"corporations" are both descriptive of capacities.

"Public authority", with its particular powers, and

"corporations" with their power to act as an

ordinary individual, natural person might be - - -

MR JESSUP: Yes. Well, that is one way of looking at it,

Your Honour, but it does not really deal with the proposition that a public authority is as likely as not to be a corporation. It is a very difficult

series of words to deal with. All we are concerned

to say is that you cannot deal with "corporations",

as it were, floating around without any adjective.

It has to be put in context in some way and the

most obvious way is to carry through "public".

Indeed, the words seem to get less specific as they

go further away from "public" and, therefore, more

in need of qualification, we would submit.

As so qualified, "public corporations", the expression must, in our submission, be read so as

to have the flavour of the rule as a whole, and the

flavour of the rule as a whole is that of State
government, or public service, in the traditional
sense and perhaps growing out to the peripheries

but, none the less, where there is a point of

ambiguity reached as to whether it is within or

without, it is essential, we say, to look back to

the point of reference which is the public service

and areas analogous to it.

We would urge upon Your Honours the same

approach as was taken in the Municipal Officers'

Cancer 43 20/3/92

case, 133 CLR 59. It was, likewise, submitted in

that case by the Municipal Officers' Association

that a university was a statutory corporation and,

therefore, capable of being covered by the body

which, for the most part, covers the local

government industry. In a joint judgment, in which

Your Honour the Chief Justice participated, that

argument was rejected and the rejection appears

from pages 68 to 70.	The rule itself is apparent
on page 68.

The Association shall consist of an unlimited

number of persons employed -

et cetera -

by Local Authorities, Cities, Municipalities,

Towns, Boroughs, or Shires, or by Statutory

Authorities, Corporations, Trusts, Boards or

Commissions -

and it was said that the universities were

statutory corporations because they were

corporations set up under statute, and no doubt the

same could be said by our learned friends here.

The argument was not accepted. At the bottom

of 68 Their Honours said:

We are not concerned to discuss what ambit the

words "statutory corporations" might have had

if they had appeared alone or in another

context.

About five or six lines down page 69:

However, it is not permissible to construe those words in isolation ..... they should if

possible be given a meaning that will render

them harmonious with the rest of the

instrument in which they appear.

And then about 10 lines beyond that:

In the context of the rule the generality of
the words "Statutory Authorities,

Corporations, Trusts,. Boards or Commissions"

must be limited by the other words, earlier
and later, with which they are associated, and

which show that they were intended to have

some flavour of local government.

And over the page Their Honours referred to an

earlier case concerning the same association, and

quoted from a judgment of Mr Justice Rich, in the

second half of which on page 70, His Honour had

said:

Cancer 44 20/3/92

and when the phrase 'statutory corporations'

or 'statutory authorities, corporations,

trusts, boards or commissions' is found in

such a collocation I think that the natural

and reasonable inference is that what is meant

is bodies of a public character exercising
functions of a public nature analogous to

those of local government bodies, and not

private bodies established by or under

statute, whether public or private, for the

purpose of conducting private enterprises or

activities."

And then, skipping through to the next

paragraph:

For the purposes of determining the present matters it is unnecessary and

therefore undesirable to attempt to define the

full scope of the words of rule 5. Once it is

accepted, as it must be, that the words

"statutory corporations" in rule 5 refer only
to corporations of the public character
exercising public functions analogous to those

of local government bodies it becomes clear

that persons employed on the staffs of

universities are not eligible to be members of

the Association -

GAUDRON J: Is there any analogy to be imported into

rule 3 (G)?

MR JESSUP:  Yes Your Honour; the analogous application of

that principle is that here you have public

corporations analogous to those of State government

bodies, exercising - - -

GAUDRON J: Well, if "State" goes, say you are dependent

only on the public being carried across, rather

than State?

MR JESSUP: Public in the sense, Your Honour, from the

public service and then outwards. In other words,

we do not have universities, we do not have

municipalities, we do not have public companies and

we do not have public charities, because those are

not bodies which have the flavour of State

government administration, which is the flavour

possessed by this rule, in our submission.

Now, some areas of State government

administration are not government administration in

the traditional sense; they are concerned with

electricity supply; they are concerned with all

manner of areas into which the government has gone,

but we would say that there is an important

Cancer 45 20/3/92

distinction between the State through the agency of

its legislature and its executive, deciding to

concern itself in a non-traditional area, on the

one hand, and a non-traditional non-government area

simply being given an incorporating Act to enable

it to carry out its traditional functions, and we

submit there is a distinction there which, when the

flavour of the rule is identified, puts our client

outside it.

Now one can also rely, we submit, if there is

any ambiguity about the matter, upon the name of the association, it is the State Public Services

Federation, and we submit that, when you look at

rule 3(G) as a whole, you see that the predominant

concern of the draftsman of that rule was with the

public service and with areas analogous to it, such

as the State instrumentalities and bodies of that

kind.

Now, if we could turn from the legal framework

to the provisions of the Cancer Act: the objects

and powers are set out in section 5, as my learned

friend has indicated, but when you look at them,

you will see that they lack any substantial

connection with government, or public
administration and you will see that they are
enabling, rather than coercive or regulatory. The
Council cannot take any regulatory steps to obtain
money from people. It is subject to the
beneficence of the community and, having obtained

the money, the way it marshals that money is the

way it achieves its objects.

I notice Your Honours have been looking at the

time. If Your Honours are wondering about how much

longer I will be going or whether this is a - - -

MASON CJ:  I was about to ask you that question, Mr Jessup.

We are under no time constraints, so that -

MR JESSUP:  No, I appreciate - the convenience of

Your Honours. It will probably be about 15 or

20 minutes, I suspect.

MASON CJ: Yes. I think we will adjourn now and resume at

2.15.

MR JESSUP:  May it please the Court.

AT 12.48 PM LUNCHEON ADJOURNMENT

Cancer 46 20/3/92

UPON RESUMING AT 2.18 PM:

MASON CJ:  Yes, Mr Jessup.

MR JESSUP: If the Court pleases. In the adjournment we

have taken some photocopies of the dictionary

meaning of "authority" and it might assist

Your Honours if we were to hand up those.

MASON CJ:  Thank you. Are there any that are relevant?

MR JESSUP: Yes, Your Honour. The relevant one in the OED,

which is the first page, is meaning number 3 in the

second column.

MASON CJ: Yes.

MR JESSUP:  And Your Honours will see in the examples given

towards the end of the 19th century at least one

has some meanings that relate to the matter in

hand.

MASON CJ: Yes.

MR JESSUP:  And the second page is the Macquarie

Dictionary - the second and third pages - the meaning of "authority" is given at the foot of the right-hand column and extending over on to the next

page, and the relevant one as we understand it is

number 2. And, in our submission, the everyday

meaning of "authority" -

MASON CJ:  Is consistent with the meaning

MR JESSUP: It is, Your Honour, yes. Now, returning then to

the Anti-Cancer Council under its Act, the objects

and powers in section 5 do, we submit, lack any

substantial connection with government and are not

regulatory or coercive, rather they are enabling

powers, the standard sort of powers as you would

expect to find possessed by any corporation.

Now, what the Council actually does, in so far

as it may be gleaned from the Act, may be gleaned

from the structure of committees for which the Act

provides. Section 15 provides for the finance

committee - or section 14 provides for the
committee, but section 15 tells one what the

finance committee does. Section 17 tells one what

the medical and scientific committee does. It

advises:

the executive committee as to -

Cancer 47 20/3/92

(i)     the nature scope and method of promoting

investigations and research with respect

to cancer and allied conditions and with
respect to the causation prevention and
treatment thereof;

(ii) the selection of suitable officers to be

appointed by the executive committee for
these purposes and the terms and

conditions of their appointment.

There is then an appeals committee and

section 18(3) tells you what the appeals committee

does. In essence. it is the fundraising part of

the Council.

Now, the whole is under the superintendents of

the executive committee provided for in section 12 and the constitution of the executive committee is set out in subsection (2) and it is very

substantially constituted by appointees of the

other committees, together with appointees of the

Council itself and two co-opted members.	And,
Your Honours, the Act is very simple.	So far as

functions and purposes go, that is about the extent
of it. The Act does not say that the Council can
do things that ordinary people cannot do; fleshed
out with those powers in the nature of the powers
of a corporate body, it just has to do the best it

can, getting the money it can from public purposes

and then channelling that money into what it

perceives to be the most useful areas of research

and so forth.

Now, although there is obviously something

beneficial to the public in this work, there is

nothing, we submit, about it which is public in the

flavour of the Public Service Federation's

eligibility rules.

The Full Bench, at pages 231 to 232, and my

learned friend has taken Your Honours to these, but

it must be remembered that the Full Bench, at those

pages, made some findings of fact. In so far as
those findings of fact bear upon the question then,

of course, they must stand, and they have not been

challenged, as we understand it. The Full Bench

found that the Council itself is run by a Council

consisting largely of nominees:

to represent specific non-government interest

groups.

That is so, although the members of the Council,

whose constitution is provided in section 6, do

consist of a number of people appointed by the

Governor in Council, that appointment is made upon

Cancer 48 20/3/92

the nomination of various other bodies set out in the second schedule. So, the Governor in Council

is, if you like, merely a conduit nominator. The

fact that he makes the nomination is no more than a

point of convenience. What the Act is concerned

with is drawing together disparate areas of

expertise and interest and giving them

representation on the Council.

Below the Council, as the Full Bench found,

the management of our client rests on a system of

committees:

made up of persons acting in a voluntary

capacity.

Again, all of these people to whom the Act refers,

and the sections that we have just mentioned, are

volunteers. These are not just voluntary helpers

in the sense that my learned friend referred to

them - voluntary helpers in hospitals and in State

schools and the like. These are people who are

identified by the Act as having the administration

of the body in question and they have the

responsibility for running this body.

Below that, of course, we have the people that

my learned friend would refer to as voluntary
helpers, but they are not the odd groups of people

that you might find in other areas who are coming

in to help. They are more than helpers. There are

2000 of them, the volunteers, compared to 100 on

the staff. So, the dominant impression one gets is

that this is an organization which is run by

volunteers and that, we would submit, is a

factor - it may only be a straw in the wind, but we

would have it to be more than that - showing that

this is not a public body or public corporation in

the sense intended.

Now, the Full Bench found in point of fact

that the Council operates as a body substantially

independent of government. At page 232 about

line 22 or 23, the Full Bench found that -

the legislature intended the ACCV to be a body

substantially independent from government -

which is, of course, something which will be for

Your Honours in this case, but they went on to

find -

and that in fact it operates in this way.

Part of the reason for them expressing that is contained in their points listed above, the

lobbying and the political activities of this body.

Cancer 49 20/3/92

If it were truly a public authority or a public

corporation they would hardly be necessary. They

would either be unnecessary or they would be
pointless. These people would either have the
power to do what they wanted to do, or they would
be part of the public machinery, if you like, in

which someone else would tell them what they would

or would not do. But they act in a private

capacity lobbying the opposition as well as the
government, and that is something which we say the

Commission below was entitled to take into account in identifying in point of fact whether this was a

public corporation.

Now, the 4 per cent or thereabouts of the Council's budget which comes from government is the

government's assistance in financing the cancer

registry. Now, this is something which my learned

friend relied upon and it is dealt with by Part III

of the Act commencing on page 26 of the

consolidation which we have handed up to
Your Honours.

I made submissions about the nature of this registry. In fact, the registry is not referred to

in the Act at all in terms. Section 60(1) requires

the hospitals to send information through to our

client, but it does not say what our client has to

do with it. Subsection (2) requires other people

to forward a report to our client.

Now, regulations have been made under

subsection (1) prescribing the time and the form in

which and at which those reports must be sent.

Regulations have also been made under

subsection (2A). But there it is, the Act does not

take the matter any further than that.

Furthermore, if one looks at section 60(2) the Act

contemplates that any other person might by

regulation be prescribed as a recipient of such

reports.

Your Honours will see from subsection (1) that

a register can be prescribed in relation to any

other organization, and if one goes back to the

definition of ttprescribed registertt, on the

previous page, a ttprescribed registertt is defined

as:

to cancer of the cervix -

in a particular way

in relation to cancer of another part of the

human body -

Cancer 50 20/3/92

in a way which is left dependent on the

regulation,and likewise under paragraph (c). Our client is not mentioned in that scheme of things,

and it does not have to be because it is dealt with

in section 60. But what we say is that it is no

part of the function of conducting a register, for

the purposes of this part of the Act, that one

needs to have any connection with public matters,

or there needs to be a public authority in any

sense at all. It is just a convenient way of

keeping a register of cancer generally, and of

particular types of cancer, and then Your Honours

will see that the Act goes on to require these

reports to be confidential and yet to require

access to be given to them by people who are

conducting research and that kind of thing. It

really is just a mechanism of centralizing statistics as to cancer, and in part it is

maintained by the Council, but in other part,

although not yet prescribed, the Act contemplates

that others might be so.

And furthermore, as the Full Bench found, the

Council has, in the past, acted as it were in a

coalition with government and with other

authorities, as in the Quit campaign in which it

acted in coalition with the Department of Health;

not subordinate to it, but as a free-standing

agency as we would have it. Now we reiterate that

the Council does not possess coercive or regulatory

powers. It has limited rule-making power under

section 31 but that, as we would understand that
section, is for administrative purposes in running

its own affairs and Your Honours will see that that

is the sense in which the rule-making power is

given in section 31.

It certainly cannot make rules about cancer.

it cannot make rules requiring people to wear sun

hats or anything of that kind and it does not have

the power of subordinate legislation. It cannot

make by-laws as many bodies that have been held not

to be public authorities in other instances have

been able to do. It cannot regulate or order the

behaviour of any person. It is not a prosecuting

authority. It achieves its objects simply by its

capacity to attract, marshal and direct substantial

sums of money and in that way it can ensure that

research is co-ordinated and also targeted in the

areas where it is most needed and, of course, money

can be devoted to public campaigns, advertising and

the like.

It achieves its objects also, we submit, by

the use of substantial amounts of volunteer labour and on the evidence neither of these would, in the

Cancer 51 20/3/92

view of the witnesses which our client called, be

available to it to such an extent if it were

identified with government. And that is at

pages 424 to 426 of the second volume of the appeal
book. And, of course, it is the expertise within

its committees which is largely productive of its

objects.

Therefore, as we say, there is nothing really,

when one analyses this legislation, or when one

looks at the findings below as to how in fact the

Council operates, which puts this body into the
category of a public authority or a public

corporation. Unless there is anything further we

can assist Your Honours with, those are the

submissions on behalf of the respondent.

MASON CJ: Thank you, Mr Jessup.	Mr Wright.
MR WRIGHT:	My learned friend placed a great deal of

reliance on the name and the rules, as I will call

the eligibility rule, as a whole, of the

Prosecutor. As I think emerged during argument,

there are a large number of exclusions in the

eligibility rule and they can be described

generally in two ways: firstly, there are those

exclusions which are general, that is, across the

board without necessarily being limited to a

particular State or states, although when one comes

to those general exclusions, one often finds them

divided into State subcategories. For example, at

page 50 of the application book, the exclusions

commence and they are the more general exclusions,

but nevertheless one finds those divided up into subcategories, for example the first subcategory

relates to "Victorian Instrumentalities" and

indeed, if one goes over the page to page 51, one

finds a number of exclusions in relation to

railways commissions and boards of works and so on,

and one will see from approximately line 20 in the

first column, references to various Victorian

bodies such as the Melbourne and Metropolitan Board of Works; Port of Geelong Authority, et cetera, and

the Court has already had its attention drawn to
the general exclusions in the municipal area at the
foot of that same column.

The specifically separate Victorian exclusions, commence at page 56 and they cover a

wide variety of areas. I think there was

reference, for example, to persons employed by the

University of Melbourne as academic staff at about

line 58, again in the first column. Elsewhere in
the rules there is reference to coverage of certain

classes of University and College of Advanced

Education employees.

Cancer 52 20/3/92

That comment really leads to the next point, that my friend makes the submission that the

Prosecutor's rules, or coverage, is predominantly

in the public service, and that is simply not

correct. It may be true to say that its coverage is predominantly in the public sector, but in the broad sense of that term, but there are quite a

number of areas where its coverage is not limited

to the public sector, even in that broad sense.

For example, at page 48, lines 40 and following, in

the right-hand column, there is reference to

coverage in charities and private hospitals in New

South Wales.

At page 50, a page which I have travelled past, towards the foot of the left-hand column and

in the top quarter of the right-hand column, there

is reference to coverage of private hospitals in

Western Australia, and to a number of charities or

similar bodies, The Spastic Welfare Association, the Silver Chain Nursing Association, and so on.

So that the rule, dare I say it, bears the scars of history both in terms of what it includes

and what it does not include. It, in my

submission - and I will come back to the Municipal

Officers' Association rule in more detail later

when I look at the case my friend relied upon, but

it is really quite a different situation to that

rule which had, as it were, four corners within

which it operated. This rule does not. It is

quite a amorphous and general in nature and
although, I suppose, as unions in the public

service or public sector in this State has

developed, it started off in the centre, it has

moved. So that, with respect, my learned friend

cannot draw assistance from the general nature of

the rule or its name, we say, because the name is

no more than a mere label, to read down any phrase

in this part of the rule or, for that matter, other

parts of the rule.

BRENNAN J:  What about the rule as it was taken over from

the Victorian Public Service Association?

MR WRIGHT:  Your Honour, my friend invites the Court to say,

"Well, because that's its name it must, therefore,
be so confined". That really is a question begging

argument. The fact of unions having particular

labels says often more about their history than

about their present.

BRENNAN J: 

What I was thinking of, is that leaving aside

the totality of the rule, is there any validity in
approaching the construction of the relevant clause
here in the context of what was taken over from

Cancer 53 20/3/92

Victoria alone, without looking at what came from

New South Wales or Western Australia or elsewhere?

MR WRIGHT: Well, Your Honour, I do not think the answer to

the question is any different. The structure of

the rule is clearly not intended to be limited to the name of the body whence it came. For a start it is not, on any view of the rule, confined to the

Victorian public service, although the name of the

body was the Victorian Public Service Association.

So my friend seeks to rely on this label, but the

first time it is tested it fails, so that one does

not gain the assistance he says one can get from

that. But then one has to look at the rule and

assume that as - particularly a body which was a

non-registered body, it did not have to face

"conveniently belong" tests and matters such as

that - it would seek to cover its vernacular back,
as it were, and look to the future, bearing in mind

the way in which the public sector has developed, not just recently, but over the last decades. So

that is why you have this rule which, as I

submitted earlier, commences in the centre and then

travels to the periphery.

Now my friend relies upon what he describes as

findings of fact and I suppose, on one view, that

can be a description, but there are three points we

would make about that. Firstly, these are the

matters referred to in paragraphs 231 to 232. The

major criticism we make is the failure to take into

account the most important features of the Act,

sections 5(1) and section 60 and the failure to

treat those factors as predominant. What the

Full Bench did was to treat these factors as

predominant. Now, the second point is that these

factors are firstly to be subordinated to the

statute. At the end of the day we say many of

these factors end up carrying little weight at all,

and having said that, properly considered, and I

went through this in some detail, many of these

matters are neutral factors or, again, point up the

public health role of the Anti-Cancer Council.

There was cross-examination by my client of

one of my friend's witnesses, Dr Gray, at

pages 267 - I do not ask the Court to go to this -

and 268 - and Dr Gray who was, I think, in effect,

the Chief Executive Officer, indicated that he saw

the Anti-Cancer Council as only acting consistently

with the objects laid down in the Act - that is at

page 267 - and at page 268 the lobbying activities,

which were called "political activities", again
were seen as being consistent with the objects

under the Cancer Act. Indeed, Dr Gray proffered

the view that Parliament had the opportunity to, as

it were, change the Act if it felt those activities

Cancer 20/3/92

were improper and it decided not to. Now, at the

end of the day they are probably minor factors, but

they do tend to put into perspective the

predominance of the Act even in the mind of the

Chief Executive Officer.

The third point we would make about these

matters is that they are all premised on the wrong test formulated at the top of page 231. My friend

went to the Act in some detail. Can I just say a

few things about that. Part III of the Act is

entitled - and this is page 26 of my learned

friend's print - Cancer Reporting and Registers,

and as I recall it, the Act prior to its amendment

in 1989 entitled Part III as Cancer Reporting, and

the side note - I am sorry, I will not proceed any

further with that.

Now, the important thing about these

provisions is that it does oblige all these bodies,

both public and private, both corporate and

individual, with a legal obligation to report to

the Council. My friend says that the Council does

not have the power to prosecute. Section 60(3)

appears to be a common informant provision. Now,

the Anti-Cancer Council may choose not to prosecute

but, in my respectful submission, it would have

power so to do.

The other important feature to note is that

the first object of the Act in section S(l)(a) is
to co-ordinate in Victoria all activities relating

to research with respect to cancer, et cetera.

GAUDRON J: Is that its undertaking as well as its object?

MR WRIGHT:  Yes, Your Honour.

GAUDRON J: Is it obliged by the Act, however, to pursue

that course, or is it only the object of the Act?

MR WRIGHT:  It is obliged to do it, in my respectful

submission, because when one reads subsections (1)

and (2) together one sees that the objects are also

to be construed as the powers.

GAUDRON J: Yes, well I could understand objects being

construed as powers. I am not too sure that that

is sufficient to make it an undertaking under

statute; they, I assume, being powers that those

objects could bring about.

MR WRIGHT:  One of the significances of this, Your Honour,

is this: that the Parliament of Victoria has said,

"This is your function''.	The implication of that
is that it - - -

Cancer 55 20/3/92

GAUDRON J:	No, this is your power and your object?
MR WRIGHT: And, in my submission, function.	It would be

surprising, to say the least, for the Parliament of

Victoria to, on the one hand, describe - I will

limit my use of the term to the word "object" at

the moment - to describe the object of the Council

to co-ordinate in Victoria all activities relating

to research, et cetera, and then, on the other

hand, say to the health department, "Well, you do

this as well" .

So, at the end of the day it is not only a

positive conferral of object, but it must be a

conferral of function and undertaking because

implicit in that is that it is not given to other

bodies, which one could imagine another parliament,

in a different State, would say, "This is a matter

for the health department or a research institute

we might set up", and of course these are all in

the areas of public health, a specialist part of it
but, nevertheless, that area. So, it is not only

the express conferral of object and then, in

effect, power, but the implication of that as to

what is not done elsewhere.

GAUDRON J:  Maybe not done elsewhere within the Government

organization, but it could be done elsewhere if

some other group of people established themselves

with similar objects? It is really just a question of making that undertaking come from under the Act,

Mr Wright.

MR WRIGHT:  The difference is, I suppose, this, Your Honour,

that this body, in our submission, has the

statutory imprimatur, for want of a better word, to

do this, whereas any other body would, simply, have

a wish list.

GAUDRON J: Yes, the question is, does statutory imprimatur

suffice to make it an undertaking carried on under

an Act?

MR WRIGHT:	We say so, Your Honour, because at the end of the day - and of course there are ancillary matters
in actual treatment and clinics and other matters
such as that related to this - at the end of the
day the whole purpose of the charitable activities
of this body are to fund the research, the cancer
reporting, the clinics, the investigation and all
those sort of matters, they are all for that
purpose.

Now, I have to accept that the Act could be

better expressed from our point of view, but they are the constructions for which we would content,

arising out of the construction of the Act. My

Cancer 56 20/3/92

friend relies, of course, upon committees, but we

say that they are simply administrative
arrangements within the umbrella structure of the

Council itself, its objects and powers.

My friend took the Court to R v Gough; Ex

parte Municipal Officers' Association. Now the

Ccourt in that case made clear, and this is at

page 68 point 9 of 133 CLR, that it was looking at

the term "statutory authority" only as it appeared

in the specific rule. Now the analogy our learned
friends would ask the Court to draw upon is that,
just in that case, the term was construed as only
covering bodies analogous to local government

bodies, so here to the concept in the rule that we

rely upon must be construed as analogous to the

powers of State government bodies.

Now, there are two answers to that: when one

talks about the powers of State government bodies

or State government functions, one is simply

picking out from the general area of government functions, those carried out sometimes by State

bodies and, of course, there is often no clear line

between State and federal. Now unlike local

government functions which, in the scheme of

things, are more fixed and clear cut as local

government functions, when one comes to the notions

of government functions, one is dealing with a much

more amorphous concept. The passage I have cited

from Sir Victor Windeyer's judgment in the

Professional Engineer's case is evidence of that.

That passage was adopted in terms by Your Honour

the Chief Justice and Justice Wilson in The

Committee of Direction of Fruit Marketing case.	So
that one cannot proceed from an analogy in the local government area, where one can have more
useful concepts or analogies, to the government
area because one is not in the same more fixed
area.

Now, the other answer is this: that the functions here of the Anti-Cancer Council are

analogous to government functions; they are in the

field of public health; they relate to research in
a major area of medical research and the cancer
registry, on the evidence at page 360 of the appeal

papers, that function is performed in every other

State by the Health Department.	So the analogy is
there.

My friend relied upon The Committee of

Direction of Fruit Marketing case, and particularly the judgment of Mr Justice Gibbs, at page 580,

144 CLR, as being a test which would defeat our

argument here. The passage, as I recall, it was -

at about point 6 on the page:

Cancer 57 20/3/92

The words "authority of a State"

naturally mean a body which is given by the

State the power to direct or control the

affairs of others on behalf of the interests of the community or some section of

it.

Certainly, the second part of that formulation,

that is:

for the purposes of and in the interests of

the community or some section of it -

is applicable here. We have made certain

submissions about the effect of sections 5 and 60,

and I do not repeat those. We say two things:

that that test is satisfied here or, alternatively,

restrictive concept than that of a public authority. If the Court held that the Anti-Cancer	the criterion of authority of a State is a much formulation, then one would look to the more broad
concept in the Renmark Hotel case.

If it necessary for the body to have

exceptional powers, as discussed by Justice Rich in that case, then we say those exceptional powers are

to be found in section 60, but it is important to

note that they were not features of the discussion

of the judgments of the Chief Justice and

Mr Justice McTiernan in that case. We submit, in

any event, that the approach of the requirement to
have exceptional powers is too restrictive in the

context of union rules and, we say, that one would

look most readily to the formulation in the

judgment of Justice McTiernan in the Renmark Hotel

case.

There is one other point to be made about

those cases. They, of course, are cases in

relation to the seeking of an important benefit

under the Income Tax Assessment Act, that is the

benefit of an exemption. One would inevitably find

a more limiting approach would be adopted in such

circumstances than one might find in a case of

construction of union rules.

My friend raised a number of examples. Can we

just say, very briefly, one or two things about

each of them? The Law Institute of Victoria, in

our respectful submission, was simply a
question-begging example; the reference to the

Melbourne Cricket Club does point up very usefully

the difference here. There is a great difference

between the activities of a body such as that, even

from the person in the streets point of view, and a

Cancer 58 20/3/92

body such as the Anti-Cancer Council. The fact

that a body like the Melbourne Cricket Club may
have educational or sports promotion activities,

does not put it in the same class as a body which

has the public health functions of the Anti-Cancer

Council.

Lastly, the other example, but this was given

more by way of reference to authority, was the

reference to the Western Australian Turf Club,

139 CLR 288, in the relevant case. We would draw

the Court's attention to the passage in the

judgment of Mr Justice Stephen at the foot of

page 294 and the top of page 295. It, in effect,

is the last incomplete paragraph on page 294 to the

end of the first complete paragraph on page 295.

Can I just invite the Court's attention to the

first complete paragraph on the second page, which

is in these terms:

However, to confer a public function and

powers exercisable in the public interest upon
a body which has previously carried on, and

will continue to carry on, distinct activities

not in themselves characteristic of a public

authority may not suffice to confer upon its

revenue the immunity which section 23(d)

affords.

We say, we are looking at two entirely different

bodies. I accept, to an extent, this may be also a

question-begging argument, but the powers and

functions or activities of the Anti-Cancer Council

have always had a public character. Certainly,

with the amendments in 1980 as to the cancer

registry, they were enhanced, but they stayed very

much in the same flavour, in the same order,

whereas, of course, looking at the Western

Australian Turf Club, we had clearly private

activities performed in the past and continuing in

expressly says, they were activities of a	the future, and presumably - well I think the case
profit-making nature. That, of course, is not a feature of the Anti-Cancer Council. All those cases, by way of analogy, point up the quite
distinctly different role of the Anti-Cancer
Council.

At the end of the day the strongest argument

we have, of course, relates to the "corporation

under any statute". We expressly rely upon that.

We, of course, have also made submissions about the

other categories, but we submit that it certainly

is open for the Court to find on that category the

corporation under a statute and the public

authority. I do not wish to say anything further

about the statutory instrumentality notion.

Cancer 59 20/3/92

MASON CJ: Thank you, Mr Wright. The Court will consider

its decision in this matter.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

Cancer 60 20/3/92