Australian Postal Corporation v Williams - [2024] NSWCATAP 168 - NSWCATAP 2024 case summary — Zoe

NSWNSWCATAP

Australian Postal Corporation v Williams

[2024] NSWCATAP 168

NCAT Appeal Panel|2024-05-31|Before: Armstrong J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2024-05-31

Before

Armstrong J

Catchwords

[2016] NSWCA 248 Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136
[2001] HCA 1 Bank of New South Wales v The Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1
[1948] HCA 7 Bir v Secretary, Ministry of Health [2024] NSWCATAD 178 Burns v Corbett (2018) 265 CLR 304
[2018] HCA 15 Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216

Source

Original judgment source is linked above.

Catchwords

[2016] NSWCA 248 Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136[2001] HCA 1 Bank of New South Wales v The Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1[1948] HCA 7 Bir v Secretary, Ministry of Health [2024] NSWCATAD 178 Burns v Corbett (2018) 265 CLR 304[2018] HCA 15 Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216[2022] HCA 16 Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219[1992] HCA 6 Felton v Mulligan (1971) 124 CLR 367[1971] HCA 39 Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334[1969] HCA 44 J S McMillan Pty Ltd v Commonwealth of Australia (1977) 77 FCR 337[1997] FCA 619 Maguire v Simpson (1977) 139 CLR 362Ex parte Defence Housing Authority (1997) 190 CLR 410[1997] HCA 36 SGH Limited v Commissioner of Taxation (2002) 210 CLR 51[2002] HCA 18 Rizeq v Western Australia (2017) 262 CLR 1[2017] HCA 23 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639

Judgment (17 paragraphs)

[1]

Background

In the proceedings commenced in NCAT on 4 February 2023, Mr Michael Williams sought compensation in the amount of $20,000 from Australia Post in respect of lost parcels. He purchased goods online from Amazon which arranged delivery through Australia Post, and alleges the goods were lost in transit and not delivered by Australia Post.
Mr Williams alleged that Australia Post engaged in misleading and deceptive conduct in breach of s 18 of the Australian Consumer Law (NSW) (ACL) and did not comply with the consumer guarantee in s 60 of the ACL in that it did not provide its services with due care and skill.
The Fair Trading Act provides that any consumer may apply to NCAT for determination of a "consumer claim" (s 79I). A "consumer claim" is a claim by a consumer, for one or more of certain specified remedies, that arises from a supply of goods and services by a supplier to a consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services (s 79E(1)). One of the specified remedies is the payment of a specified sum of money (s 79E(1)(a)). The ACL is incorporated into the law of NSW by s 28(1) of the Fair Trading Act, and, under s 79J of that Act, NCAT has jurisdiction to hear and determine a consumer claim the subject of an application.
On 14 July 2023, in the decision under appeal, the Consumer and Commercial Division (CCD) of NCAT decided that it had jurisdiction to exercise judicial power in a matter to which Australia Post is a party, and therefore had jurisdiction to determine the dispute before it: see Williams v Australian Postal Corporation t/as Australia Post [2023] NSWCATCD 79 (the First Instance Decision). In summary, the Tribunal below held that the constitutional implication identified by the High Court in Burns v Corbett - that a state tribunal that is not a "court of a State" cannot exercise judicial power in a matter in federal jurisdiction - was not engaged.
Australia Post lodged its appeal from that decision on 11 August 2023; the appeal was deferred pending the resolution of another internal appeal dealing with the same jurisdictional point. On 1 December 2023, in a similar proceeding involving a dispute under the ACL between a company and Australia Post, a differently constituted Appeal Panel of NCAT held that NCAT did not have jurisdiction to exercise judicial power in a matter to which Australia Post is a party: see Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 (Lux Cuttings). In summary, that Appeal Panel held that the Burns v Corbett implication was engaged because Australia Post is "the Commonwealth" within the meaning of s 75(iii) of the Constitution, and therefore NCAT was being asked to exercise judicial power in a matter of federal jurisdiction.

[3]

Respective positions of the parties

In its Notice of Appeal, Australia Post seeks orders that NCAT does not have jurisdiction to exercise judicial power in proceedings in which Australia Post is a party; and, that the application of Mr Williams of 4 February 2023 be consequently dismissed for want of jurisdiction.
As a preliminary question, Australia Post contends that it is "genuinely arguable" and "not manifestly hopeless" that Australia Post is the Commonwealth, and that is sufficient to deprive NCAT of jurisdiction. If that proposition is not accepted, the appellant submits that NCAT has "incidental jurisdiction" to "form" an "opinion" on whether or not the present dispute before it is in federal jurisdiction, consistent with Citta. That opinion should be that Australia Post is "the Commonwealth" for the purposes of s 75(iii) of the Constitution, and therefore NCAT does not have jurisdiction to determine Mr Williams' consumer claim.
Australia Post also submits that the Appeal Panel constituted in this appeal should follow the earlier Appeal Panel decision in Lux Cuttings unless convinced it is plainly wrong. The appellant contends that the Appeal Panel in Lux Cuttings was clearly correct to hold that Australia Post is "the Commonwealth".
Mr Williams says that Australia Post is not "the Commonwealth" for the purposes of s 75(iii) of the Constitution and therefore no issue of federal jurisdiction arises. He concedes that if Australia Post is "the Commonwealth", NCAT would likely lack jurisdiction to hear and determine his consumer claim.
While Mr Williams did not lodge a 'Reply to the Appeal' or file submissions in accordance with timetabling directions, he sought leave to file written submissions at the appeal hearing on 31 May 2024. Counsel for Australia Post did not object to leave being granted to Mr Williams to file his submissions at the hearing, but noted that he did not have instructions on how to proceed on this point and that the submissions were quite lengthy. Counsel accepted that there would be no prejudice to Australia Post if we granted leave to Mr Williams on the basis that the appellant would have an opportunity to provide written submissions in reply after the hearing. Australia Post was provided with six weeks to file and serve written submissions in reply, which occurred.

[4]

Issues for determination in this appeal

Australia Post appeals on a question of law. The question of whether Australia Post is "the Commonwealth" for the purposes of s 75(iii) of the Constitution meets that criterion. It is to be determined by a process of interpretation and evaluation by reference to statute. Whether the Tribunal has jurisdiction more broadly also qualifies as a question of law.
Given the questions to be decided raise questions of law, this appeal may proceed without leave: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
The decision under appeal is a preliminary decision about whether NCAT had jurisdiction under the Fair Trading Act and NCAT Act to hear and determine the consumer claim. We are satisfied that the decision under appeal is an "ancillary decision" within the meaning of the NCAT Act, and that the appellant may appeal as of right on a question of law. Section 4 of the NCAT Act contains relevant definitions as follows: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter… … interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - … (i) any other interlocutory issue before the Tribunal.
We acknowledge that there are differing views regarding whether a Tribunal decision which is not a final decision, and is instead a decision concerning the preliminary issue of whether the Tribunal has jurisdiction, is more properly characterised as an "ancillary decision" or "interlocutory decision" (see eg AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [123]-[128]). The definition of "ancillary decision" makes specific reference to a decision which is "preliminary to… a decision determining proceedings" and to jurisdiction. On the other hand, the definition of "ancillary decision" in its chapeau includes the words "(other than an interlocutory decision of the Tribunal)" which might be taken to direct attention to whether the decision under appeal is an "interlocutory decision" before going on to consider whether the decision under appeal is one concerning jurisdiction.
While we consider the decision under appeal to be an "ancillary decision" for the purposes of the NCAT Act, if we are wrong and the decision under appeal is classed as an "interlocutory decision" with leave to appeal being required under s 80(2)(a) of the NCAT Act, we would grant leave based on the fundamental importance of the principle that NCAT must satisfy itself it has jurisdiction to deal with a matter.
The issues for determination in this appeal are: 1. as a preliminary question, whether the raising of the contention, on a genuine basis, that Australia Post is "the Commonwealth" for the purposes of s 75(iii) is sufficient to deprive NCAT of jurisdiction; and 2. if not, whether NCAT has jurisdiction to hear and determine the consumer claim proceedings brought by Mr Williams to which Australia Post is a party because s 75(iii) of the Constitution is not engaged.
There is no issue, and we are satisfied, that the determination of consumer claims of this nature under the Fair Trading Act and the ACL by NCAT involves the exercise of judicial (as opposed to administrative) power. There is a justiciable controversy between the parties that can qualify as a "matter" in the constitutional sense.

[5]

Consistency in NCAT Appeal Panel decisions

Before turning to issues (1) and (2) above described, we will address the appellant's submission that the Appeal Panel constituted in this appeal should follow the earlier Appeal Panel decision in Lux Cuttings insofar as it held that Australia Post is "the Commonwealth" for the purposes of s 75(iii), unless we are convinced that the earlier Appeal Panel decision is "plainly wrong". Conversely, the appellant submits that we should not follow that earlier Appeal Panel decision on the preliminary question, contending that the Appeal Panel constituted in Lux Cuttings was "clearly wrong" on that issue.
In Mustac v Medical Board of Western Australia [2007] WASCA 128 (Mustac) at [38], Martin CJ (Wheeler and Buss JJA agreeing) observed: "The practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each court in a judicial hierarchy to follow and apply decisions of any court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of courts of co-ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way."
The practice of judicial comity does not operate within NCAT. That said, there are compelling reasons why similar principles of "comity" might be adopted by tribunals. As Martin CJ indicated in Mustac at [37], principles of good administration and consistency of decision may be relevant to the approach properly taken by a tribunal. Like courts, there are a number of examples where tribunals not strictly bound by their own decisions have adopted an approach based on "comity" in order to promote principles of good administration and consistency of decision-making.
Statutory objects of the NCAT Act include: ensuring that the decisions of the Tribunal are "timely, fair, consistent and of a high quality" (s 3(e) (emphasis added)), and promoting "public confidence in tribunal decision-making in the State…" (s 3(g)). Consistency of decision-making across NCAT promotes public confidence in NCAT and its processes. While the principles of consistency are important, nonetheless the duty of NCAT Members remains that of deciding the cases before them justly and fairly, according to the "substantial merits" of the case: NCAT Act, s 38(4).
There is no hierarchy in Appeal Panel decisions, and no Appeal Panel is bound to follow an earlier Appeal Panel decision. That said, where an Appeal Panel is asked to follow a determination of another Appeal Panel (being at an equivalent level in the Tribunal hierarchy) on a question of law, the later Appeal Panel should consider doing so, unless persuaded that the earlier determination on the question of law is wrong. If that later Appeal Panel takes a different view on the same question of law, it should make clear its reasoning as to why it considers the earlier Appeal Panel determination is wrong.
In The Owners - Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48, the Appeal Panel (constituted by two presidential members and a principal member) stated at [15], in relation to conflicting Appeal Panel decisions: "The Appeal Panel is not bound by the doctrine of precedent and may depart from the rulings of an earlier Tribunal or Appeal Panel where it is considers it to be 'plainly wrong': Ku-Ring-Gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181 at [15] - [17]. Because NCAT is not bound by the doctrine of precedent, in theory, none of the conflicting decisions takes precedence."

[6]

Issue (1): Can NCAT determine the question of jurisdiction?

NCAT must determine its jurisdiction which, in this context, means it must decide whether federal jurisdiction is invoked. Deciding whether federal jurisdiction is invoked is not an exercise of federal judicial power.
The Appeal Panel constituted in Lux Cuttings considered whether it was enough to deprive NCAT of jurisdiction where it was genuinely arguable that a party was the Commonwealth, even before determination of that fact. The Appeal Panel rejected that argument, and went on to consider whether it was satisfied that Australia Post was, relevantly, "the Commonwealth" by construing the Australian Postal Corporation Act 1989 (Cth) (APC Act).
As the Appeal Panel said in Lux Cuttings at [17], there is no doubt that where a party to proceedings involving the exercise of judicial power in NCAT raises a defence that relies on a Commonwealth law or on the Constitution to give rise to a matter as described in s 76(i) or s 76(ii), NCAT is deprived of jurisdiction. The only condition is that the defence is "genuinely raised and not incapable on its face of legal argument": Citta at [35]. Section 76 relevantly provides that: 76 Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament …
The appellant makes the same submission in this appeal as it made in the Lux Cuttings appeal - that is, because it is "genuinely arguable" and "not manifestly hopeless" that Australia Post is the Commonwealth for s 75(iii) purposes, that is sufficient to deprive NCAT of jurisdiction. It says the fact that the parties have joined issue on whether Australia Post is properly characterised as the Commonwealth within the meaning of s 75(iii) means that there is a dispute between the parties about the interpretation of s 75(iii). Consistent with Citta, if the argument (that Australia Post is "the Commonwealth") is genuinely arguable or not manifestly hopeless, that is sufficient for the "matter" to "arise under" the Constitution within the meaning of s 76(i) such that NCAT is deprived of jurisdiction.
The appellant further submits that the proceedings may also involve a matter arising under a law made by the Commonwealth Parliament within the meaning of s 76(ii) of the Constitution, as the determination of whether Australia Post is "the Commonwealth" requires NCAT to construe the APC Act. Given that the determination of whether Australia Post is "the Commonwealth" turns on the construction of the statute that establishes Australia Post, that matter may be properly characterised as "arising under" that law, rather than only involving its interpretation.
The respondent's position is that the appellant's reliance on the argument that it is "the Commonwealth" is not a defence in the type of consumer claim proceedings commenced in NCAT and, in deciding whether Australia Post is "the Commonwealth", NCAT does not exercise federal jurisdiction even though that involves interpreting a Commonwealth statute. There is a distinction between merely interpreting a federal law (such as the APC Act), which is insufficient to attract federal jurisdiction, and a matter arising under a federal law. There is no universal test for discerning this difference but the respondent placed reliance on the High Court's decision in Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 where Walsh J stated at 408-409: "… The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament."
Further, the respondent cites Gibbs J at 416: "... I regard it as now settled that a matter cannot be said to arise under a law made by the Parliament within s 76(ii) simply because to decide the matter it is necessary to consider or construe the law. … it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law."
The respondent submits that no such defence arises under federal law. In this case, the "instant controversy" does not "depend on or surround itself with federal law but rather [the ACL]". Given the ACL has been incorporated into State law through s 28(1) of the Fair Trading Act, the claim arises under the ACL (NSW). Whilst the respondent accepts that Australia Post has statutory immunity from certain actions, none apply to the present claim. For example, under s 34 of the APC Act, Australia Post is immune from actions relating to its letter service.
In these proceedings, we accept that it is genuinely arguable (or not manifestly hopeless) that Australia Post is "the Commonwealth" for the purpose of s 75(iii) of the Constitution (and we do not understand this to be in dispute between the parties to this appeal). However, this does not, of itself, deprive NCAT of jurisdiction. Instead, this simply puts forward a question for factual determination which falls anterior to the justiciable matter, rather than encompassing the heart of "the justiciable controversy" and constituting a "matter" arising under s 75 of the Constitution.
In Citta, the question of jurisdiction arose over a justiciable matter, namely that the defence to a discrimination complaint asserted that relevant provisions in the State Act (Anti-Discrimination Act 1988 (Tas)) were inconsistent with Commonwealth Acts (including the Disability Discrimination Act 1992 (Cth)). The High Court stated at [31]: "A 'matter' referred to in s 75 or 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated." (Emphasis added.)
Here, no defence based on federal law is raised in the consumer claim proceedings. Australia Post has no defence based on any statutory immunity from consumer claims regarding parcels alleged to be lost. We agree with the statements of the Appeal Panel in Lux Cuttings: "[36] We accept that Australia Post has genuinely raised an arguable proposition that the correct construction of the APC Act, which governs it, leads to the conclusion that it is 'the Commonwealth'. However, we agree with the respondent that this is not Australia Post's defence in the proceedings at first instance. Unlike the situation that confronted the Tribunal at first instance in Citta, Australia Post raising the issue of jurisdiction is not 'the answer to a claim…that [Australia Post] is free from the obligation asserted against [it] and that this freedom is conferred by an Act of the Parliament.' To test that proposition, it is enough to note that it would be no defence … to an identical claim commenced in a Chapter III court. [37] Nor does the appellant's objection to jurisdiction require us to interpret s 75(iii) of the Constitution. The parties agree that the relevant meaning of that provision is clear. …"
The raising of the issue or contention, on a genuine basis, that Australia Post is "the Commonwealth" does not deprive NCAT of jurisdiction. The raising of the issue of jurisdiction does not constitute a "matter" within federal jurisdiction; it is not a defence in the sense discussed by the High Court in Citta.
In Bir v Secretary, Ministry of Health [2024] NSWCATAD 178 (Bir), the Administrative and Equal Opportunity Division of NCAT recently dealt with a similar threshold question. There, the contention was put that federal jurisdiction under s 75(iv) of the Constitution was invoked in Tribunal anti-discrimination proceedings, with the result that NCAT had no jurisdiction. The Tribunal stated: "[19] The Respondent contended that these proceedings constituted a matter between a State and a resident of another State. The Applicant disputed that the Respondent is 'a State', and that the Applicant is 'a resident of another State'. Although it is genuinely arguable that the Applicant is 'a resident of another state', and that these proceedings thereby could constitute 'a matter between a State and a resident of another State', merely raising this issue as being 'genuinely arguable' or 'not manifestly hopeless' does not deprive this Tribunal of jurisdiction. This is because, consistent with Citta and Lux Cuttings, the justiciable controversy between the parties in these proceedings is whether or not the Respondent has contravened the Act, not the identification of the parties. The identification of the parties is a question for factual determination, anterior to the justiciable matter."
We agree with the approach taken by the Appeal Panel in Lux Cuttings and by NCAT at first instance in Bir (albeit the latter case arises in the context of s 75(iv)). The raising of the contention, on a genuine basis, that Australia Post is "the Commonwealth" is not the justiciable controversy, and is not the "matter"; it is a question for factual determination anterior to the "matter". NCAT must decide the jurisdictional fact, that is, whether Australia Post is "the Commonwealth" for s 75(iii) purposes, and therefore whether federal jurisdiction is invoked in a "matter".

[8]

Some general principles

It is not in doubt that governmental functions of the Commonwealth may be carried out through bodies corporate established by Commonwealth statute, and can be "the Commonwealth" within the meaning of s 75(iii) (Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219; [1992] HCA 6 at 230-231). However, the test for whether a body is "the Commonwealth" is not whether the body is "principally and nearly exclusively an arm of the Commonwealth exercising essential functions through a corporation", or is exercising "a core and exclusive Government function" as suggested by the respondent. As Kitto J (Barwick CJ and Windeyer J agreeing) explained in Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; [1969] HCA 44 (Inglis) (at 337-338): "The decisive question is not whether the activities and functions … are traditionally governmental in character … The question is rather what intention appears from the provisions relating to the respondent in the relevant statute: is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth". (Emphasis added.)
The High Court has held that "the Commonwealth" within the meaning of s 75(iii) should be construed broadly (Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 (Maguire) at 406; Inglis at 336). A statutory corporation may be "the Commonwealth" for this purpose, despite not meeting the description of "the Crown in right of the Commonwealth". The latter category is a subset of the former. It is at least clear that "the Commonwealth" includes agencies and instrumentalities of the Commonwealth, but it is not the case that the statutory corporation in question must have all of the privileges and immunities of the Crown or enjoy immunity from the application of State and territory laws.
The parties to this appeal have each made detailed submissions as to the indicia or factors that are relevant, if not necessarily determinative, in ascertaining whether Australia Post is "the Commonwealth". The appellant says we should have regard to five key indicia set out by McHugh J in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 (Edensor). In that case, the High Court found that the Australian Securities and Industry Commissions (ASIC) was the Commonwealth for s 75(iii) purposes. At [127], McHugh J said: "Where the Commonwealth has incorporated a body with no corporators which: carries out public functions and exercises public powers; is controlled by persons appointed by a Minister of the Commonwealth government; is under the ultimate direction and control of a Minister of the Commonwealth government; is funded by the Commonwealth and can be required to pay its revenues, profits or surpluses to the Commonwealth; and is audited by the federal Auditor-General or is required to report to the Parliament of the Commonwealth, it will be 'the Commonwealth' for the purposes of Ch III of the Constitution … unless there is some extraordinary provision or provisions in its constating statute that indicates that it is independent of the Commonwealth."
Mr Williams cites an article by D Barnett, "The Commonwealth: A multitude of manifestations - Federal jurisdiction under s 75(iii) of the Constitution" (2007) 81 ALJ 195 at 201-202 which provides the following non-exhaustive list of factors which, when met, have resulted in bodies being held by courts to be "the Commonwealth": "In determining whether a statutory body will answer the description of "the Commonwealth" for the purposes of s 75(iii), the following considerations or factors have been held to be relevant: • the degree of control able to be exerted over the body by the Commonwealth Executive; • whether the Commonwealth Executive has the power the [sic] appoint directors to the board; • the presence or absence of shareholders or corporators; • whether the income of the corporation is paid into the consolidated revenue and the consolidated revenue is appropriated to meet expenses and liabilities of the body; • whether the body is subject to scrutiny by the Auditor-General; and • whether the body's functions and objectives have a public character, such as, for example, administration of a statute or a role as a regulator." (footnotes omitted)
We agree with the parties that all the various indicia mentioned above are potentially relevant. The absence of one or more of these considerations is not fatal to a claim that the particular statutory corporation is "the Commonwealth" for s 75(iii) purposes. In SGH Limited v Commissioner of Taxation (2002) 210 CLR 51; [2002] HCA 18 (a case which concerned whether a particular body was "the State" for the purposes of s 114 of the Constitution), the High Court stated that the proper characterisation of a particular body "requires consideration of every feature of the entity which bears upon its relationship with the polity" (at [22]). Similarly here, it is a question of weighing up all of the relevant indicia in the Commonwealth laws constituting or governing the statutory body in question, and the relationship between that body and the Commonwealth.

[9]

Australia Post - key legislative provisions

Australia Post continues to be a body corporate, has a seal and may sue and be sued in its corporate name (APC Act, s 13). Australia Post's principal function is to supply postal services within Australia and between Australia and places outside Australia (s 14). Under s 16 of the APC Act, the functions of Australia Post include the carrying on, within or outside Australia, of any business or activity that is incidental to the supplying of postal services under s 14 or the carrying on of any business or activity relating to postal services under s 15. Section 18 of the APC Act confers specific postal (and postal related) powers, for or in connection with the performance of its functions, including power "(a) to supply packet and parcel carrying services" and "(c) to supply courier services".
Australia Post has obligations set out in s 25 of the APC Act being its "commercial obligation" under s 26, its "community service obligations" under s 27 and its "general government obligations" under s 28. There is an obligation to provide a letter service, which is exclusive to Australia Post (ss 27, s 29(1)).
There is no general legislative immunity for Australia Post. Section 90A of the APC Act provides that Australia Post is not entitled to the immunities or privileges of the Commonwealth except so far as express statutory provision is made. An example is found in s 34(1) of the APC Act which provides that no action or proceedings lie against Australia Post or any other person in relation to loss suffered due to any act or omission by or on behalf of Australia Post in relation to the carriage of letters or other articles by means of "the letter service".
Division 2 of Pt 2 of the APC Act governs Australia Post's Board and managing director. It is the role of the Board: (a) to decide the objectives, strategies and polices to be followed by Australia Post; and (b) to ensure that Australia Post performs its functions in a manner that is proper, efficient and, as far as practicable, consistent with sound commercial practice: APC Act, s 23. The directors are appointed, for a term of up to 5 years, by the Governor-General on the nomination of the Minister (ss 73, 74). The Minister must consult with the Chairperson before nominating a person for Board appointment, and must have regard to certain matters when deciding who to nominate. The Governor-General may terminate a director's appointment for misbehaviour, physical or mental incapacity (s 79(1)). The Board appoints the managing director who holds office during the Board's pleasure (ss 83(1), 84). The managing director manages Australia Post "under the Board" (s 24(1)).
Section 49(1) of the APC Act confers power on the responsible Minister to give written directions to the Board, after consultation with the Board, in relation to the performance of Australia Post's functions "as appear to the Minister to be necessary in the public interest". The direction-making power does not extend to directions in relation to postage rates; and amounts charged for work done, or services, goods or information supplied by Australia Post (s 49(2)). Further, the Minister may give written directions to the Board to vary corporate plans and financial targets (s 40(1)).
Australia Post is to meet prescribed performance standards (s 28C) and to implement service improvement plans in response to non-compliance with prescribed performance standards identified by the Auditor-General in a report (s 28E).
Part 5 of the APC Act ("Finance") provides for Australia Post's capital (ss 51, 52), payment of dividends to the Commonwealth (ss 54, 55), and other provisions relating to the financial relationship between Australia Post and the Commonwealth. The Finance Minister may lend money to Australia Post, on behalf of the Commonwealth, out of money appropriated by Parliament (s 60). Australia Post is subject to taxation under Commonwealth, State and Territory laws (s 63(1)). There is oversight by the Auditor-General, who has statutory responsibilities to report on Australia Post's compliance with performance standards prescribed by regulation, and to conduct performance audits (ss 28D, 28E).
A number of accountability mechanisms are included in the APC Act (and other Commonwealth laws), including the requirement to prepare corporate plans (Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act), s 35) and annual reports (APC Act, s 44). The Board must consider specified matters when setting financial targets (contained in a corporate plan), including "the need to earn a reasonable rate of return" on Australia Post's assets (APC Act, s 38(a)), the need to maintain "the extent of the Commonwealth's equity" (s 38(b)), the need to maintain "a reasonable level of reserves" and Australia Post's "financial viability" (s 38(e), (d)), and "the expectation of the Commonwealth" that the body will pay a reasonable dividend (s 38(c)).
Australia Post is a "corporate Commonwealth entity" subject to the PGPA Act, (ss 10(1)(d), 11(a); Public Governance, Performance and Accountability Rule 2014 (Cth) (PGPA Rules), r 5). There are various governance, performance and reporting requirements imposed in relation to "corporate Commonwealth entities" in the PGPA legislative scheme, too numerous to mention in these reasons for decision. "Corporate Commonwealth entities" such as Australia Post must comply with any "government policy order" issued by the Finance Minister (after consultation with the relevant entity): PGPA Act, s 22. There are duties to keep the responsible Minister (and Finance Minister in certain instances) informed about the entity's activities, and other requirements to provide documents or information to one or both of those Ministers: PGPA Act, s 19. The PGPA Act imposes numerous other duties, a number of which relate to the use and management of "public resources". For example, such an entity is to be governed in a way that "promotes the proper use and management of public resources" (s 15(1)(a)).

[11]

The submissions of the parties

In support of the proposition that Australia Post is "the Commonwealth", the appellant relies on the five indicia set out by McHugh J in Edensor at [127], and submits: 1. Australia Post is a body corporate established by ss 12 and 13 of the APC Act, with no corporators or shareholders. 2. Australia Post's activities have a governmental or public character. It operates a statutory monopoly (APC Act, s 29(1) outlines its exclusive right to carry letters within Australia). Whilst being required to perform its functions in a commercially sound manner (s 26), this obligation only extends "as far as practicable" in compliance with its community service and government obligations (ss 27 and 28). The functions of Australia Post have historically been performed by a Department of State and the governmental importance of the postal service is elucidated by s 51(v) of the Constitution which confers power on Parliament to make laws with respect to postal services. Australia Post is the body primarily responsible for discharging obligations, performing functions and exercising powers under the APC Act. 3. Australia Post is subject to considerable control and supervision by the Executive and Parliament. Australia Post is bound by government policy orders that apply under s 22 of the PGPA Act, Ministerial directions made under s 49 of the APC Act (copies of which are to be laid before Parliament: s 49(3)), and Australia's obligations under any convention (s 28). In addition, the Auditor-General audits and reports on Australia Post's compliance with regulatory standards, and this report is put before Parliament (s 28D). Australia Post's annual report is also presented to Parliament (PGPA Act, s 46). In its corporate plan, Australia Post must have regard to "the need to maintain the extent of the Commonwealth's equity in Australia Post" (APC Act, s 38(b)). Whilst there exist some exceptions to the Minister's direction-making power under s 49(2) of the APC Act, these are extremely confined. While the Minister must consult the Board before making directions, this "fetter" is not a significant constraint on the Minister's power (as suggested by the respondent). The Minister could make a direction even if it were opposed by the Board. 4. The Commonwealth exercises significant control over Australia Post's finances. Australia Post's initial capital was determined by the Minister (APC Act, s 51(1)), and the sum of Australia Post's capital, as well as the power for the Minister to direct that capital be repaid to the Commonwealth, is described in s 52 of the APC Act. Australia Post's capital includes "any amounts paid to Australia Post after the commencement of [the APC Act] out of money appropriated by the Parliament for the purpose of providing capital" (s 52(1)(c)). In addition, the Finance Minister may "out of money appropriated by the Parliament for the purpose, lend money to Australia Post" (s 60). The Board can recommend that a dividend is paid to the Commonwealth (s 54(1)), and the Minister can also direct the payment of a dividend (s 54(3)). Such dividends would be paid into the Consolidated Revenue Fund. Additionally, where a person infringes on the rights of Australia Post, the Federal Court can order the person pay a pecuniary penalty "to the Commonwealth" (s 30A(2)). 5. The Commonwealth Executive exercises control over the directorship of Australia Post (APC Act, ss 73(1) and 79). The Governor-General appoints directors on the nomination of the Minister (s 73(1)). The fact the Minister must consult with the Chair of the Board before nomination, or must have regard to the matters in s 73(3), does not diminish the control of the Executive over the appointment process. Additionally, it is the Board, which is appointed by the Governor-General on nomination from the Minister, that is able to dismiss the managing director. The Governor-General acts on the advice of the responsible Minister. 6. The Auditor-General has a duty to audit and report on Australia Post's compliance with prescribed performance standards (see Australian Postal Corporation (Performance Standards) Regulation 2019 (Cth)). This involves a substantive review of Australia Post's operations against those standards. The Auditor-General is to conduct a "performance audit" on request by the Parliamentary Joint Committee of Public Accounts and Audit (Auditor-General Act 1997 (Cth), s 17(2)).
Australia Post says that these factors, taken together, show a clear legislative intention that Australia Post is "the Commonwealth" for the purposes of s 75(iii). The appellant acknowledges that there are two provisions in the APC Act which may suggest Australia Post is not "the Commonwealth" within the meaning of s 75(iii). Firstly, s 90A of the APC Act, which states that Australia Post is not entitled to any Commonwealth immunity or privilege except where expressly provided in the APC Act or any other law of the Commonwealth, or a State or Territory. Second, Australia Post is subject to taxation under the laws of the Commonwealth and the States and Territories (s 63(1)). However, it is the appellant's submission that these indicia do not outweigh those indicia in favour of the characterisation of Australia Post as "the Commonwealth".
In his submissions, Mr Williams contends that there are a number of factors which mean that Australia Post is not "the Commonwealth": 1. The Executive is not able to exert a large degree of control over Australia Post. The Minister does not appoint the Board directly, and does not appoint (or dismiss) the managing director. The Ministerial direction powers in the APC Act are limited. 2. The income of Australia Post is not paid into the Consolidated Revenue Fund and the consolidated revenue is not appropriated to meet expenses and liabilities as Australia Post's operations are self-funded and fiscally separate from the Commonwealth. 3. Australia Post's functions and objectives do not have a public character, such as occupying the role of a regulator or administering a statute (citing State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639; [1986] HCA 62 at 651; Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282; [1982] HCA 48 at 288-9). Additionally, Australia Post's directors, officers and employees are not "officers of the Commonwealth" which is a phrase used across varying statutes. The respondent submits this is made clear when looking at the legislative history of the Crimes Act 1914 (Cth) which previously included Australia Post employees as 'Commonwealth officers' within the definition section of that Act. However, these sections were later repealed. 4. Australia Post is not subject to scrutiny from the Commonwealth Auditor-General unless relating to prescribed performance standards or performance audits. 5. The designation of an entity as a 'Government Business Enterprise' (or GBE) under r 5 of the PGPA Rules weighs heavily against a finding that that entity is "the Commonwealth". The implications of such designation are far greater than reporting obligations. For example, the Auditor-General can only conduct performance audits of GBEs or their subsidiaries at the request of a Joint Committee, and additionally, Australia Post is exempt from obligations arising under the Freedom of Information Act 1982 (Cth) (FOI Act) in relation to its commercial activities. 6. Bodies that are "the Commonwealth" are usually those that have the rights and immunities typically associated with the Commonwealth, and hold no or limited tax liabilities, unlike Australia Post. Parliament's actions over time clearly evince an intention to maintain separation between Australia Post and the Commonwealth. For example, the Australian Postal Corporation Amendment Act 1994 (Cth) inserted s 90A into the APC Act meaning Australia Post would no longer be entitled to the immunities or privileges of the Commonwealth. 7. Only Australia Post's letter delivery service could be regarded as a core governmental function. While a legislative immunity exists in relation to Australia Post's letter service under s 34(1) of the APC Act, Australia Post's ancillary parcel delivery business does not enjoy the same immunities as those arising from its letter service. Australia Post could be "the Commonwealth" only in relation to its letter delivery service. 8. Australia Post can be distinguished from ASIC, Airservices Australia (Airservices) and the Defence Housing Authority (DHA) which have all been found to be "the Commonwealth" for s 75(iii) purposes. Parliament intended to exercise core and exclusive government functions through ASIC and Airservices, and as such, these entities are not designated as GBEs, in contrast to Australia Post. Under the Australian Securities and Investments Commission Act 1989 (Cth) (the 1989 ASIC Act) which was the legislation in place at the time of Edensor, ASIC exercised critical government regulatory functions (1989 ASIC Act, s 12A). ASIC was not subject to Commonwealth or State taxation except for a law imposing sales tax, the Debits Tax Act 1982 (Cth) (which is no longer in force) or the Fringe Benefits Tax Act 1986 (Cth) (1989 ASIC Act, s 139). In respect of Airservices, the Minister has power to give "unfettered directions" under s 16 of the Air Services Act 1995 (Cth). Airservices is immune from state and territory land use laws (Air Services Act, s 8(1A)) and is not liable to pay State and Territory tax but is liable to pay Commonwealth tax (Air Services Act, s 52(2)). 9. DHA more closely resembles Australia Post than ASIC or Airservices, and the High Court was 'essentially split' on whether DHA was the Commonwealth within the meaning of s 64 of the Judiciary Act (Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410; [1997] HCA 36). Additionally, the Commonwealth Executive has a higher degree of control over DHA than Australia Post. There is a broad Ministerial directions power under s 31 of the Defence Housing Australia Act 1987 (Cth) (DHA Act) which is not constrained in the same way as the directions power under the APC Act (and does not require any consultation with the Board: APC Act, ss 40 and 49). Additionally, at the time of Henderson, DHA was not subject to taxation of the Commonwealth or of any state or territory (DHA Act, s 63(1)).

[12]

Consideration

In considering whether Australia Post is "the Commonwealth" for s 75(iii) purposes, we agree with the Appeal Panel in Lux Cuttings at [58] that it is necessary to have regard to the functions of Australia Post as a whole. It is the case that Australia Post conducts business activities that are broader than its letter delivery services (in respect of which it has a statutory monopoly). We agree with the appellant's submission made in this appeal that it is necessary to have regard to the functions of Australia Post as a whole and that it cannot be said to be the Commonwealth for some of its business activities, but not for others. It follows that Australia Post cannot be "the Commonwealth" for s 75(iii) purposes solely in relation to its letter delivery services.
A body is either "the Commonwealth" under s 75(iii) or it is not. The observation of Rich and Williams JJ in Bank of New South Wales v The Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1; [1948] HCA 7 that a "corporation may be an agent of the Crown for some purposes and an independent entity for other purposes" (at 274) (relied on by the respondent) is not to the contrary. Whether a person acts as "agent of the Crown" is a different question from whether that person is "the Commonwealth".
After considering the combined effect of the provisions in the APC Act (and the PGPA Act), regulations and rules, in our view, Australia Post can properly be characterised as "the Commonwealth" for s 75(iii) purposes. We think that it meets the criteria put forward by McHugh J in Edensor, and a number of the criteria identified by the appellant as relevant.
Australia Post performs governmental functions whilst also carrying on incidental business activities. An entity can be "the Commonwealth" for s 75(iii) purposes where its functions involve the provision of services to the public (and to businesses), and notwithstanding that it does not exercise regulatory functions. While Australia Post has a mandate to perform its functions consistently with commercial practice, this is only "as far as practicable" (s 26). Additionally, government policies can be applied to its operations, under both the APC and PGPA Acts.
There is a substantial degree of control (direct and indirect) exercised by the Commonwealth (through the Executive and Parliament) over Australia Post. Australia Post's operations are carried out under the direction of its Board. It is not correct to suggest that the Commonwealth Executive does not control Board appointments. The Board members are appointed by the Governor-General only on the nomination of the Minister; the Governor-General acts on advice of the Minister. Further, except in limited circumstances, the responsible Minister can give written directions to the Board in the public interest, and can direct the variation of Australia Post's corporate plans.
There are controls on, and supervision of, Australia Post's finances by the Commonwealth (both the Executive and Parliament). As noted, dividends are payable at the discretion of the Board and the Minister may direct the payment of dividends even where the Board opposes such payment. The dividends paid would form part of the Consolidated Revenue Fund upon receipt. Australia Post can receive further capital, and loans, out of money appropriated by Parliament, as determined by the responsible Minister or Finance Minister (as relevant). Australia Post's financial targets are set according to notions of rates of return on public resources. There is parliamentary oversight through various mechanisms, including by the Parliamentary Joint Committee of Public Accounts and Audit. The Commonwealth Auditor-General has oversight functions that cannot be described as minimal.
We reject the respondent's contention that there exists a legislative intention in the PGPA Act (or in other laws) to separate Australia Post (as a "Commonwealth corporate entity") from the Commonwealth for the purposes of constitutional characterisation. The respondent points to the Note to s 11 of the PGPA Act which states that: "[c]orporate Commonwealth entities are legally separate from the Commonwealth, whereas non-corporate Commonwealth entities are part of the Commonwealth". This Note confirms the status of Australia Post as a separate legal entity, which is consistent with ss 12 and 13 of the APC Act which provide that Australia Post "continues to be a body corporate" and "may sue and be sued in its corporate name". We agree with the comments of the Appeal Panel in Lux Cuttings that s 11 of the PGPA Act does not preclude Australia Post from being considered to be "the Commonwealth" for the purposes of s 75(iii): see [45]-[46].
We do not accept the argument that Australia Post's status as a GBE under the PGPA legislative regime means the body is far too removed from the Commonwealth to fall within s 75(iii). The PGPA Act contains a number of statutory provisions which establish controls by the Commonwealth Executive (through the responsible Minister and Finance Minister) and the Parliament, including through governance, performance and reporting requirements.
We referred earlier to the Auditor-General's role in relation to reporting on the body's compliance with prescribed performance standards, and the Auditor-General's role in conducting performance audits on request by the Joint Committee of Public Accounts and Audit. While there is not the same level of operational oversight by the Auditor-General as there is with, say, a Commonwealth Department, nonetheless we do not consider that the scrutiny to which Australia Post may be subjected by the Auditor-General can be described as "extremely limited operational scrutiny" as contended by the respondent.
Further, the fact that Australia Post is exempt from obligations arising under the FOI Act in respect of documents relating to its commercial activities does not answer the question of whether Australia Post is "the Commonwealth". As pointed out by the appellant, Div 1 of Pt II of the FOI Act also exempts (for example) the Commonwealth Attorney-General's Department from the FOI Act in relation to "documents in respect of commercial activities it undertakes". There is no doubt that the Attorney-General's Department, as a Department of State established under s 64 of the Constitution, is "the Commonwealth".
We accept that Australia Post enjoys only limited privileges and immunities of the Commonwealth and does not enjoy immunity from taxation. However, the fact that Australia Post does not enjoy those immunities is not sufficient to conclude that Australia Post is not "the Commonwealth". It is accepted that legislative immunities enjoyed by other bodies such as Airservices mean that those bodies are distinguishable in that respect.
It is accepted that, at the time of Henderson, DHA was not subject to state or territory taxation (DHA Act, s 63(1)). Additionally, both Airservices and ASIC were found to be "the Commonwealth" for the purposes of s 75(iii) despite neither entity enjoying full immunity from taxation. Airservices' immunity from taxation only extended to State and Territory taxes, and ASIC was still subject to laws imposing sales tax, the Debits Tax Act or the Fringe Benefits Tax Act. Whilst it is true that Parliament did not intend Australia Post enjoy all of the constitutional immunities the Commonwealth itself enjoys, or exemption from Commonwealth or State taxation, Australia Post can still be considered "the Commonwealth" for the purposes of s 75(iii). In our view, ss 63 and 90A of the APC Act do not outweigh other indicia in favour of the characterisation of Australia Post as "the Commonwealth".
To the extent that the respondent points to differing degrees of Executive control over DHA and Australia Post in their respective governing statutes, the appellant submits there is little difference between DHA and Australia Post. Both s 31 in the DHA Act, as in force at the time of Henderson, and s 49 of the APC Act confer broad direction-making powers on the relevant Minister. The exceptions in s 49(2) of the APC Act are narrow and the obligation to "consult" the Board is a limited "fetter" on the Minister's power to give directions. We agree with the appellant's submission that the question is not whether Australia Post operates more independently than DHA, but rather the extent to which the Commonwealth can exercise control over the body. We have earlier addressed the ways in which the Commonwealth can exercise control over Australia Post's activities.
In addition, the question whether Australia Post's directors, officers, and employees are "officers of the Commonwealth" within the meaning of s 75(v) of the Constitution does not fall to be decided. No relief is sought against any director, officer or employee of Australia Post. Whether or not such persons are "officers of the Commonwealth" in the constitutional sense does not answer the question of whether the relevant body itself is "the Commonwealth".

[13]

The Tribunal at first instance erred in its approach

We consider that the Tribunal below fell into error by asking itself the wrong question, or applying the wrong test, in the approach it took towards the characterisation task, and that the Tribunal was wrong in failing to characterise Australia Post as "the Commonwealth" within the meaning of s 75(iii).
The Tribunal below had express regard to the indicia set out in J S McMillan Pty Ltd v Commonwealth of Australia (1977) 77 FCR 337; [1997] FCA 619 (J S McMillan) and Murphy v State of Victoria & Anor [2014] VSCA 238 (Murphy) in determining the characteristics of the service provided by Australia Post (in relation to the supply of parcel or courier services the subject of the consumer claim before it): First Instance Decision at [51]. However, we agree with the appellant that the Tribunal below asked itself the wrong question, or applied the wrong test, when it relied on J S McMillan and Murphy. The Appeal Panel in Lux Cuttings summarised the point succinctly, when it said that it is not whether a statute, such as the ACL, can bind a Commonwealth instrumentality, but whether that instrumentality is the Commonwealth within the meaning of s 75(iii) of the Constitution (at [57]).
In McMillan, the question was whether the Commonwealth, by way of the Government Publishing Service, breached its obligations under s 52 of the then Trade Practices Act 1974 (Cth) (TPA). That in turn involved the question of whether the Commonwealth (directly or through an authority (as defined)) was "carrying on a business" within the meaning of s 2A of the TPA. In Murphy, the Victorian Court of Appeal considered whether relevant conduct of a statutory corporation established under Victorian law was conduct engaged in as part of the carrying on of a business, in determining whether the Australian Consumer Law (Vic) applied to that conduct. Under s 16 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the ACL (Vic) binds the 'Crown in right' of Victoria, "so far as the Crown carries on a business, either directly or by an authority". The analysis in McMillan (and others cases cited by the Tribunal below) involved consideration of what activities were government or regulatory in nature, and by contrast, what activities could instead be characterised as the carrying on of a business in the required sense.
In relying on the decisions in J S McMillan and Murphy, the Tribunal below found that: 1. the courier services performed by Australia Post constituted "the carrying on of a business" which should be distinguished from a purely governmental function; 2. Australia Post cannot be considered "the Commonwealth" in relation to its courier service (in contrast to its letter service which is a statutory function exclusive to Australia Post); 3. the conduct complained of by the respondent occurred as part of carrying on a business by Australia Post; and 4. as a matter of construction of the APC Act, the Commonwealth Parliament intended the consumer guarantees in the ACL to apply to Australia Post's courier business (First Instance Decision at [69] (1), (iii), (iv)).
We agree with the appellant that the Tribunal below wrongly considered whether the consumer guarantees in the ACL applied to Australia Post. The relevant question to ask is whether Australia Post is "the Commonwealth", not whether Australia Post is (or is not) exempt from specific legislative schemes in respect of some or all of its activities. To the extent that the Tribunal below relied on McMillan and other cases about the application of competition or consumer law to government (whether Commonwealth or State), that reliance was misplaced. Those cases are not a guide (nor do they purport to be) to determining whether a body is "the Commonwealth" for s 75(iii) purposes (or, for that matter, "the State" for constitutional purposes). While McMillan and similar cases relied on by the Tribunal below are relevant in determining the characteristics of the services provided by Australia Post for the purposes of competition law, those cases do not assist in determining the characteristics of Australia Post itself which must be assessed having regard to the functions of Australia Post as a whole.
Contrary to the appellant's submission, we do not think that the Tribunal below was necessarily "wrong" to make a finding that Australia Post and its Board have a "substantial degree of independence from the Australian Government" (First Instance Decision at 69). However, that, of itself, does not answer the question whether Australia Post is "the Commonwealth" for s 75(iii) purposes. The Member placed considerable weight on s 90A of the APC Act which provides that Australia Post is not entitled to any immunity or privilege of the Commonwealth except where statutory provision is made. We indicated earlier that, in our view, s 90A is not determinative of Australia Post's characterisation and is outweighed by other indicia.
In any event, as stated, we consider that the Tribunal erred in its reliance on case law such as McMillan and that it applied the wrong test (or asked itself the wrong question) in characterising Australia Post as not "the Commonwealth". It did this by separating government or regulatory functions of Australia Post from the "business" activity of the body which provides ancillary parcel or courier services, rather than considering Australia Post's functions as a whole and its relationship with the Commonwealth polity.

Parties

Applicant/Plaintiff:

Australian Postal Corporation

Respondent/Defendant:

Williams

Legislation Cited (25)

Anti-Discrimination Act 1988(Tas)

Australian Postal Corporation Amendment Act 1994(Cth)

Australian Postal Corporation (Performance Standards) Regulation 2019(Cth)

Constitution Debits Tax Act 1982(Cth)

Trade Practices Act 1974(Cth)

(Anti-Discrimination Act 1988(Tas)

(Public Governance, Performance and Accountability Act 2013(Cth)

Parliamentary Joint Committee of Public Accounts and Audit (Auditor-General Act 1997(Cth)

Under the Australian Securities and Investments Commission Act 1989(Cth)

Air Services Act 1995(Cth)

Auditor-General Act 1997(Cth)

Australian Consumer Law and Fair Trading Act 2012(Vic)

Australian Postal Corporation Act 1989(Cth)

Australian Securities and Investments Commission Act 1989(Cth)

Civil and Administrative Tribunal Act 2013(NSW)

Defence Housing Australia Act 1987(Cth)

Disability Discrimination Act 1992(Cth)

Fair Trading Act 1987(NSW)

Freedom of Information Act 1982(Cth)

Fringe Benefits Tax Act 1986(Cth)

Judiciary Act 1903(Cth)

Public Governance, Performance and Accountability Act 2013(Cth)

Public Governance, Performance and Accountability Rule 2014(Cth)

Crimes Act 1914(Cth)

Debits Tax Act 1982(Cth)

Cases Cited (41)

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219; [1992] HCA 6 Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; [1969] HCA 44 J S McMillan Pty Ltd v Commonwealth of Australia (1977) 77 FCR 337; [1997] FCA 619 Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 Murphy v State of Victoria & Anor [2014] VSCA 238 Mustac v Medical Board of Western Australia [2007] WASCA 128 Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410; [1997] HCA 36 SGH Limited v Commissioner of Taxation (2002) 210 CLR 51; [2002] HCA 18 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639; [1986] HCA 62 The Owners - Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48 Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282; [1982] HCA 48 Williams v Australian Postal Corporation t/as Australia Post [2023] NSWCATCD 79 Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 Texts Cited: D Barnett, "The Commonwealth: A multitude of manifestations - Federal jurisdiction under s 75(iii) of the Constitution" (2007) 81 ALJ 195 Category: Principal judgment Parties: Australian Postal Corporation (Appellant) Michael Williams (Respondent) Representation: Counsel: J Wherrett (Appellant)

Solicitors: Appellant (Self-represented) Respondent (Self-represented) File Number(s): 2023/00255767 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2023] NSWCATCD 79 Date of Decision: 14 July 2023 Before: G A Kinsey, General Member File Number(s): GEN 23/05351

Cited By (2)

Commissioner of Police, NSW Police Force v FYH

FVA v Commissioner of Police, NSW Police Force