Australian Postal Corporation v Williams

Background

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Relevant provisions in Commonwealth Constitution and federal jurisdiction

1. Section 71 of the Constitution vests the "judicial power of the Commonwealth" in the High Court, and "such other courts as it invests with federal jurisdiction". The scope of the "judicial power of the Commonwealth" (federal jurisdiction) is defined by the "matters" set out in ss 75 and s 76 of the Constitution. The "matter" the subject of these proceedings is identified in s 75(iii), which provides that in all matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party… the High Court shall have original jurisdiction".
2. With respect to the matter in s 75(iii), s 77(iii) confers power on the Commonwealth Parliament to make laws "investing any court of a State with federal jurisdiction". Section 39(1) and (2) of the Judiciary Act 1903 (Cth) confers a general federal jurisdiction on State courts to determine matters within ss 75 and 76 of the Constitution. The combined effect of these provisions is that the exercise by a State court of adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution, is an exercise of federal jurisdiction. That is the case regardless of whether the law to be applied is Commonwealth or State law: Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [55] (Bell, Gageler, Keane, Nettle and Gordon JJ).
3. As NCAT is not a "court of a State" within the meaning of that term in s 77(iii) of the Constitution, it does not have authority to decide matters within federal jurisdiction: Burns v Corbett at [39].
4. It is not in dispute that NCAT exercises State judicial power when determining a consumer claim application under the Fair Trading Act and ACL. Federal jurisdiction (which NCAT cannot exercise) is invoked if the respondent to the consumer claim brought before NCAT, Australia Post, is "the Commonwealth or a person suing or being sued on behalf of the Commonwealth".

Respective positions of the parties

1. 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.
2. 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.
3. 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".
4. 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.
5. 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.

Issues for determination in this appeal

1. 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.
2. 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).
3. 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.
4. 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.

Consistency in NCAT Appeal Panel decisions

1. 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.
2. 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."
3. 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.
4. 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).

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

1. 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.
2. 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).
3. 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 …
4. 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.
5. 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.

Issue (2): Is Australia Post the Commonwealth for the purposes of s 75(iii)?

1. After construing the APC Act, the Appeal Panel in Lux Cuttings found that Australia Post is "the Commonwealth" for the purposes of s 75(iii) and that NCAT is deprived of jurisdiction to determine a consumer claim brought under the Fair Trading Act against Australia Post because federal jurisdiction is invoked. In its decision, the Appeal Panel comprehensively set out its reasoning by reference to the submissions of the parties. The same or similar submissions are made by the parties in this appeal.
2. We agree with the Appeal Panel in Lux Cuttings that Australia Post is "the Commonwealth" for s 75(iii) purposes and that federal jurisdiction is invoked such that NCAT is deprived of jurisdiction to hear and determine the consumer claim in question. We agree with that Appeal Panel's conclusion on this point and with its reasoning. While we do not need to repeat all of the points made in that previous decision, for ease of reading, we will nonetheless refer to some of the same material. We will also address the key submissions of the parties made in this appeal.

Some general principles

1. 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.)
2. 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.
3. 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."

Australia Post - key legislative provisions

1. 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".
2. 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)).
3. 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".
4. 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)).

Indicia for and against Australia Post as "the Commonwealth"

1. In considering whether the concept of Commonwealth activity can realistically be applied to that which a statutory body does, the High Court has indicated that the issue should be construed broadly, to consider whether "the Commonwealth in substance, though not necessarily in form, is suing or being sued": Maguire per Jacobs J at 406; Lux Cuttings at [41].

The submissions of the parties

1. 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)).

Consideration

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.

The Tribunal at first instance erred in its approach

1. 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).
2. 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]).
3. 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.
4. 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)).

Costs of the appeal

1. Leave was given to the appellant to be legally represented, noting that the appellant will not be seeking costs. On that basis no order will be made for costs.

Orders

1. We make the following orders: 1. The appeal is allowed. 2. The proceedings GEN 23/05351 at first instance are dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 29 August 2024 - Date amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2024