Bayside City Council v Telstra Corp Ltd [2004] HCA 19; 216 CLR 595; 206 ALR 1; 78 ALJR 704

Bayside City Council v Telstra Corp Ltd [2004] HCA 19; 216 CLR 595; 206 ALR 1; 78 ALJR 704 - HCA 2004 case summary — Zoe

[22]

In his reasons, Wilcox J said that part of the background to this litigation involved "community concern at the extent of the broadband cabling that was aerially erected in many parts of Australia during the mid-1990s"[4], and the response of local government authorities. In about 1995, Telstra and Optus commenced installing and laying broadband cable networks in the Sydney and Melbourne metropolitan areas. A broadband cable network uses a wider frequency band than is necessary to transfer speech telephonically. It comprises links between exchanges, between exchanges and a customer's tap-off point, and between a customer's tap-off point and equipment at a customer's premises. It permits a flow of information for a number of purposes, including internet services and cable television.
The principal functions of the Telstra broadband network are to provide pay television, high-speed internet access, and telephony services[5]. By a chain of legislative title identified in Telstra Corporation Ltd v Worthing[6], Telstra is the successor to the Australian Telecommunications Commission which was continued as a body corporate under the name "Telecom"; this body ("Telecom") had a monopoly as a telephone carrier. Telecom's telephony system originally used extensive aerial cabling, but later this was progressively placed underground[7]. Telstra's cable network was designed to make use of existing infrastructure, including underground ducts and existing electricity poles. The coaxial cable component of the network is reticulated either underground or aerially. In the case of aerial reticulation, existing poles are used. In the case of underground reticulation, existing underground pipes and ducts/conduits are used. In metropolitan Sydney and Melbourne, approximately one quarter of Telstra's coaxial cables are reticulated aerially, and approximately three quarters are reticulated underground. Aerial cables are secured to poles, which typically also carry electricity conductors and cables. Underground cables may be reticulated along with other services such as water, gas, electricity and sewerage[8].
The Optus network comprises mainly aerial coaxial cables. Between April/May 1995 and March 1997, Optus laid cables and installed other structures on, under and over land of the appellants. As at 1 July 1997, the Optus network provided a local telephone service, some pay television, and high-speed data products. During the year ended 30 June 1998, Optus used its network to provide pay television to residential subscribers in each appellant's area.
The Full Court pointed out that, since Federation, telecommunications services have been provided either by the government (the Postmaster-General), or a statutory corporation (such as Telecom), or by a public company (such as Optus), including a company in which the Commonwealth holds a majority of shares (Telstra)[9]. It has always been necessary for the Parliament to confer powers to install and operate facilities. The present federal regulatory regime confers such powers, but extends beyond that. It is convenient to turn to the principal features of that regime.

[23]

In the exercise of its powers, including the power, conferred by s 51(v) of the Constitution, to make laws with respect to postal, telegraphic, telephonic, and other like services, the Parliament, in the Telco Act, provided a regulatory framework which was intended to promote the development of an efficient and competitive telecommunications industry, including the supply of carriage services to the public, and to ensure that such services are reasonably accessible, and are supplied efficiently and economically to meet the social and business needs of the Australian community (s 3). "Carriage service" is defined to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy (s 7). Part 2 of the Telco Act deals with network units, which include links of the kind owned by Telstra and Optus. An owner of network units wishing to supply a carriage service to the public must hold a carrier licence (s 42). Such a licence entitles the carrier to use a network unit to supply carriage services to the public. It is subject to specified conditions, including compliance with the Telco Act, and with other conditions declared by the Minister (s 63).
As s 3 of the Telco Act states, the regulatory framework is contained, not only in the Telco Act, but also in Pts XIB and XIC of the Trade Practices Act 1974 (Cth), which are to be read together with the Telco Act. Part XIB sets up what is described in s 151AA (the simplified outline) as a special regime for regulating anti-competitive conduct in the telecommunications industry. A carrier or carriage service provider must not engage in anti-competitive conduct. That "competition rule" is subject to the supervisory power of the Australian Competition and Consumer Commission ("the Commission"), which may make orders exempting specified conduct from the scope of the definition of anti-competitive conduct, direct carriers and carriage service providers to file tariff information, make record-keeping rules for carriers and carriage service providers, and direct carriers and carriage service providers to make certain reports available for inspection. The object of Pt XIC is to promote the long-term interests of end-users of carriage services or of services provided by means of carriage services (s 152AB). As explained in the simplified outline (s 152AA), the Part sets out a "telecommunications access regime". The Commission may declare carriage services and related services to be declared services. Providers of declared services are required to comply with standard access obligations, which facilitate the provision of access to declared services by service providers in order that service providers can provide carriage services and/or content services. Provision is made for the terms and conditions of such access, and for dispute resolution by the Commission where necessary.
The simplified outline of the Telco Act (s 5) refers to the obligations of carriage service providers and content service providers to comply with service provider rules. The Australian Communications Authority monitors, and reports to the Minister on the performance of, service providers. The legislation provides both for voluntary industry codes, and for mandatory industry standards. There is established what is called a universal service regime with the object of ensuring that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to standard telephone services, payphones and prescribed carriage services. Provision is made for regulating call charges and various aspects of the services provided pursuant to the legislation, and for standard agreements for the supply of carriage services.
The predecessor of the Telco Act was the Telecommunications Act 1991 (Cth). That Act made provision for the licensing of carriers, and their obligations, rights and immunities. Section 116 of the 1991 Act provided for regulations exempting activities from State and Territory laws. The regulations specified activities including the construction, maintenance and repair of facilities, being part of a carrier's telecommunications network. A carrier was permitted to engage in an exempt activity despite a law of a State or Territory about the powers and functions of a local government body or the use of land. The cables the subject of the rates and charges challenged in this litigation were installed during the period of operation of the 1991 Act, and pursuant to authorities and exemptions conferred by or under that Act[10].
Provisions dealing with the application of State laws to the conduct of service providers carrying on activities authorised by the Commonwealth pursuant to s 51(v) are familiar. In R v Brislan; Ex parte Williams[11], Latham CJ said:

[52]

The New South Wales local authorities involved in these appeals resolved to make charges, pursuant to s 611 of the New South Wales Local Government Act, for the years ending 30 June 1998 and 30 June 1999. The charges were imposed in respect of "cabling" or "cables". Wilcox J summarised the effect of the resolutions[15]: "Sometimes the resolution was limited to cabling over (or under) 'Council property'; which includes public streets and reserves. Sometimes the charge applied to both overhead and underground cabling; sometimes only the former. Sometimes the charge was higher for overhead cabling than for underground cabling; for example, several councils charged $1000 per km for overhead cabling and $500 per km for underground cabling."
For the years ending 30 June 1998 and 30 June 1999, the Victorian local authorities involved in these appeals, pursuant to the Victorian Local Government Act, declared and levied rates on the land occupied by Telstra and Optus cables.
Reference has been made earlier to statutory exemptions from charges and rates. No charges under s 611 were made by the New South Wales local authorities in relation to structures for the transmission of electricity, or the conveyance of water; rail structures; traffic lights, signs, and signal boxes, bridges and tunnels (road structures); post boxes; and elevated public walkways, bus shelters, signs, awnings and flags, real estate advertising, other advertising signs, or waste and recycling receptacles, on public places within their respective areas. On the other hand, each local authority imposed charges under s 611 with respect to gas pipelines. As to the rates levied by the Victorian local authorities, other occupiers of the same land who were not liable to rates included occupiers for purposes of electricity distribution or transmission, or generation companies in respect of their poles, wires or cables, retail gas suppliers in respect of their pipes for conveyance of gas for sale by retail, water distribution entities in respect of pipes and valves for the distribution of water, and public transport and road traffic authorities in respect of signs, wires, signals, cabinets and other structures.
Telstra and Optus contend that what is involved is discrimination against carriers within the meaning of cl 44 of the Telco Act.

[53]

The appellants contest the constitutional validity of cl 44. In order to resolve that issue, it is necessary first to consider the scope of the provision in order to determine its operation and effect, for the purpose of relating that to a subject matter in respect of which the Parliament has legislative power[16].
There is a question as to the extent of the application of cl 44, and, in particular, cl 44(1)(a). That question is to be resolved primarily by reference to the legislative context in which the clause appears. The general context is that of a Federal regulatory framework for the telecommunications industry, including the supply of carriage services. The more specific context, contained in Pt 24 of the Telco Act, concerns what the heading to the Part refers to as the powers and immunities conferred upon carriers. In that respect, Div 7 of Pt 1 of Sched 3 deals with the extent to which activities of carriers are exempt from State and Territory laws of general application. The terms of cll 36, 37, 38 and 39 are set out above. Subject to certain exceptions, Divs 2, 3 and 4 of Pt 1 of Sched 3 do not authorise an activity if it is inconsistent with State law. Clause 37 is one exception, and cl 44 is another. Clause 39 deals with general State taxes. Clause 44 addresses a more particular issue. In accordance with settled principles of construction, when a law of a State or Territory is of a kind dealt with in the particular provision, then cl 44 prevails over the general provision. "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative …"[17]. Clause 44 deals with the effect of special kinds of State or Territory laws, that is to say, discriminatory laws. It will be necessary later to address the question whether the New South Wales and Victorian laws presently in question are discriminatory within the meaning of cl 44(1)(a). For the present, it is sufficient to note that, if a State or Territory law is discriminatory in one of the ways referred to in cl 44, and that discrimination involves adverse treatment that is differential by reference to an appropriate standard of comparison, it will attract the operation of that provision. Sub-cl (1) of cl 44 deals with discrimination, either against a particular carrier, or against a particular class of carriers, or against carriers generally. Sub-cl (2) deals with discrimination either against a particular eligible user of carriage services, or against a particular class of eligible users, or against eligible users generally. To the extent covered by sub-cl (2), cl 44 goes beyond the topic of powers and immunities of carriers, but that does not alter materially the context as described in the heading to Pt 24. A particular eligible user of carriage services might have a number of other capacities as well. Plainly, it is discrimination against such a person or corporation in the capacity of a user of carriage services, as distinct from discrimination in some other capacity, that attracts the potential operation of cl 44. Similarly, having regard both to the general and to the more specific context of the legislation, the kind of discrimination against carriers that attracts the potential operation of cl 44 is discrimination against them in their capacity as carriers. Clause 44 is concerned with State or Territory laws which impose discriminatory burdens upon carriers in carrying on activities as carriers authorised by the Telco Act.
Telstra and Optus are public companies although, in the case of Telstra, at the relevant times a majority of the shares was held by the Commonwealth. In that respect, the case is different from Australian Coastal Shipping Commission v O'Reilly[18]. It will be necessary to return to what was said there about s 109 of the Constitution[19]. What is of immediate relevance, however, is that, in O'Reilly, the test applied in determining the validity of the law of the Commonwealth conferring a general exemption from State taxes upon the Commission established in exercise of the trade and commerce power was the relevance of that law to, or its connection with, the head of power exercised in establishing the Commission[20].
The power conferred by s 51(v) of the Constitution, to make laws with respect to postal, telegraphic, telephonic and other like services, includes a power to make laws with respect to telecommunications services. So far as presently relevant, it extends to making laws regulating the terms and conditions upon which such services may be provided, the licensing of carriers, their conduct as licensees, and the conferring upon them of powers and immunities in connection with the activities undertaken by them pursuant to the chosen regulatory framework. The federal object of promoting the development of the telecommunications industry, and ensuring that telecommunications services would be provided to meet the needs of the Australian community, falls within a head of the legislative power of the Parliament of the Commonwealth. Conferring upon carriers an immunity from discriminatory burdens imposed upon them by State or Territory laws in their capacity as carriers has a direct and substantial connection with the power.
It is not to the point to say that cl 44 is also a law with respect to discrimination. A law may bear more than one character, but that does not make it possible to ignore the character (if there be one) of constitutional relevance. The law protecting trading corporations from boycotts, held to be valid in Actors and Announcers Equity Association v Fontana Films Pty Ltd[21], was a law with respect to boycotts, as well as a law with respect to trading corporations. As Stephen J pointed out in that case[22], and after contrasting the situation in Canada, the pattern of distribution of legislative power in Australia is not based on a concept of mutual exclusiveness, and it is inappropriate to seek one sole or dominant character in every law. A law may possess a number of characters. He said[23]:

[61]

Telstra and Optus contend that, if and to the extent to which the provisions of the Local Government Acts of New South Wales and Victoria, pursuant to which the charges and rates in question were imposed or levied, fall within the description of laws which discriminate, or would have the effect (whether direct or indirect) of discriminating, against carriers generally, then they are inconsistent with the Telco Act and invalid.
In The Commonwealth v State of Queensland[35], this Court held that a provision in the Commonwealth Inscribed Stock Act 1911 (Cth) that "interest derived from stock or Treasury bonds shall not be liable to income tax under any law of the Commonwealth or a State" unless a certain condition was satisfied was a law supported by the power in s 51(iv) of the Constitution to make laws with respect to "[b]orrowing money on the public credit of the Commonwealth", and declared that Queensland legislation which made interest derived from Commonwealth stock or Treasury bonds liable to State income tax was to that extent invalid. That decision was referred to by Dixon CJ, in Australian Coastal Shipping Commission v O'Reilly[36], as the first in a line of cases in which "[t]he argument that under a legislative power of the Commonwealth the operation of State laws cannot be directly and expressly excluded has been used without effect". The appellant in O'Reilly was established as a body corporate by the Australian Coastal Shipping Commission Act 1956 (Cth) which also provided that the Commission was not subject to taxation under State laws to which the Commonwealth itself was not subject. The Commonwealth law was held to be a law relevant to, and falling within, the power conferred by ss 51(i) and 98 of the Constitution. It prevailed over a law of the State of Victoria requiring payment of stamp duty on receipts given by the Commission in the course of its trading activities. Similarly, in Botany Municipal Council v Federal Airports Corporation[37] a Federal regulation which authorised licensed contractors to carry out works at the Sydney Airport in spite of a law of the State of New South Wales relating to environmental assessment was held to be effective to exclude the operation of State environmental legislation. In a joint judgment of all members of the Court it was said[38]:

[65]

It is inconsistency between a valid law of the Commonwealth and a law of a State that is involved, and, to be valid, the federal law must be a law with respect to a subject of federal legislative power. This case does not enter upon what Dixon J in Wenn[41] described as "a debatable area" in the law of the Constitution and so does not require consideration of the existence of such an area. The concern indicated by Dixon J appears to arise where a law on its face made in exercise of a head of concurrent legislative power in s 51 of the Constitution is "aimed at" preventing the exercise of State legislative power and accordingly is not "a law of the Commonwealth" for the purposes of s 109 of the Constitution and cannot prevail over legislation of a State passed in exercise of its concurrent power.
It appeared to Wilcox J that, in the application of s 109, there is a material difference between a Federal law which provides, for example, that a carrier shall not be liable to any State tax, and a law which provides that a carrier shall not be liable to any discriminatory State tax[42]. If the difference is thought to be that a law of the second kind is a law with respect to discrimination and not a law within s 51(v), then the answer to that is given above. Beyond that, the difference is elusive. If protecting carriers against the imposition of burdens, such as taxation, by State law has a sufficient connection with the power confined by s 51(v), then it is difficult to understand why protecting carriers against discriminatory burdens does not have the same connection with the power. Nor does such a limited protection become a bare attempt to exclude State power upon a subject as to which the Parliament has not chosen to legislate exhaustively.
In cl 39, the Parliament declared an intention not to protect carriers from State taxes of general application, but the scheme of powers and immunities created by Sched 3, which was to govern the operations of the carriers, was to include (by virtue of cl 44) a protection from discriminatory State taxes and charges. The reasons of policy underlying the distinction are a matter for the legislature, although the responses of local authorities to what Wilcox J described as community concern at the cabling may indicate some of the policy considerations at work. The legislative history shows that an attempt to impose discriminatory taxes or charges, perhaps in order to discourage cabling, or at least overhead cabling, or perhaps simply to raise revenue, was foreseen. As a matter of power, the narrower immunity is as easily sustained as a wider immunity. The enactment of a valid Federal law pursuant to the power engages s 109.

[66]

Discrimination is a concept that arises for consideration in a variety of constitutional and legislative contexts. It involves a comparison[43], and, where a certain kind of differential treatment is put forward as the basis of a claim of discrimination, it may require an examination of the relevance, appropriateness, or permissibility of some distinction by reference to which such treatment occurs, or by reference to which it is sought to be explained or justified. In the selection of comparable cases, and in forming a view as to the relevance, appropriateness, or permissibility of a distinction, a judgment may be influenced strongly by the particular context in which the issue arises. Questions of degree may be involved.
In the present case, the basis for the claim of discrimination is in a comparison between, on the one hand, the charges and rates imposed and levied in respect of the Telstra and Optus cables, and, on the other hand, the treatment of facilities, which are installed or operated above, on or under public land, by utilities or other users of such space and are said to be comparable. The exemptions from charges and rates generally applicable to those facilities (except gas pipelines in New South Wales) are referred to above. As Gibbs J pointed out in Victoria v The Commonwealth (The Payroll Tax Case)[44], it is in the nature of taxing statutes that not all taxpayers are treated with absolute equality, and the fact that some taxpayers enjoy exemptions that are not available to others does not necessarily involve discrimination. It may involve nothing more than differentiation based upon criteria within its constitutional power which it is well open to the legislature to regard as appropriate. In the present case, however, Telstra and Optus point to a general pattern of State legislative treatment of facilities to which their cables have been made an exception.
Clause 44 does not, in terms, identify the kind of comparison that is appropriate for the purpose of considering whether a State law discriminates against carriers generally. (The comparison involved in deciding whether a State law discriminates against a particular carrier, or a particular class of carriers, is more straightforward.) There is extrinsic material capable of assisting in the ascertainment of the meaning of cl 44[45]. The Explanatory Memorandum said:

[69]

In relation to aerial cabling, which appears to be what primarily attracted the attention of the local authorities, the facilities installed by electricity authorities constitute an obvious basis of comparison. The fact that they are singled out in the Explanatory Memorandum confirms that the kind of discrimination with which cl 44 is concerned, in its reference to discrimination against carriers generally, is the subjection of carriers, in that capacity, to a burden of a kind to which others in a similar situation are generally not subject, and that a similar situation includes the use of public space for the installation and maintenance of facilities such as cables, pipes, ducts and conduits. In relation to underground facilities, the position is somewhat more complex, but gas pipelines in New South Wales are, apart from the facilities in question in this case, the exception to a general pattern of exemption.
It is not necessary to resolve the question, raised by a submission of Telstra and Optus, whether it would be sufficient to constitute discrimination that there was even one substantial utility that received the benefit of exemptions denied to Telstra and Optus. Here there is a clear general pattern of exemptions, and it is sufficient to say that the existence of one other significant exception to that pattern (gas pipelines in New South Wales) does not negate discrimination. In addition, in the case of aerial cabling, there is an obvious basis of comparison, namely electricity facilities, which enjoy an exemption.
The appellants point out that the exemptions are granted directly by State laws, whereas the charges and rates are imposed or levied by local authorities acting pursuant to State laws. They also point out that the differential treatment to which the telecommunications cables are subject is a consequence of the combined operation of the exemptions and the impositions or levies. Why, it is asked, does cl 44 prevail over the laws that authorise the charges and rates, rather than the laws that grant the exemptions? The charges and rates take legal effect by virtue of the State laws pursuant to which the resolutions of the local authorities were passed. Clause 44 refers to laws that discriminate, or have the effect of discriminating against carriers. Those are the laws that are of no effect. The laws that confer favourable treatment upon others are not declared by cl 44 to be ineffective. Their existence may give to the laws pursuant to which the charges and rates in issue are imposed or levied the character of being discriminatory, but they do not themselves discriminate, or have the effect of discriminating, against carriers under the Telco Act.
It would be inconsistent with the scheme of the Telco Act, and the context of cl 44, to assert that, in its reference to discrimination, the Telco Act contemplated as a legitimate and appropriate basis of differential imposition of burdens the circumstance that carriers were authorised by a law of the Commonwealth, whereas other utilities or bodies owning or operating comparable facilities were authorised by State laws[46]. Nor is it possible to account for, or justify, the difference on the basis of a distinction between public ownership and private enterprise.
The Full Court was right to hold that Telstra and Optus have made out a case of discrimination within cl 44.

[82]

The appellants in the New South Wales matters are bodies corporate under the New South Wales Local Government Act. They are Hurstville City Council, Kogarah Municipal Council, Leichhardt Municipal Council, Parramatta City Council, Penrith City Council, Randwick City Council, Hornsby Shire Council, Drummoyne Council, Burwood Council, Concord Council and Strathfield Municipal Council. Section 611(1) of the New South Wales Local Government Act confers power on a council to make an annual charge on a "person ... in possession, occupation or enjoyment of a rail, pipe, wire, pole, cable, tunnel or structure laid, erected, suspended, constructed or placed on, under or over a public place." However, the New South Wales Act exempts a number of bodies from the operation of the power, either under s 611(6) of the Act or pursuant to other New South Wales laws. Those protected under s 611(6) of the Local Government Act include the Sydney Water Corporation, the Hunter Water Corporation, any water supply authority, the New South Wales Rail Access Corporation (now the Rail Infrastructure Corporation) and, in some circumstances, the owner or operator of a light rail system. Section 611(6)(a) provides that the section does not apply to the Crown. This immunity protects, relevantly, the Roads and Traffic Authority of NSW[58]. Those protected under other Acts include electricity network operators pursuant to s 50 of the Electricity Supply Act 1995 (NSW) and a person constructing or operating a pipeline authorised by a licence under s 40(1) of the Pipelines Act 1967 (NSW).
Telstra and Optus have installed underground coaxial cable and aerial coaxial cable in local government areas under the responsibility of each of the appellant councils. Acting under s 611 of the Local Government Act, each of the New South Wales appellants has imposed annual charges, at a rate per kilometre, in respect of these cables. Each appellant has also imposed charges under s 611 in respect of Australian Gas Light Company (AGL) pipelines. No charges under s 611 were made in relation to a range of other structures in public places - for instance, electricity wires, rail structures, traffic lights, post boxes, bus shelters and advertising signs.

[95]

The appellants contended that a law of general application does not discriminate merely because it exempts a "small group of identified entities" from its operation. I cannot accept this argument. The reference in cl 44(1) to direct and indirect effect focuses on the actual effect of the State law. That the New South Wales and Victorian provisions are of general application is of no relevance if every entity that could conceivably be charged for their use of public land - other than carriers - is exempted from the operation of the provisions. To describe the exempted entities as a small group is to ignore that they are the only entities other than carriers on which charges could be imposed under the Victorian and New South Wales provisions. Later in this judgment, I consider the significance to this issue of the liability of retail gas suppliers to pay charges in New South Wales.
The appellants submitted that, while the State laws differentiate between the exempted entities and other persons - including carriers - they do not "discriminate against" carriers in the relevant sense. The appellants contended that different treatment of two entities or classes will only be discrimination where the different treatment is based on some impermissible ground or, in the case of indirect discrimination, where apparently equal treatment has a differential impact according to a criterion which is impermissible. They relied on statements by Gaudron J in Street v Queensland Bar Association[64] and by Gaudron J and myself in Castlemaine Tooheys Ltd v South Australia[65] to support this proposition.
However, the distinction between the "constitutional" meaning of discrimination - the sense in which the concept is used in s 117 and in ss 51(iii) and 99 of the Constitution - and the "ordinary" meaning of the term is of little importance in the context of this case. The Full Court held, correctly in my opinion, that the State legislation discriminated against Telstra and Optus even if the apparently narrower scope of the constitutional meaning of that word were applied[66].

[96]

The Full Court accepted that different treatment amounts to discrimination only if there is no reasonable distinction to justify different treatment[67]. The appellants submitted that the key difference between Telstra and Optus on the one hand and the exempted bodies on the other is that the latter occupy land under statutory authorities granted by the States, while the appellants occupy land under authority granted by the Commonwealth. A State, they submitted, is entitled to prevent councils, which are the custodians of its land, from charging rates to the State's agents.
However, the question whether a reasonable distinction exists must be examined in light of the law prohibiting discrimination, not the potentially discriminatory law. As Gaudron J and I said in Castlemaine Tooheys Ltd v South Australia[68], a law "is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant". It is of no present relevance whether or not, in exercising their powers under the applicable Local Government Act, councils are acting reasonably in perceiving a difference between State agencies and bodies authorised to carry out functions under federal law, such as Optus and Telstra. The question is whether the Telecommunications Act permits Optus and Telstra to be treated differently from State agencies in respect of rates and charges.
It is true, as Wilcox J noted[69], that cl 44(1) of Sched 3 to the Telecommunications Act provides no criteria by which a court may determine what differences are legitimate and what are illegitimate. His Honour observed that in this respect it differs from other federal statutes which prohibit discrimination and which provide such criteria, for example, the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth)[70].
For the purposes of this case, it is unnecessary to determine whether cl 44(1) prohibits all differential treatment of carriers. It is sufficient to say that the wide and unconditional language of cl 44(1) suggests that the Commonwealth Parliament intended to protect carriers from special burdens without regard to any policy objective of a State or Territory law which imposed that burden. If the Parliament had intended to allow such policy objectives to be relevant, it would have framed cl 44(1) so as to prohibit only unreasonable discrimination.
If the term "discriminate" in cl 44 is ambiguous, the proposition that the Parliament intended to allow State legislatures to treat carriers differently where this serves a policy objective of the State receives no support from either the Explanatory Memorandum or the Second Reading Speech to the Telecommunications Bill 1996 (Cth). The Explanatory Memorandum states[71]:

[100]

Clause 44(1) prohibits discrimination against a particular carrier, class of carriers or carriers generally. If the discrimination alleged was against a particular carrier, the appropriate comparison would probably be other carriers. Where the discrimination is alleged to be against "carriers generally", however, the issue arises as to the appropriate entity with which "carriers" should be compared. Was the Full Court correct to conclude that the appropriate comparison here was between Optus and Telstra on the one hand and "other bodies which make a similar use of public places"[75] on the other?
The appellants were unable to suggest any alternative point of comparison. Instead, they resorted to the suggestion that cl 44(1) is designed to prevent only laws aimed at carriers, rather than to ensure that carriers receive equal treatment. Such a narrow interpretation of "discrimination" is incompatible with the breadth of cl 44(1). In particular, the reference to the "direct or indirect" effect of a State or Territory law leaves no room for such an argument.
In cases like the present, the allegedly discriminatory law itself provides the comparator for the purpose of cl 44(1). The New South Wales and Victorian Acts confer a power to levy charges or rates on the owners or occupiers of public land, that is, land used for a public purpose. This indicates that the Full Court was correct in comparing the position of carriers with that of other owners or occupiers of public land. In turn, this invites a comparison with electricity suppliers, water suppliers, gas suppliers and other pipeline users. These entities resemble Telstra and Optus in their ownership and/or occupation and use of public land, a use which involves putting wires, cables or pipes over or under the land. Other owners or occupiers of public land, whose use of the land is perhaps less directly comparable with that of Telstra and Optus, include rail authorities, road traffic authorities and public transport authorities. Whether the comparison is made with the first group or the second group, the New South Wales and Victorian Acts exempt all - or in the case of New South Wales, almost all - of these entities from the operation of the legislation. This has the effect that the New South Wales and Victorian Acts authorise charges or rates that discriminate against Telstra and Optus.

[104]

As the Full Federal Court noted, it is necessary to consider the scope of cl 44(1) before considering its constitutional validity. The text of cl 44(1) is set out at [61] above.
The Full Court thought that cl 44 had two possible interpretations. One was that it granted carriers exemption from all discriminatory State and Territory laws[77]. The second was that it prevented discrimination against a carrier by laws that affect the provision of telecommunications services[78].
Each appellant criticised the Full Court's reasoning and submitted that the Court put forward two different interpretations of cl 44(1). The Full Court, after referring to the content of Divs 2, 3 and 4 of Pt 1 of Sched 3 to the Telecommunications Act - which relate respectively to the inspection of land and the installation and maintenance of facilities - said that the "protection must relate to the carrying out of those activities."[79] Second, the Court said that cl 44(1) was designed to prevent State and Territory legislatures from enacting discriminatory legislation "which would burden the activities of a carrier in the course of providing the telecommunications services for which the carrier holds a permit."[80]
The appellants contended that, on the first construction, cl 44(1) does not operate with respect to the Victorian and New South Wales provisions. In addition, Divs 2, 3 and 4 of Pt 1 of Sched 3 do not relate to occupation and enjoyment of telecommunications facilities. If the scope of cl 44(1) derives from those Divisions, the appellants argued, it does not extend to the kind of activities that Telstra and Optus were carrying out, namely, activities that had nothing to do with such inspection, installation or maintenance.
However, I do not think that the Full Court intended to suggest that cl 44(1) was limited to the activities listed in Divs 2, 3 and 4 of Pt 1 of Sched 3. Rather, the Court was suggesting that these Divisions, together with the remainder of the Telecommunications Act, indicate that the Act is concerned with the regulation of carriers acting in their capacity as telecommunications carriers. Schedule 3 is titled "Carriers' Powers and Immunities" and confers a variety of powers and immunities on carriers. The Schedule should not be read so that the immunities contained in it are limited to the powers contained in it. Such a construction is at odds with the accepted purposive approach to statutory interpretation.
The appellants also criticised the second construction of cl 44. They contended that the concept of "telecommunications services" is so vague that it does not identify a particular set of activities which cl 44(1) protects. The Commonwealth Parliament may have intended to protect carriers in the particular activities which their carrier licences, under the Telecommunications Act, allow them to undertake - but it may equally have intended to cover a wider or narrower set of activities. This argument is unpersuasive. When cl 44(1) is viewed in the context of the rest of the Act, it is limited to protecting carriers only in relation to the provision of telecommunications services. The Act authorises the provision of those services. It seems natural to regard cl 44(1) as protecting carriers in so far as they carry out those services. It was not necessary for cl 44(1) to refer specifically to the provision of telecommunications services in cl 44 because this was the subject matter of the entire Act. If this meaning was not clear from the nature of the Act, s 15A of the Acts Interpretation Act 1901 (Cth) would require the clause to be read down so as to protect carriers only in relation to the provision of telecommunications services[81].

[112]

The appellants and the State interveners observed that many of the decisions referred to by the Full Court involved the protection of the Commonwealth or a Commonwealth agency from State legislation. For instance, O'Reilly concerned the Australian Coastal Shipping Commission, a Commonwealth statutory authority established under the Australian Coastal Shipping Commission Act 1956 (Cth). The Attorney‑General for Western Australia suggested that Botany Municipal Council is also such a case. The persons exempted from the relevant New South Wales legislation, the Environmental Planning and Assessment Act 1979 (NSW), were contractors carrying out works for the Federal Airports Corporation, a Commonwealth statutory authority established under the Federal Airports Corporation Act 1986 (Cth).
Although, historically, the Commonwealth has exempted Commonwealth statutory authorities from State taxes, this fact does not mean that these are the only bodies that the Commonwealth can exempt from State taxes or State laws. It is difficult to see why the telecommunications power, which enabled the Commonwealth to create its own telecommunications carrier (Telecom Australia, now trading as "Telstra"[95]) and to protect it from State laws[96], does not extend to protecting a private company operating as a telecommunications carrier from State laws.
The decisions of this Court on which the appellants sought to rely do not support the proposition that the Commonwealth may only exempt itself and its agents from the operation of State taxes or State laws. As O'Reilly concerned a Commonwealth statutory authority, the Court expressed its reasoning in terms of such an authority. However, there is nothing in that decision to suggest that the Commonwealth would only be entitled to protect a statutory authority from State taxation. In Botany Municipal Council, the Court upheld a federal law that exempted licensees of the Federal Airports Corporation from compliance with the Environmental Planning and Assessment Act 1979 (NSW). At no point did the Court suggest that this conclusion was based on the fact that the licensees had acquired any kind of governmental authority from the Federal Airports Corporation.

[123]

The Court did not have before it any of the relevant resolutions. The description that I have just given of them, although imprecise, is apparently the description that the parties were content to adopt, and was in terms incorporated in the declarations of the Full Court of the Federal Court from which these appeals are brought[100].
In 1901 the Commonwealth Government established the Postmaster-General's Department to own and manage all domestic telephone, telegraph and postal services. Subsequently, in 1946, the Commonwealth Government established the Overseas Telecommunications Commission to manage international telecommunications services. These were wholly owned organs of government. In 1975 the Australian Telecommunications Commission was established by s 4 of the Telecommunications Act 1975 (Cth). Although it was corporated (by s 21(1)(a)) it was wholly owned by the Commonwealth and directed by Commissioners appointed by the Governor-General (s 22). Section 6 of the Telecommunications Amendment Act 1988 (Cth) preserved and continued the Australian Telecommunications Commission as a body corporate under the name Australian Telecommunications Corporation (trading as Telecom).
In 1991 however, all of the property, rights and liabilities (actual, contingent and prospective) of Telecom were, by s 11 of the Australian and Overseas Telecommunications Corporation Act 1991 (Cth) ("the AOTC Act"), vested in a company incorporated under the Corporations Law of the Australian Capital Territory with the name Australian and Overseas Telecommunications Corporation Limited ("AOTC"). AOTC was registered under the Australian Capital Territory law on 6 November 1991 as an unlisted public company limited by shares. On 13 April 1993, AOTC was renamed Telstra Corporation Limited. The Transport and Communications Legislation Amendment Act 1994 (Cth) subsequently amended the title of the AOTC Act to the Telstra Corporation Act 1991 (Cth) ("the Telstra Corporation Act"). The Commonwealth is a major shareholder in Telstra Corporation but quite separate from it in all relevant respects.
Section 26 of the Telstra Corporation Act provides that, for the purposes of Commonwealth, State and Territory laws, Telstra is not to be taken as incorporated for a purpose of the Commonwealth, or as being a public authority, instrumentality or agency of the Crown, or as entitled to any immunity or privilege of the Commonwealth. The second Telstra respondent (Telstra Multimedia Pty Ltd) and the Optus respondents have no history of government ownership of any kind. These circumstances, it may, at the outset be noted, provide an important point of departure from the facts of Botany Municipal Council v Federal Airports Corporation ("Third Runway Case")[101]. There the respondent which sought to avoid compliance with State environmental laws was not only a corporation owned by the Commonwealth, but also had acquired under the Lands Acquisition Act 1989 (Cth) the fee simple in the land the subject of the proposed works and identified interests in the dredging site adjacent thereto. The work to be undertaken there, although it might be done by private contractors, was work on Commonwealth land on behalf of, and directly for the benefit of a Commonwealth body. The case has nothing of relevance to say about the Commonwealth's right to impose its own basis of charging (or not charging) for the use by its licensees of land and space in which neither it nor they have any proprietary interest.
Various utilities operators, owned, or licensed, or regulated by the States, or emanations of them, have erected and inserted their installations (the "utilities installations") for the carriage, for example, of water, gas and electricity, in the same, or similar public spaces to the respondents. So too has Australia Post, but it is entirely a department or creature of the Commonwealth and enjoys immunity from rates and like levies sought to be raised by the States or authorities of them by virtue of s 114 of the Constitution.[102]
The States have in some instances legislated to confer exemptions upon some of the owners, occupiers and users of utilities installations.[103] The activities of the respondents are not governed merely by the Telco Act. The Trade Practices Act 1974 (Cth) establishes a regime for the promotion and maintenance of competition in the industry in which the respondents are engaged (see Pts XIB and XIC).
Division 7 of Sched 3 to the Telco Act (comprising cll 36 to 39) is concerned with exemptions to carriers from some State and Territory laws. Clause 36 provides that, subject to cl 37, Divs 2, 3 and 4 of Sched 3 do not operate so as to authorise an activity to the extent that the carrying out of the activity would be inconsistent with the provisions of a law of a State or Territory. Clause 37 then sets out specific exemptions from cl 36. It only applies to an activity carried on by a carrier if the activity is authorised by Divs 2, 3 or 4. Clause 37 then provides as follows:

[148]

There is no doubt, as s 51(v) of the Constitution provides, that parliament may make laws with respect to the activities in which the respondents engage, relevantly telegraphic, telephonic and like services. It is important to keep in mind however that creation of a conflict by the enactment of a Commonwealth law with a State law cannot of itself provide a basis for the validity of a Commonwealth law. Section 109 of the Constitution[108] is not, and cannot be used, either directly or indirectly as a head of power. And it is to that issue that inquiry must first be directed: is the apparently conflicting Commonwealth law within power?
A law enacted by the Commonwealth not sensibly related to, or, to adopt language used by this Court on other occasions, having an "insubstantial, tenuous or distant[109]" relationship only with a head of Commonwealth power, cannot be a valid exercise of that power. It may be accepted that for a law to be a valid exercise of a head of power it is not necessary that every one of its provisions be seen to be exclusively within the power. This is so, not simply because of the presence of the incidental power in s 51(xxxix) of the Constitution[110]. Few if any human or public endeavours can be completely disconnected from others. Take for example the power of the Commonwealth to legislate with respect to weights and measures in s 51(xv) of the Constitution. An Act to require that a particular locally produced commodity may not be sold over the counters of shops in New South Wales unless it be sold in boxes measuring 10 cms by 10 cms by 10 cms exactly, although it may use the language of measures and is in that sense about or related to them, is not truly a law with respect to measures. Its proper characterization would be as a law with respect to either or all of, the particular commodity, retail trade or consumer protection in New South Wales. So too, s 51(xxviii) of the Constitution, "the influx of criminals" would not empower the Commonwealth to make a law prescribing a complete sentencing regime for a State, albeit that the regime might have an effect upon some criminals who might be disposed to try to enter Australia.
In Leask v The Commonwealth[111] Gummow J, before pointing out that a single law can possess more than one character, adopted a passage from the judgment of McHugh J in Re Dingjan; Ex parte Wagner[112]:

[150]

In argument the respondents accepted that the paragraph which has just been quoted stated the test to be applied here.
What rights, powers, liabilities, duties and privileges does cl 44(1) of Sched 3 to the Telco Act purport to create? In answering the question a practical view should be taken of the effect and impact of the provision.[116] Subject to one qualification, it would be mere semantics to regard the right or privilege which the section seeks to create as other than a right or privilege of enjoying exactly the same immunities and exemptions from charges as all, or some of the other operators of utilities using and occupying public spaces which the States own or over which they have legislative power, as the States choose to confer upon them. (The qualification relates to the meaning to be given to "carrier" in the clause, a matter to which I will refer later). Of what character or characters is a law that produces that practical result? It seems to me that a characterization of it as other than a law with respect to the use and occupation of "State" public spaces, or "State activities", or discriminatory charging in respect thereof, is artificial and strained. "State activities" could mean for example, the insistence on payment of registration fees on motor vehicles. Clause 44 would appear to be cast in terms wide enough to preclude a State from exempting a carrier owned and operated or regulated by the State from motor vehicle registration fees unless the respondents' vehicles were similarly exempted. Another equally accurate characterization of cl 44, is as a law with respect to the way in which the States choose to assist, or facilitate, or make less expensive, the delivery of energy and commodities to consumers within the States, by operators of utilities over which the States have control. Such a characterization assumes of course, in the respondents' favour, that a differential approach to charging various utilities operators, including the respondents, is within the concept of "discrimination" as that concept finds expression in cl 44 of Sched 3.
A further accurate characterization of the law is as a law with respect to the price of the use and occupation of State controlled land in which the Commonwealth has no proprietary rights, the Commonwealth[117] (or its licensees the respondents, assuming they could) not having chosen to acquire any. The fact that the respondents may have rights of statutory user carries with it no entitlement to dictate or even influence the financial terms of their use.
Yet another possible characterization of cl 44 is as a law with respect to State constitutional power, a characterization which brings into play the Melbourne Corporation doctrine[118]. Remarks made by Gaudron, Gummow and Hayne JJ in Austin v The Commonwealth[119], the most recent application of Melbourne Corporation, regarding the limits of federal power in relation to its operation upon the States are of relevance to a question of characterization. It is to "'the substance and actual operation' of the federal law [cl 44]" that regard must be had. The State of Queensland with one exception[120] correctly submits that the practical effect of cl 44 is this:

[152]

Because of the other reasons which lead me to the conclusion that I reach in this appeal, it is unnecessary for me to consider whether the true and substantial effect of cl 44, if valid, would also be to confer upon the respondents, contrary to cl 39 of Sched 3, an exemption from liability to taxation, if the charges are to be so identified, and the relationship between these two clauses.
In a passage in Murphyores Incorporated Pty Ltd v The Commonwealth[121] Stephen J (Barwick CJ and Gibbs J agreeing) suggested that the fact that a decision when made would be expressed in terms of a constitutional power of the Commonwealth, was sufficient to enable the decision (and presumably the enactment under which it was made) to be characterized as being under and within the relevant power. This is to prefer form to substance, the latter being that to which courts now look. Accordingly, the fact that different phraseology might be used, unconvincingly in my view, to give cl 44 a flavour of the exercise of the telecommunications power cannot suffice to give it that real and true character.
It is difficult to see how a State law that imposes a charge for use and occupation upon an operator which is not the Commonwealth, but which merely owes its right to carry out its activities to enactments within Commonwealth power can burden the Commonwealth in any way (or for that matter the respondents as its licensees), or give rise to a need for the protection of the Commonwealth. Section 26 of the Telstra Corporation Act manifests a clear intention that the Telstra respondents are not to enjoy any advantages which they would have if they were in fact the Commonwealth. This litigation equally manifests a rejection of that intention as does, it must be assumed, cl 44 itself. What is somewhat unusual is that s 26 of the Telstra Corporation Act is not expressed to be subject to the Telco Act and cl 44 is not introduced by a conventional formula such as "Notwithstanding anything herein or elsewhere ...". The task of interpretation and reconciliation is left therefore entirely to the courts.
I would say this about the respondents' submissions that the charges are a burden. The word "burden" is a misnomer in these circumstances. The New South Wales legislature was right in enacting in s 611(2) of the NLGA that the charges were not to be regarded as a "rate". As s 611(3) makes clear, they are based upon the nature of the benefit enjoyed. They are charges for value received personally. They are not in any sense a tax or a rate. A significant and valuable benefit not derived by the community generally is enjoyed by the respondents. The language of revenue law is inapt in the circumstances. The charges are not even burdensome in the sense of being arbitrary or excessive, because, so far as New South Wales at least is concerned, s 611(4) of the NLGA provides a mechanism for judicial assessment of quantum.
Another unusual feature of the Telco Act is that there is no definition, or indeed even any attempt at internal identification of those carriers with whose activities and charges made upon them, the respondents and like carriers are to be compared for the purposes of cl 44. The explanation may be that originally the relevant purpose was to prohibit discrimination between telecommunications carriers. On their faces, the expressions used in cl 44, "particular carrier", "class of carriers" and "carriers generally" could mean carriers by road, rail or air, and not necessarily by cable, wire or pipeline. It is quite unsatisfactory to have to resort to a Second Reading speech and only the vaguest of indications in the Telco Act to try to ascertain at which kinds of carriers as comparators the Telco Act is aimed. It seems that the legislature may even have had in mind State railways as an appropriate comparator. Relevantly the Second Reading speech was as follows[122]:

[162]

The passage uses language which departs from the Telco Act and contains a large assumption: that the State exempting enactments were "potentially unfairly discriminatory". It is far from obvious that it is unfair to exempt the means of delivery of, for example an essential commodity such as pure water, but not the means of delivery of television programmes transmitted from a studio of a commercial broadcaster, or bounced on to or off a satellite and transmitted by cable for a substantial reward to a commercial broadcaster and the respondent carriers.
Nor can a court know whether, and what compromises may have been made between a State and a carrier to enable the latter to provide a service or a commodity to residents of that State. So too, a State may have chosen to exempt one or more carriers from charges, or to differentiate between carriers in order to provide employment or infrastructure in a particular area, or to provide a fundamental service to its taxpayers and residents. Intrusion into these matters represents a grave potential interference with the capacity of the States to carry out their functions of government: government in relation to essential matters of water, energy, the environment, and also therefore, health. By s 154(2)(b) of the VLGA, for example, water distributors in public ownership are exempted from charges. It is no answer to say that these are matters which may be taken into account in deciding, pursuant to cl 44 of Sched 3 to the Telco Act whether discrimination has occurred. I doubt whether any satisfactory equation exists or can be devised of the various benefits and costs of the objects a State may wish to achieve with the charges that it chooses to impose or refrain from imposing. In any event a State should not be obliged, as it would be in proceedings under or relating to cl 44, to justify and quantify the political, demographic, social and economic objectives that it sets out to achieve in the exercise of legitimate State power, particularly in respect to land which neither the Commonwealth nor a non-public licensee of the Commonwealth has sought to acquire, or has acquired. On the construction of cl 44 advanced by the respondents the States' ability to further their policies by, for example, enacting workplace safety laws, and regulating motor vehicle insurance, would all be in jeopardy so far as they related to the respondents. To give cl 44 such an operation would inevitably, to use the language of Gaudron, Gummow and Hayne JJ in Austin[125], involve a "'curtailment' of [the] 'capacity' of the States 'to function as governments'."
Something needs to be said about the respondents' submission that the charges are taxes. Luton v Lessels[126] is the most recent decision of this Court as to the nature of a tax. There Gleeson CJ cited[127] a passage from the judgment of Latham CJ in Matthews v Chicory Marketing Board (Vict)[128]:

[166]

McHugh J in Luton v Lessels also pointed out that the fact that charges collected may go into Consolidated Revenue does not mean that they are on that account alone taxes[131]. The same may equally be said of the depositing of the charges here in the appellants' general or rate accounts, or otherwise as the case may be.
Something additional needs to be said about the proposition that the charges are a tax by way of rates or a "rate". The answer to that proposition is a short one. The charges here are made not just in respect of the use and occupation of airspace and land, but for space and land owned or controlled by the appellants. However the charges are to be characterized, a characterization of them as a rate upon land or space is inappropriate.
The charges are therefore neither a tax, a rate nor a burden.
The Full Court of the Federal Court relied, for the different view that they formed upon three cases. Each of them is distinguishable. Australian Coastal Shipping Commission v O'Reilly[132] was concerned, not as here with corporations separate from and mere licensees of the Commonwealth but with a corporate agency of the Commonwealth, as Dixon CJ described it[133], a Commonwealth government body. It is one thing to seek to protect as the legislation did there, a Commonwealth government body, but a quite different thing, to protect a commercial licensee forming no part of the government, a matter to which I will return. Indeed one of the main purposes of the Telco Act and the other related legislation was, as the Second Reading speech further stated, "to promote fair, but vigorous, competition in this industry"[134]; a goal somewhat removed from that ordinarily pursued by a governmental, and therefore usually, a monopolistic or preferred public enterprise. There is another point of distinction. In Australian Coastal Shipping Commission the issue was whether the agency should bear the burden of a state tax, stamp duty, an exaction simpliciter, in exchange for which the Commonwealth body obtained no rights, property, privilege or benefits. The issue here is not whether the respondents should bear the burden of a State tax: it is whether they should be entitled to use land and space owned by the State or a State creature upon exactly the same financial terms as undefined and only at best, vaguely contextually and extraneously identified other carriers.
The second and third cases relied upon were Strickland v Rocla Concrete Pipes Ltd[135] and Actors and Announcers Equity Association v Fontana Films Pty Ltd[136]. Both were concerned with the validity of sections of the Trade Practices Act. The second held that the proscription of certain monopolies with the object of protecting Australian trade and commerce generally was valid. It has little, in my opinion, of relevance to say about a provision such as cl 44.
The third of the cases does not in my opinion throw much light upon the problem here. What the statement of Mason J[137] quoted by the Full Court[138] does emphasize is the need for the drawing of careful distinctions between laws going beyond the power generally, and laws which incidentally only have an operation upon objects outside the power. Here cl 44 strikes directly at, and does not merely incidentally touch or operate upon the use and occupation of State land and infrastructure and the price thereof.
Clause 44, in its application to State laws cannot be characterized as a law with respect to telegraphic, telephonic and other like services merely because those State laws may have application to an operator required by the Telco Act to hold a licence to engage in telecommunications services. Neither R v Brislan; Ex parte Williams[139] nor Jones v The Commonwealth [No 2][140] which were relied on by the respondents supports a proposition that a law exempting a Commonwealth licensee from State taxes, let alone charges for the use of State land and space, must be characterized as a law with respect to postal, telegraphic, telephonic and other like services.
Something more needs to be said about the application of the Melbourne Corporation doctrine. In my opinion cl 44 answers the description of a law to prevent, control, or seriously curtail State legislative action in a manner that infringes the implied restriction recognized in Melbourne Corporation. In terms it is directed to the intended and legitimate effect of State laws and rights arising under State law, rather than the operation and effect of an authority given by the Commonwealth. The Commonwealth Minister's power to exempt specified State laws, and to make the exemption subject to conditions, is another indication that the focus of cl 44 is on State laws, rather than on an exercise of Commonwealth power. The connexion sought to be drawn by the respondents is tenuous: between the State laws imposing charges and that a Commonwealth licensee might have to pay them at a differential rate from others. It is true therefore that it is the operation of the State laws in relation to persons other than carriers, as much as the operation of State laws in relation to "carriers", which cl 44 seeks to control. In the circumstances the use of the word "protect" by the respondents in the sense of shielding or in some way defending the respondents against an assault by way of a charge levied upon them, is as misplaced and inappropriate as the respondents' use of the words "burden" and "tax". To exempt another or others, is not to burden the respondents. Or, to impose the same or a similar charge upon others, is not to burden, or otherwise to make an imposition upon the respondents.
It cannot be entirely ignored that the respondents are not government agencies or part of government. Windeyer J in O'Reilly[141] was the only Justice who expressed the view that the fact that the Commission there was an agency of the Commonwealth, was not a decisive factor[142]. At other times however emphasis has been placed on that fact. Dixon CJ in O'Reilly did so[143]. And in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[144], Dawson, Toohey and Gaudron JJ said[145]:

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