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[1979] HCA 19
High Court of Australia
1979-04-05
Aickin JJ, Gibbs J
Original judgment source is linked above.
High Court of Australia Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ. McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19
ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order that the order to review be discharged with costs.
This is an appeal from a judgment of the Full Court of the Supreme Court of Queensland which allowed an appeal from a decision of a stipendiary magistrate dismissing a complaint brought by the present respondent against the appellant under s. 8 of the Unordered Goods and Services Act, 1973 Q., as amended, ("the Act").
(1) A person shall not assert a right to payment of any charge or fee for the making of a directory entry or the rendering of a prescribed service, whether made or to be made or rendered or to be rendered by him or another person and whether made or to be made or rendered or to be rendered within or without the State or partly within and partly without the State, unless he has reasonable cause to believe (proof of which shall lie upon him) that a note complying with section 7 has been signed by or on behalf of the person against or in relation to whom that right is asserted.
(2) Without limiting the generality of subsection (1), in proceedings for an offence that is a contravention of that subsection the receipt by a person, at any place within the State, of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent, within or without the State, by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person, made at the place where the receipt occurs, of a right to payment from the first-mentioned person of a charge or fee for the making of the directory entry or the rendering of the prescribed service, as the case may be.
(3) In this section "prescribed document" in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service.
In order to comply with s. 7 a note must, in relation to a contract or agreement for the making of a directory entry, specify:
(a) the particulars of the entry inserted or proposed to be inserted;
(b) the amount of the charge or fee or the basis on which the charge or fee to be charged is or is to be calculated;
(c) the name of the directory or other similar publication in relation to an entry in which the charge or fee is payable; and
(d) the name and address of the person publishing the directory or other similar publication (s 7(3)).
A person is not liable to make any payment under any such contract unless a note complying with the section has been signed by him or on his behalf (s. 7(1)).
The case for the respondent was based upon the receipt through the post by an officer of the Queensland Government Tourist Bureau in Brisbane of a document that was sent or purported to have been sent by or on behalf of the appellant. The document bore the heading "International Telex Directory", followed by the statement that the directory was published by the appellant whose address in Sydney was given. It was addressed to "Queensland Government Tourist Board". It included, in a prominent position, the words "Invoice/Statement"; in form it resembled an invoice or statement of account and showed "Reference Number", "Annual Subscription" (viz., $68.50), "Previous Balance" (viz., nil) and "Total" (viz., $68.50) in such a way that at a cursory glance it might have suggested that the total mentioned was due for payment. However, there appeared prominently, in capital letters, the following words: "If the entry is desired please use the payment advice slip attached to this statement. This is not a demand or claim for payment of the amount shown." In smaller type there appeared the words "Contract and Invoice terms overleaf". On the reverse of the document there were some numbered paragraphs, including the following: "1. Upon payment of the pro-forma offered on reverse side your name and information as indicated will be included in our international directory." The "payment advice slip" attached to this document was in fact a duplicate "Invoice/Statement"; the amounts opposite the words "Annual Subscription" and "Total" were however blank, possibly because of imperfect reproduction. The appellant is a company registered in New South Wales. There was no proof that the appellant sent the document, but it was admitted in evidence under the evidentiary provisions contained in s. 15 of the Act. There is no "Queensland Government Tourist Board", but it is not contested that the document was intended to be addressed to the Queensland Government Tourist Bureau, an unincorporated organization which is an agency of the Crown in the right of the State of Queensland. The appellant did not attempt to suggest that it had reasonable cause to believe that a note complying with s. 7 had been signed.
The first submission on behalf of the appellant is that s. 8 does not apply where the assertion of a right to payment is made against the Crown. This submission is based on the premise that as a general rule the same meaning should be given to the same word wherever it occurs in a statute, especially if it occurs more than once in the same section. It is not disputed that s. 8 of the Act does not bind the Crown - see s. 13 of the Acts Interpretation Act, 1954 Q., as amended. It is argued that this means that the word "person" where it last appears in s. 8(1), and where it appears on the second and third occasions in s. 8(2), does not refer to the Crown, and that for this reason "person" where it appears elsewhere in the section similarly does not refer to the Crown. This argument cannot be accepted. The rule that the same words which occur in different parts of a statute have the same meaning is one which "must yield to the requirements of the context" (Madras Electric Supply Corporation Ltd. v. Boarland [1] ); it is "only a presumption" (Littlewoods Mail Order Stores Ltd. v. Inland Revenue Commissioners [2] ). It is well recognized that a word may be used in two different senses in the same section of the one Act: see the cases cited in Craies on Statute Law, 7th ed. (1971), p. 169. If it is right to say that person in s. 8 in some places means "person other than the Crown", that is only because of the circumstance that the Act does not bind the Crown. The fact that an offence is one that may not be committed by the Crown is no reason for concluding that it may not be committed against the Crown. It would be irrational to hold that because the word "person", when used to refer to the offender, does not include the Crown, therefore the word, when used to refer to the victim of the offence, also does not include the Crown. There is no reason why the prohibitions contained in the section should not apply when the person against whom the right to payment is asserted is an agency of the Crown. The section is quite generally expressed and it is impossible to conclude that the legislature intended to create an exception in favour of offences committed against the Crown. The first submission made on behalf of the appellant therefore fails.
The appellant next relies on an argument of quite a different kind, namely that in so far as s. 8 of the Act applies to the facts of the present case, it contravenes s. 92 of the Constitution and is invalid. This argument is based on the concluding words of s. 8(3). Those words, it is said, mean that any writing that sets out the price for making a directory entry is a "prescribed document" even though the writing does not suggest that the entry has been made or ordered or that the price is payable and even though the document is in no way misleading. It is then submitted that the effect of s. 8(2) is to render it unlawful to send from one State to another a document which does no more than inform the recipient of the price that would be payable if the recipient required a directory entry to be made and placed an order for that service to be performed, and that this would be so even if the document were sent at the request of the recipient, and that such a provision places a direct burden on interstate trade, commerce or intercourse of a kind that cannot be regarded as merely regulatory.
It was conceded in the present case that the appellant was caught by s. 8 only by reason of the operation of the provisions of sub-s. (2). The receipt by the officer of the Queensland Government Tourist Bureau of the document that was sent or purported to have been sent by the appellant from New South Wales was deemed to be an assertion within s. 8(1), that is of course assuming that the document was a "prescribed document" within s. 8(3). Under s. 8(2), although the offence is constituted by the receipt of the document, the person liable to penalty is the person by whom it was, or purported to have been, sent. If the document was sent by post from outside the State, to penalize the sender because the document was received in Queensland would be to impose a penalty on the sender for sending the document interstate. The direct operation of the section, in so far as its scope is expanded by s. 8(2), is to place a restraint on the sending of documents of a certain kind, including the sending of documents interstate. It is true that to send a document of the kind in question would not in itself be part of interstate trade, and indeed there is no evidence that the appellant was engaged in interstate trade. It is also true that if the document was delivered personally, rather than sent through the post, there would be no act of interstate commerce or intercourse involved. Nevertheless the sending by post of a communication from New South Wales to Queensland would in itself be an act of interstate commerce or intercourse - see Hospital Provident Fund Pty. Ltd. v. Victoria [3] . A direct restraint of or burden upon the sending of a communication from one State to another could only be lawful if the enactment which imposed the restraint or burden could properly be regarded as doing no more than effecting a permissible regulation of the manner in which commerce or intercourse could be carried on.
The meaning of the proposition, laid down in The Commonwealth v. Bank of N.S.W. [4] that "regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom" has since been discussed by this Court in many cases, including Samuels v. Readers' Digest Association Pty. Ltd. [5] and Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [6] where other authorities are mentioned. It is unnecessary for the purposes of the present case to engage in a further discussion of that question, because the real difficulty in the case lies not in determining the governing principles but in construing the statutory provisions in question and applying them to the facts of the case. There can in my opinion be no doubt that the provisions of s. 8(1), s. 8(2) and the first limb of s. 8(3) in combination are merely regulatory. Those provisions are designed to prevent one person from sending to another a document that suggests that a payment should be made for the making of a directory entry, unless the sender has reason to believe that a note complying with s. 7 has been signed by or on behalf of the recipient, or in effect that the recipient has given a written order for the making of the entry. The provision that the charge or fee should not be recoverable in the absence of a note might fairly be regarded as affording reasonable protection to possible customers against pressure or undue solicitation. Moreover, in view of the provisions of s. 7 it would be deceitful to suggest that the charge or fee should be paid if a note had not been signed. The provisions mentioned might reasonably be regarded as directed at practices in trade or commerce which are deceitful or otherwise undesirable. There is nothing discriminatory about them. Legislation of that kind does no more than provide part of the legal framework within which trade, commerce or intercourse may be carried on, and does not contravene s. 92.
However, when the second limb of s. 8(3) operates in conjunction with sub-ss. (1) and (2) of s. 8 the legislation goes further. The document which may not then be sent, unless the sender has reasonable cause to believe that a note complying with s. 7 has been signed, is a document that "sets out the price for the making of the directory entry " If these words are given their natural meaning it is enough that the document is one that states the price. The phrase "sets out" may not be altogether appropriate when one item only is to be enumerated, but it carries no suggestion that there should be an assertion or implication that the price set out ought to be paid. I am unable to construe the second limb as though "price" were followed by the words "which is claimed to be payable". The word "price", when applied to property, may mean the amount payable for something already sold, or the amount that the owner of property expects to receive for it if and when he sells it. When, as here, the word is used in relation to a service, it may similarly mean the amount that will be charged if the service is requested and performed. The first limb of s. 8(3) expressly refers to a writing that asserts or implies that payment of a charge or fee should be made, and the second limb would add nothing to the sub-section if it also referred only to a writing that set out the price in such a way as to assert or imply that it should be paid. The context provided by the first limb of s. 8(3) strongly supports the conclusion that the words of the second limb should be given their ordinary meaning. They refer to a document which contains an express statement of the price for making the entry, and therefore includes a document which informs the person to whom it is addressed what amount he would have to pay if he requested that an entry be made and it was made. This would appear to mean that it would be an offence for one person to send to another a note complying with s. 7 for the purpose of having it signed. However, it does not follow that this construction of s. 8(3) would render s. 7 unworkable, since obviously it would be possible for the person ordering the service to prepare the note for himself. It cannot be denied that the construction which I have suggested should be put on the second limb of s. 8(3) is an inconvenient one, but it is the construction to which the words of the section plainly lead.
On this construction, it would be an offence against s. 8 to send from New South Wales to Queensland a document inquiring whether a potential customer wished to have his name included in a directory and informing him of the price payable if he did wish it to be included. It would even be an offence to write in reply to an inquiry from a potential customer, giving him, at his request, information as to the price which would be charged if an entry were to be made. Once this construction is given to the section, it is impossible to uphold it as regulatory. There is no doubt that in matters of regulation the legislature must be allowed a very wide discretion. If it fairly appears that the object of the legislation is the proscription of undesirable and objectionable practices in trade or commerce, it is for the legislature, not for the court, to say what practices should be regarded as reprehensible: cf. Samuels v. Readers' Digest Association Pty. Ltd. [7] and Greutner v. Everard [8] . No doubt the motive of the legislature in enacting s. 8 was the proscription of undesirable and objectionable practices, but the second limb of s. 8 (3) gives the legislation an operation which no one could fairly say was limited to that subject matter. On no possible view can it be said to be undesirable in all circumstances to send a document informing the recipient of the price that would be charged for a service if it were performed. Yet that is what the legislation prevents, even if the recipient has asked for the document and it is in no way misleading. In Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [9] , Stephen J. said:
It is one of the tasks of the legislatures of this country to create the permissible framework within which s. 92 is to operate and of this Court to adjudicate upon whether their enactments go beyond the permissible limits of that framework and entrench upon the freedom which s. 92 preserves; but it is no part of this Court's task to evaluate the merits of the component parts of that framework; its features are open to judicial examination only for the purpose of ensuring that it is a framework which is being erected and not a barrier. The distinction between the two will frequently be elusive but never illusory. In the present case the second limb of s. 8(3) goes beyond permissible limits; it erects a barrier to interstate commerce and intercourse, and is invalid in its operation on interstate commerce and intercourse. Perhaps I should repeat, because the situation is somewhat unusual, that the section has no direct operation on interstate trade, but it does directly affect interstate commerce and intercourse. 1. (1969) 120 C.L.R., at p. 38. 2. (1960) 103 C.L.R. 177, at pp. 185-187. 3. (1972) 127 C.L.R., at p. 655.
The section must be construed so as to make it valid to the extent to which it is not in excess of power: s. 4 of the Acts Interpretation Act, 1954 Q., as amended. The first limb of s. 8(3) is constitutionally unobjectionable, and the final question is whether a conviction of the appellant could be sustained in reliance on the first limb. The document received by the Queensland Government Tourist Bureau does not expressly assert that the payment should be made; the question is whether it implies that the payment should be made. In my opinion the words "a writing that implies" mean that the implication must be gathered from the words of the writing as a whole - it is not enough that an implication may be drawn from parts of the writing if it is negatived by other parts. The word "invoice" which is used in the document usually suggests that goods have been delivered, and in the present context no doubt implies that services have been performed. Similarly the word "statement" may be taken to imply that the document is a statement of account - that moneys are due. However the document expressly states that the service to which it refers would only be performed if the "payment advice slip" attached were forwarded and it further expressly states that it is not a demand or claim for payment. Although the document may be in a form that is calculated to mislead the unwary, taken as a whole it does not in my opinion imply the contrary of what it expressly states. It was therefore not a "prescribed document" within the first limb of s. 8(3).
For these reasons in my opinion the magistrate was correct in dismissing the charge. I would accordingly allow this appeal.
The facts, together with the relevant legislation, sufficiently appear from other judgments.
The Queensland Government Tourist Bureau, an instrumentality of the Queensland Crown, was one of, no doubt, numerous persons from whom the appellant, McGraw-Hinds (Aust.) Pty. Ltd., solicited an order for the making of an entry in a publication, styled the International Telex Directory. Having been prosecuted and, on appeal, convicted for an offence under s. 8 of the Unordered Goods and Services Act, 1973 Q., as amended, the appellant, as one of its contentions, argues that, since the Queensland Crown is not, in the absence of express words, bound by the statutes of that State (Acts Interpretation Act, 1954 Q., as amended, s. 13), the injunction contained in s. 8(1) against the assertion of a right to payment for directory entries does not include such an assertion when made to the Crown. In effect, it is said that not only do State statutes not bind the Crown but that, at least in the case of this particular statutory provision, the Crown is excluded from those against whom an offence may be committed.
This curious result is said to flow from the draftsman's use of "person" to describe those to whom an assertion, made unlawful by s. 8(1), is directed. This section uses "person" to describe both the maker of the unlawful assertion and its recipient. Since the Crown is not to be bound, and is therefore free to make such assertions, it would, it is said, be to give the one word, "person", different meanings within the one sub-section if it did not include the Crown as maker, but did include it as recipient, of an unlawful assertion. It is also said that in any event "person" in a State statute should not be understood to include the State Crown.
No authority directly supports these propositions, which involve an extension of the general rule, excluding the Crown from the restraints of legislation, which finds no support either in history or in what might be thought to be likely legislative intent. This is especially the case with a modern statute, aimed at undesirable trade practices, and in a community in which the State has come to conduct a large variety of undertakings of a more or less commercial character.
If to afford to the Crown, in common with subjects generally, the protection of s. 8(1) requires that "person" should be given different meanings in different portions of the sub-section, I would not see this as presenting any great difficulty of interpretation. In fact no such requirement is, I think, involved. As Lord Tucker said in Madras Electricity Supply Corporation Ltd. v. Boarland [10] , the "ordinary and natural meaning" of "person" is one which "clearly includes the Crown". In s. 8(1) "person" may throughout bear the wide meaning which it naturally conveys, a meaning expressly extended by s. 36 of the Acts Interpretation Act so as to include bodies corporate, while its restrictive operation, enjoining "a person" from particular conduct, will nevertheless not apply to the Crown because of the specific provisions of s. 13 of the Acts Interpretation Act. This does not mean that "person" is given a shifting meaning: all that occurs is that, insofar as the sub-section is restrictive, effect is given to s. 13, notwithstanding the use of a term in itself apt to include the Crown.
In my view this submission made on the appellant's behalf, and turning upon the meaning of "person", must fail.
For the purposes of the appellant's remaining contention, which invokes s. 92 of the Constitution, it is necessary first to determine the meaning of s. 8(3) of the Act and to do so in the context not only of the remainder of that section but also of so much of the Act as relates generally to the soliciting of directory entries.
The Act is concerned with what are seen to be practices in trade which, if unregulated by legislation, are social evils. Sections 7 and 8 are concerned with one such practice, the soliciting of directory entries, while s. 9, not itself presently relevant, confines the temporal operation of those two sections.
Section 7 makes unenforceable any promise to pay (and, if already paid, permits recovery of) a charge or fee under a contract for the making of such an entry unless a note in statutory form has been signed and a copy supplied. Thus s. 7 operates upon contractual relationships existing between parties to a contract concerning a directory entry: for the purposes of this judgment I ignore, as irrelevant the alternative operation of this section, and of s. 7, an operation which is concerned not with directory entries but, rather, with the "rendering of a prescribed service".
Section 8(1) is, on the other hand, a penal provision and, unlike s. 7, applies whether or not any contract has come into existence between the parties. It creates an offence by making it unlawful, in the absence of a note complying with s. 7, to assert a right to payment for the making of an entry. What might constitute the making of such an assertion was thought to require statutory elucidation, hence sub-ss. (2) and (3) of s. 8. Sub-section (2) deems receipt within Queensland of a "prescribed document" to be an assertion: sub-s. (3) then gives meaning to the term "prescribed document".
The respective functions of sub-ss. (2) and (3) of s. 8 are of importance. Sub-section (2), without more, has no operative effect. All it does is to deem a "prescribed document" to be such an assertion as sub-s. (1) speaks of. But because it attaches no meaning to "prescribed document" it is, on its own, inoperative. Standing alone its deeming effect will never result in anything being deemed an "assertion". Sub-section (3) serves the sole function of giving operative effect to sub-s. (2). It does so by assigning two alternative meanings to "prescribed document". That it should supply two meanings rather than only one, and in that sense operate in two limbs, follows from the form taken by sub-s. (2), which is itself concerned with two distinct situations. The first is that of the receipt of a prescribed document relating to a directory entry, sent by a person who has made that entry. The second is that of the receipt of a prescribed document, again relating to a directory entry but in this case sent by a person who proposes to make that entry. The first concerns an entry already made, the second an entry to be made in the future. Then, when sub-s. (3) supplies two meanings to the phrase "prescribed document", it conforms to this temporal distinction, already established in sub-s. (2). It accordingly describes two types of document. The first is a writing asserting or implying that payment of a charge or fee should be made by the recipient for the making of the directory entry: that applies to the case of an entry proposed to be made. The second is a writing which is not concerned with any assertion or implication that payment of a charge or fee should be made but which, instead, "sets out the price for the making of the directory entry ". It applies to the case of an entry already made, hence the change of language which occurs, the shift from the making of an assertion or implication that payment of a fee or charge should be made, appropriate words for a service to be rendered in the future, to the setting out of "the price for the making" of an entry, appropriate to describe the price of completed work.
So interpreted, each of these two interdependent sub-sections has, with the aid of the other, a full and appropriate operation, involving no ambiguity, nor any result which is not in harmony with the rest of s. 8. No part of either sub-section strikes at mere innocent offers to treat concerning the publication of a directory entry. They are, throughout, concerned with something in the nature of just such an assertion as sub-s. (1) legislates for.
As I read s. 8, the second limb of sub-s. (3) has no application to the present case, which concerns the proposed making of a directory entry and not one already made.
There remains the first limb. The document received in this case was, I think, one which answers the description of "a writing that asserts or implies that the payment of a charge or fee should be made for the making" of a directory entry: the title which the document bears, "Invoice/Statement", and the accompanying details of how much is to be paid would be conclusive of this were it not for the other words which also appear on the document, "This is not a demand or claim for payment of the amount shown". The document must, of course, be read as a whole since it is the character which the entirety of the writing possesses that will determine whether it answers the statutory description: no single part of it can be decisive one way or another and if some parts are inconsistent with others it will be the impression which, on balance, is conveyed by the document as a whole that will determine its character. Read as a whole the document possesses, in my view, just such a character as is described in the first limb of sub-s. (3). Addressed, as it is, to potential subscribers and not to a court of law, I regard the statement that it is not a "demand or claim" as quite consistent with it containing an assertion or implication that payment should be made. Both "demand" and "claim" convey, in the language of commerce, an abrupt, even a harsh, impression, usually reserved for the recalcitrant debtor. It is perhaps only the governmental or semi-governmental creditor which can afford to describe the first notification which it sends out as a "first and final demand". To deny that the document is either a demand or a claim is not inconsistent with it being a notification that payment should be made.
Accordingly, reading the document as a whole, I would regard it as answering the description in the first limb of s. 8(3). Its receipt was, therefore, the receipt of a "prescribed document" within s. 8(2) and all the ingredients of an offence under s. 8(1) are satisfied.
My earlier reference to the appellant's reliance upon s. 92 of the Constitution has led me to this examination of the operation of s. 8 generally and of sub-s. (3) in particular. I can now return to the nature of the appellant's reliance upon s. 92. It turns upon the second limb of s. 8(3) and depends upon attributing to it an operation going far beyond what the appellant concedes to be valid regulation, namely the prevention of demands for payment for unordered services, and striking, instead, at any "document telling people what the price is, even if it is a perfectly innocent, non-misleading document " This is how the appellant seeks to invoke the protection of s. 92.
On the view which I take of s. 8(3), no question of conflict with s. 92 arises. Not only do I regard the second limb of sub-s. (3), the only provision said to be in conflict with s. 92, as irrelevant in the present case: even were it relevant, it will be apparent from what I have already said that I would not regard its operation as extending to the mere quotation of a price for an offered service, which is the meaning the appellant seeks to give it so that the protection of s. 92 may be invoked.
The issues in this appeal from a decision of the Full Court of the Supreme Court of Queensland relate to the construction, application and constitutional validity of s. 8 of the Unordered Goods and Services Act, 1973 Q., as amended ("the Act"). The Full Court held that the receipt of a document sent by the appellant to the Queensland Government Tourist Bureau ("the Bureau") constituted a contravention by the appellant of s. 8, that the section did not infringe s. 92 of the Constitution and that the magistrate's order dismissing the respondent's complaint should be set aside.
(2) Without limiting the generality of subsection (1), in proceedings for an offence that is a contravention of that subsection the receipt by a person, at any place within the State, of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent, within or without the State, by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person, made at the place where the receipt occurs, of a right to payment from the first-mentioned person of a charge or fee for the making of the directory entry or the rendering of the prescribed service, as the case may be.
(3) In this section "prescribed document" in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service.
The words "a note complying with section 7" in s. 8(1) require reference to sub-ss. (3) and (4) of s. 7 which provide:
(3) In order to comply with this section a note referred to in subsection (1) shall, in relation to a contract or agreement for the making of a directory entry, specify -
(a) the particulars of the entry inserted or proposed to be inserted;
(b) the amount of the charge or fee or the basis on which the charge or fee to be charged is or is to be calculated;
(c) the name of the directory or other similar publication in relation to an entry in which the charge or fee is payable; and
(d) the name and address of the person publishing the directory or other similar publication.
(4) In order to comply with this section a note referred to in subsection (1) shall, in relation to a contract or agreement for the rendering of a prescribed service, specify -
(a) the particulars of the service rendered or proposed to be rendered; and
(b) the amount of the charge or fee for the service or the basis on which the charge or fee to be charged is or is to be calculated.
The respondent's complaint charged the appellant with asserting a right to payment of a charge for the making of a directory entry, not having reasonable cause to believe that a note complying with s. 7 of the Act had been signed by or on behalf of the person against or in relation to whom the right was asserted. The particulars of the charge and the conduct of the case at first instance indicate that the prosecution relied upon the provisions of sub-ss. (2) and (3) of s. 8 of the Act in order to establish that the appellant had committed an offence under s. 8(1).
According to the undisputed evidence, the Bureau in Brisbane received in the post a document sent by the appellant. The front of the document took this form: International Telex Directory Published by McGraw-Hinds (Aust.) Pty. Ltd. Suite 5, 686 New South Head Road, Rose Bay 2029, Sydney. Australia. INVOICE/STATEMENT date 22/8/75 Your entry as below: Telex Number: 40235 reference ET-375 Answer Back Code: QGTOURS AA40235 number annual Queensland Government Tourist Board, subscription $68.50 Adelaide St, Brisbane previous balance - - * total $68.50 if the entry is desired please use the payment advice slip attached to this statement. * this is not a demand or claim for payment of the amount shown. *Contract and Invoice terms overleaf: On the back of the document were six clauses or conditions, the first of which read: "Upon payment of the pro-forma offered on reverse side your name and information as indicated will be included in our international directory".
Attached to the document was a duplicate differing from the front of the original in two respects only. The duplicate included the words " please return this portion with payment to:" followed by the name and address of the appellant. The figure "$68.50" opposite the words " annual subscription " and " total " was omitted. The omission was accidental due to the failure of the carbon to make an imprint.
The appellant made no attempt to set up a case that there was reasonable cause to believe that a note under s. 7 had been signed.
On all issues of fact but one, the magistrate made findings adverse to the appellant. He found, in effect, that there was a receipt of a prescribed document, in the form of a writing that set out the price for the making of a directory entry, sent by or on behalf of the appellant who proposed to make that entry and hence, by virtue of the deeming provisions of s. 8(2), an assertion of a right to payment of a charge or fee for the making of a directory entry. Nevertheless, the magistrate dismissed the complaint upon the ground that the Bureau was not a person against or in relation to whom a right to payment of a charge or fee for the making of a directory entry could be asserted, because the Bureau was an instrumentality of the Crown and the Crown was not included within the meaning of the word "person" as used in s. 8(1).
On an application for an order to review, the Full Court of the Supreme Court appears to have accepted the findings of the magistrate adverse to the appellant. However, the Court held that the magistrate had erred in finding that the Crown was not a person under s. 8(1) against or in relation to whom a right to payment could be asserted. The Court rejected the appellant's submission that s. 8 infringed s. 92 of the Constitution, being of the opinion that s. 8 merely effected the regulation of "undesirable and objectionable" trading practices and was therefore not inconsistent with s. 92.
For this Court the first issue is whether the Crown is comprehended by the term "person" where last mentioned in s. 8(1). Since the Act does not bind the Crown (s. 13 of the Acts Interpretation Act, 1954 Q., as amended), or, in other words, subject the Crown to the liabilities imposed by the Act, the Crown is necessarily excluded from the meaning of the word "person" in s. 8 where the word is used to describe a person committing an offence against the section. But the presumption that the Crown is not bound by statute unless the contrary is expressly stated or appears by necessary implication has no application to benefits arising by virtue of statute. The Crown is protected and not prejudiced by its inclusion within the description of those persons against whom an offence under the section can be committed. And it is not rational to suppose that the legislature intended to permit an undesirable trading practice to be adopted against the Crown when it prohibited resort to that practice against everyone else. In my opinion, the Crown is, under s. 8(1), a person against or in relation to whom a right to payment of a charge or fee for the making of a directory entry or the rendering of a prescribed service can be asserted.
The interpretation of s. 8 is an essential preliminary to a consideration of that part of the appellant's case that depends on s. 92 of the Constitution. There are two limbs to the definition of prescribed document in s. 8(3): the first speaks of "a writing that asserts or implies that the payment of a charge or fee should be made", and the second of "a writing that sets out the price". In my opinion, these two limbs, generally speaking, contemplate distinct types of writing. The first limb is designed to catch those documents which state or suggest that the recipient is under a legal obligation to pay a charge or fee to the sender for the making of a directory entry or the rendering of a prescribed service, whether the obligation arises from a contract or otherwise. The second limb is apt to cover those documents which do not state or suggest that there is a legal obligation to pay a charge or fee but merely set out the price which will be payable if the recipient enters into a contract with the sender to pay the consideration set out in the document in return for the making of a directory entry or the rendering of a prescribed service.
This construction of s. 8(3) of the Act is prompted by a variety of considerations. First and foremost there is the language of the subsection. The first limb of s. 8(3) looks to an assertion or implication that a payment of the relevant charge or fee should be made. The word "should" imports the existence of a legal obligation to make the payment. For a document to come within the first limb, it must contain a demand for payment that proceeds or purports to proceed from a basis of legal entitlement, viz. a contract. The demand itself may be asserted or implied. An assertion connotes some positive claim to payment of the charge or fee; an implication signifies something less than a positive claim, something in the nature of a suggestion or intimation.
As I have remarked, the words of the second limb of s. 8(3) appear to comprehend documents of a type quite different from those included within the first limb of the sub-section. In my opinion, "a writing that sets out the price" for the making of a directory entry or the rendering of a prescribed service simply refers to a document which states the consideration that would be payable if the recipient of the document were to enter into a contract under which the sender would be entitled, upon the making of the entry or the rendering of the service, to payment by the recipient of that consideration.
To hold that the word "price" in the second limb denotes the consideration payable pursuant to a legal obligation to pay for the making of a directory entry or the rendering of a prescribed service would, in effect, render the second limb of s. 8(3) otiose by depriving it of a meaning and content distinct from that of the first limb. Furthermore, the change in language from "charge or fee" in the first limb to "price" in the second tells against that interpretation. The words "charge or fee", particularly in the context in which they appear, are certainly apt to denote a payment to which a person is entitled because he has already performed some relevant legal obligation. But the word "price" as employed in the second limb properly describes, in my opinion, the amount payable by the recipient of the document if he were to choose to contract with the sender for the making of a directory entry or the rendering of a prescribed service. Although one often speaks of a "charge" or "fee" for a service rendered and of a "price" payable for property, this distinction in usage seems to have no place in s. 8(3).
The meaning which I would accord to the sub-section is strengthened by reference to the wording of s. 8(2). Sub-sections (2) and (3) of s. 8 are, of course, closely related, since the combined operation of their provisions defines the circumstances in which a person is deemed to have committed an offence under s. 8(1). To be caught by the terms of s. 8(2), a person must be one who "made or proposes to make" a directory entry or "rendered or proposes to render" a prescribed service. In general, only a person who has made an entry or rendered a service would, within the first limb of s. 8(3), assert or imply that payment of the relevant charge or fee should be made. Likewise, it is a person who proposes to make an entry or render a service who would be concerned to set out the price within the second limb of the sub-section.
I acknowledge that this construction of s. 8 produces inconvenient results. It reads the section as prohibiting the circulation of a price list or list of charges for directory entries and for services, whether supplied in response to a request for information or not. It also reads the section as prohibiting the sending of an invitation to treat or an offer to contract. The prohibition is qualified because it has no application if there is reasonable cause to believe that a note complying with s. 7 has been signed. But it is quite unreal to think that in the ordinary course of business and commercial affairs a person minded to send by post any of the documents to which I have referred would secure an antecedent signed note complying with s. 7. It would not be practical so to do. No doubt such a note could be brought into existence in advance of the personal delivery to an intending customer of any of these documents, but in that event there would be no point in delivering a price list or list of charges though there might be some point in delivering an invitation or offer. However, these consequences, inconvenient as they are, are not in themselves a sufficient reason for giving the language of s. 8(3) a different construction. This is because the language does not lend itself to another interpretation.
I have said that the effect of s. 8 is to prohibit the circulation by post of a price list or a list of charges and the sending by post of an invitation or offer. I say that, notwithstanding that s. 8(2) operates in relation to the receipt of a document. The sub-section is inclusive in its operation and its purpose is to give to the prohibited act a location at the place of receipt, so as to ensure that s. 8 catches documents which are despatched from places outside Queensland. But this is by the way, for to make the receipt of a document an offence is effectively to prohibit the despatch and the delivery of the document.
The document received by the Bureau from the appellant is, in my view, a "prescribed document" only under the second limb of s. 8(3). I do not accept the argument for the respondent that the document is capable of being brought within the meaning of the first limb of the sub-section. No doubt the document was calculated to mislead the recipient into the belief that there was some obligation to pay the appellant for the publication of a directory entry, but this does not determine whether the document asserted or implied that the payment should be made. Although the document in form appears to be an invoice or statement of account and is headed "Invoice/Statement", it explicitly states that it is not a demand or claim for payment. However deceptive its form may be, the document must be read as a whole, and when it is read in its entirety and the words in capitals at the foot of the front page are taken into account, it emerges that the amount stated is payable only in the event that the offer is accepted in the manner indicated. An express statement that the document is not a demand or claim for payment seems to me to be necessarily inconsistent with any assertion or, a fortiori, any implication that the relevant payment should be made. In substance, the document is an offer made by the appellant to publish an appropriate directory entry upon payment of the consideration stipulated in the document and, as such, "a writing that sets out the price for the making of a directory entry" within the second limb of s. 8(3).
The constitutional issue raised by the case is accordingly confined to the question whether s. 92 invalidates the provisions of s. 8 of the Act to the extent that they create an offence in relation to the receipt of a document setting out the price for the making of a directory entry. It was argued for the respondent that s. 8 does not strike at anything which is an essential element of trade, commerce and intercourse among the States, and hence is incapable of infringing s. 92. The suggestion was that the receipt of a prescribed document is something which stands outside the strict conception of interstate trade and commerce which has prevailed for the purposes of s. 92. The answer to this argument is that the prohibition against receipt is, in truth, a prohibition against the despatch or delivery of a prescribed document, and that the despatch and delivery of communications across a State border in the course of commerce, more particularly when those communications are offers capable of being converted into a contract by acceptance, form part of that interstate trade, commerce and intercourse which is protected by s. 92. Just as the movement of goods and persons across a State border is protected by s. 92, so also is the sending of communications, whether the movement across the border takes place pursuant to the requirements of a contract or not. We are not here concerned with the question whether a particular contract forms part of interstate trade, whether the contract calls for the delivery of goods from one State to another and whether, in consequence of that contract, one of the contracting parties is engaged in interstate trade or the transport of the goods forms part of that trade: cf.Samuels v. Readers' Digest Association Pty. Ltd. [11] . We are now concerned with the question whether the sending of an invitation to treat or an offer to contract struck at by s. 8 falls within the protection of s. 92. I need do no more than refer to the observations of Dixon C.J. in Hospital Provident Fund Pty. Ltd. v. Victoria [12] and my comment upon them in H. C. Sleigh Ltd. v. South Australia [13] . A contrary view seems to have been expressed by Kitto J. in his judgment in the Readers' Digest Case [14] , but it was not a view which commended itself to the other members of the Court.
The next and final question is whether s. 8 may be characterized as a regulatory law and on that account escapes the destructive effect of s. 92. It is established by the Readers' Digest Case and by Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [15] that a law which regulates trade practices, even a law which prohibits undesirable trade practices, may be compatible with s. 92. But to constitute a permissible regulation it must appear that there is, or appears to be, an undesirable trade practice and that the law in question is a reasonable regulation of the trade in the light of that practice (North Eastern Dairy Co. Ltd. v. Dairy Industry Authority of N.S.W. [16] ). In this case I do not doubt that some of those who are engaged in publishing trade directories and in rendering services have resorted to objectionable practices in seeking subscriptions in business and that there is a consequential need to regulate the trade. But I cannot think that a law which goes so far as to prohibit the despatch and delivery of price lists and lists of charges, even when supplied in response to a request for information, and to prohibit the despatch and delivery of invitations to treat and offers to contract, subject only to the qualification mentioned in s. 8, is a reasonable regulation of the trade. In my judgment s. 8 travels beyond what might be thought necessary to regulate the trade with a view to protecting the public from malpractice.
In the result I am of the opinion that the second limb of s. 8(3) in its application to documents received from places outside Queensland contravenes s. 92 (see s. 4 of the Acts Interpretation Act Q.). I would accordingly allow the appeal.
Section 8 of the Unordered Goods and Services Act, 1973 Q., as amended, provides as follows:
(1) A person shall not assert a right to payment of any charge or fee for the making of a directory entry or the rendering of a prescribed service, whether made or to be made or rendered or to be rendered by him or another person and whether made or to be made or rendered or to be rendered within or without the State or partly within and partly without the State, unless he has reasonable cause to believe (proof of which shall lie upon him) that a note complying with section 7 has been signed by or on behalf of the person against or in relation to whom that right is asserted.
(2) Without limiting the generality of subsection (1), in proceedings for an offence that is a contravention of that subsection the receipt by a person, at any place within the State, of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent, within or without the State, by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person, made at the place where the receipt occurs, of a right to payment from the first-mentioned person of a charge or fee for the making of the directory entry or the rendering of the prescribed service, as the case may be.
(3) In this section "prescribed document" in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service.
The appellant was charged that it asserted a right to payment of a charge for the making of a directory entry, not having reasonable cause to believe that a note complying with s. 7 of the Act had been signed by or on behalf of the person against or in relation to whom the said right was asserted. Section 7 (3) and (4) of the Act provides:
(3) In order to comply with this section a note referred to in subsection (1) shall, in relation to a contract or agreement for the making of a directory entry, specify -
(a) the particulars of the entry inserted or proposed to be inserted;
(b) the amount of the charge or fee or the basis on which the charge or fee to be charged is or is to be calculated;
(c) the name of the directory or other similar publication in relation to an entry in which the charge or fee is payable; and
(d) the name and address of the person publishing the directory or other similar publication.
(4) In order to comply with this section a note referred to in subsection (1) shall, in relation to a contract or agreement for the rendering of a prescribed service, specify -
(a) the particulars of the service rendered or proposed to be rendered; and
(b) the amount of the charge or fee for the service or the basis on which the charge or fee to be charged is or is to be calculated.
There was tendered in evidence a document headed "International Telex Directory" and described in the document as "Invoice/Statement". The document came from the appellant whose address was stated in the document to be Suite 5, 686 New South Head Road, Rose Bay 2029, Sydney, Australia. The document was received in Brisbane by post by the Queensland Government Tourist Bureau. It showed the form of entry proposed in a telex directory, with the telex number of the Queensland Government Tourist Bureau, an answer back code, and the description "Queensland Government Tourist Board [sic], Adelaid [sic] St, Brisbane". On the right hand side of the document below the words Invoice/Statement appeared the following:
Date 22/8/75 Reference ET-375 Number Annual Subscription $68.50 Previous Balance - - *Total $68.50
A duplicate of this form was also enclosed containing the same information but with the entries opposite the items lastly stated not included. On this duplicate below the heading there were the words " please return this portion with payment to:" and then the name and address of the appellant were printed.
At the bottom of each of the documents which I have described there were two lines of print as follows:
if the entry is desired please use the payment advice slip attached to this statement.
*this is not a demand or claim for payment of the amount shown.
The asterisk at the commencement of the last statement clearly refers back to the asterisk against the item "Total" in the tabulation.
I find that by virtue of the provisions of section 8, subsections (2) and (3) and notwithstanding that it contains the statement that it is not a demand or claim for payment of the amount shown, Exhibit 1 does assert a right to payment of a charge for the making of a directory entry. However, he found that the Queensland Government Tourist Bureau, being an instrumentality of the Crown, could not within the meaning of s. 8 of the Act have asserted against it a right to payment of any charge or fee for the making of a directory entry and he dismissed the charge.
On an order to review, the Supreme Court of Queensland affirmed the conclusion of the magistrate that the document fell within the terms of s. 8 but it concluded, contrary to the magistrate's view, that such a document, asserting a right to payment against the Crown, fell within the terms of the section.
There was raised before the Queensland Supreme Court the question whether the application of s. 8 to the facts of this case offended against s. 92 of the Constitution. The Court held that it did not. It therefore set aside the decision and order of the magistrate and remitted the matter to him. This Court granted special leave to appeal.
The first question is whether s. 8 applies to an assertion of a right to payment against the Crown. I can see no reason at all why it should not. It is true that the Act does not bind the Crown: Acts Interpretation Acts, 1954-1971 Q., s. 13. However, the fact that the Act does not bind the Crown is no reason for concluding that the Crown is not a person in respect of whom an offence under s. 8 of the Act might be committed. It has been submitted that the word "person" should be given the same meaning throughout the section. But to say that the word "person" does not include the Crown in the description of persons who may commit an offence against the section, but does include the Crown as a person against whom an offence against the section may be committed, does not give different meanings to the same word in the same section. In the different context it gives a different content to the word arising from the circumstance that the Act does not bind the Crown. To include within the scope of the Act the assertion of a right to payment against the Crown does not directly or indirectly affect a prerogative of the Crown, and whether the test be one of construction of the Act in the light of that prerogative or whether the test be one of direct application of the law of the prerogative in the absence of a contrary legislative intention, the result is the same (Madras Electric Supply Corporation Ltd. v. Boarland [17] ).
The argument on s. 92 has been so presented that it depends upon the definition of prescribed document in sub-s. (3). It has been submitted that the document the subject of these proceedings does no more than set out the price of the directory entry, and that to prohibit a company in New South Wales from making an offer by letter post to a person in Queensland offering to insert a directory entry, with an accompanying statement of the consideration payable, interferes with the freedom of trade commerce and intercourse among the States. On the other hand, for the respondent it is submitted that the document in the present case asserted or implied that the payment of a charge or fee should be made for the making of a directory entry within the words of s. 8(1) and the first part of s. 8(3) and that the prosecution did not depend upon the application to the facts of the case of the concluding clause in s. 8(3).
In my opinion the respondent is correct in this submission. I do not think that a conclusion is governed by the presence in the document of the sentence " this is not a demand or claim for payment of the amount shown ". In form and description it is an "Invoice/Statement". A person receiving it could quite likely and reasonably place the documents with other invoices and statements awaiting payment and pay the same without directing his attention to the footnote. It may be that the effect of the footnote is that the writing as a whole does not assert that payment of the charge should be made but certainly, in my opinion, the writing implies by its form that the payment of the charge should be made. An ordinary, but not over-careful, person could take the document as implying that, being an invoice/statement, stating a charge, that charge should be paid. That is a mischief at which, it seems to me, the statutory provision is aimed.
Further, in my opinion, the words in s. 8(3) "sets out the price for the making of the directory entry" mean the setting out of the price in such a way that it does not appear simply as the consideration which would be payable upon acceptance of the offer and performance of the resulting contract but the setting out of the price in such a way that it appears to be the price presently being charged for a directory entry which has been or will be made. When ss. 7 and 8 are read together it seems to me that the word "price" must be read as "price charged" or "price payable" under an incurred obligation. It does not refer to a mere statement of consideration in an offer. The "Invoice/Statement" stated a price in a form which appeared to suggest that that price was payable, that the price was charged for a directory entry made or to be made. I do not think that this is the less so because there is included in a footnote a statement that no demand or claim for payment is being made. In my opinion, the conclusion of the magistrate that the document fell within the description of prescribed document in s. 8(3) is sustainable despite the presence of the footnote.
That being so, it has not been argued that the document, if it can be so regarded, does not fall within the terms of the section. Nor has it been argued that the section applying to a document so regarded imposes a prohibition inconsistent with s. 92. I therefore do not find it necessary to consider whether a prohibition on the mere making of an offer by a person in one State to a person in another to insert a directory entry for a stated consideration would offend against s. 92. I would dismiss the appeal.
This is an appeal against an order absolute by the Supreme Court of Queensland (Lucas, Douglas and Kneipp JJ.) which set aside an order by Mr. D. J. Cook S.M. dismissing with costs a complaint against the appellant, McGraw-Hinds (Aust.) Pty. Ltd. (a body incorporated under the laws of New South Wales) under s. 8 of the Unordered Goods and Services Act, 1973 Q., as amended ("the Act"), which provides:
(1) A person shall not assert a right to payment of any charge or fee for the making of a directory entry or the rendering of a prescribed service, whether made or to be made or rendered or to be rendered by him or another person and whether made or to be made or rendered or to be rendered wholly or partly in the State, unless he has reasonable cause to believe (proof of which shall lie upon him) that a note complying with section 7 has been signed by or on behalf of the person against or in relation to whom that right is asserted.
(2) In proceedings for an offence that is a contravention of subsection (1) without limiting the generality of that subsection, the receipt by a person of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person of a right to payment from the first-mentioned person of a charge or fee for the making of the directory entry or the rendering of the prescribed service as the case may be.
(3) In this section "prescribed document" in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service.
Section 8 is directed primarily against the well-known directory fraud practised in Australia and elsewhere. There are various provisions against this fraud in State Acts (and see s. 64 of the Trade Practices Act 1974 Cth, as amended). Statements or invoices are sent out either asserting a right to payment for a directory which has not been ordered, or in misleading or deceptive terms calculated to trap the unwary recipient into thinking that such a right exists. The appellant sent a deceptive document to the Queensland Government Tourist Bureau.
Two substantial questions arise. One is whether the Bureau is a "person" within the meaning of the words, "receipt by a person", in s. 8(2). The magistrate dismissed the complaint on the basis that the Bureau was not such a person. The Supreme Court, on an order to review, held that it was such a person. The second is whether the Act is to be read down in accordance with s. 4 of the Acts Interpretation Act, 1954 Q., as amended (which confines Queensland legislation within constitutional limits) in order to avoid a contravention of the Commonwealth Constitution which would otherwise arise from the presence of the words, "or that sets out the price for the making of the directory entry or rendering of the prescribed service", in s. 8(3). The second question arises because the magistrate and the Supreme Court decided that a conviction could be based on s. 8(3) including those words.
On the question whether the Crown is a "person" against whom an assertion or claim for money can be made contrary to the Act, I assume that the Bureau is, for this purpose, the Crown. The Act does not bind the Crown (see s. 13 of the Acts Interpretation Act) but the fact that the Crown is not bound by an Act does not mean that the Act has no application whenever the Crown is involved, or that the Crown is ignored. Where an Act is aimed at preventing mischief to the public in general, the presumption is that it is intended to protect not only the public individually but also its collective representatives or agencies, whether these are labelled the government, the Crown, Crown agencies or instrumentalities (see Madras Electric Supply Corporation Ltd. v. Boarland [18] ; also Colin H. H. McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1977)). The Act protects the Crown although it does not bind it. In recent years there has been a decided trend in common law countries towards lessening governmental immunity (see Nieting v. Blondell [19] ). The mysticism associated with the concept of the Crown tends to obscure the fact that it is not likely that an Act designed to protect the public generally from malpractice would permit such malpractice against the government and its numerous trading corporations or instrumentalities. Therefore, the Bureau is a "person" within s. 8.
The appellant also contends that the words in s. 8, "or that sets out the price for the making of the directory entry or rendering of the prescribed service", would, but for s. 4 of the Acts Interpretation Act, contravene s. 92 of the Commonwealth Constitution. The appellant was engaged in trade, commerce and intercourse among the States and is entitled to the protection of s. 92 if it is applicable. Section 8 of the Act does not impose any customs duty or similar fiscal impost. Section 92 of the Constitution is, therefore, not applicable for the reasons I gave in Buck v. Bavone [20] and a number of later cases.
The appellant further contends that, by reason of those words, s. 8 interferes with freedom of communication which is impliedly guaranteed by the Constitution. Its contentions are: (1) that a writing is a prescribed document even if it is not misleading or deceptive and even if it does not suggest that the entry has been made or ordered or that the price is payable; (2) that s. 8(2) makes the receipt of such a document sent or purporting to be sent by or on behalf of a person who proposes to make the entry or render the prescribed service an offence (even if he does so at the request of the recipient); and (3) that this is an arbitrary interference with freedom of communication. The respondent did not dispute that so read the inclusion of those words in s. 8(3) is an arbitrary interference with freedom of communication, but contended that the words should be interpreted to confine them to documents that are misleading or deceptive. In my opinion, the natural and correct meaning of the words is not so confined. Therefore, the inclusion of those words in s. 8(3) is an arbitrary interference with communication.
Traditionally, constitutions are instruments which briefly state the framework of government, the political divisions and organs, their composition, functions and interrelations, and sometimes specific guarantees of human rights. Because of the brevity of constitutions, implications are a prominent feature in the history of their judicial interpretation. The Australian Constitution does not express all that is intended by it: much of the greatest importance is implied. Some implications arise from consideration of the text; others arise from the nature of the society which operates the constitution. Constitutions are designed to enable a society to endure through successive generations and changing circumstances. As Isascs J. said in Commonwealth v. Kreglinger & Fernau Ltd. [21] :
Constitutions made, not for a single occasion, but for the continued life and progress of the community may and, indeed, must be affected in their general meaning and effect by what Lord Watson in Cooper v. Stuart [21a] calls "the silent operation of constitutional principles". 1. (1926) 37 C.L.R. 393, at p. 413. 2. (1889) 14 App. Cas. 286, at p. 293.
A constitutional principle, such as responsible government, may even appear inconsistent with the written text, nevertheless it operates. Isaacs J. went on to say [21] :
"Responsible government", said Lord Haldane on an occasion referred to in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [22] , is "the greatest institution which exists in the Empire, and pertains to every constitution established within the Empire". And it was to this constitution that Lord Haldane was specially directing his words. It is part of the fabric on which the written words of the Constitution are superimposed. Even where specific rights are spelled out, for example, in the United States Constitution, there may remain others which are implied (see United States v. Guest [23] ; Shapiro v. Thompson [24] ; Griswold v. Connecticut [25] ; Roe v. Wade [26] ). 1. (1926) 37 C.L.R. 393, at p. 413. 2. (1920) 28 C.L.R., at p. 147. 3. (1966) 383 U.S. 745, at p. 758 [16 Law. Ed. 2d 239, at p. 249]. 4. (1969) U.S. 618, at p. 629 [22 Law. Ed. 2d 600, at p. 612]. 5. (1965) 381 U.S. 479 [14 Law. Ed. 2d 510]. 6. (1973) 410 U.S. 113 [35 Law. Ed. 2d 147].
The history of interpretation of the Australian Constitution shows that implications have been freely made. Implications of federalism, in particular of intergovernmental immunity, have been made, but these are not the only possible implications. In West v. Commissioner of Taxation (N.S.W.) [27] , Dixon J. said:
Since the Engineers' Case, a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the Court in the Engineers' Case meant to propound such a doctrine. It is inconsistent with many of the reasons afterwards advanced by Isaacs J. himself for his dissent in Pirrie v. McFarlane [28] . Later, as Chief Justice, in Australian National Airways Pty. Ltd. v. Commonwealth [29] (and repeated in Lamshed v. Lake [30] ) he said: "We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications." (See also the reasons Rich and Starke JJ., who were also members of the majority in the Engineers' Case, advanced in South Australia v. Commonwealth [31] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria [32] and Melbourne Corporation v. Commonwealth (the State Banking Case) [33] .) In the State Banking Case, Starke J. said [34] : "The federal character of the Australian Constitution carries implications of its own". 1. (1937) 56 C.L.R. 657, at pp. 681-682. 2. (1925) 36 C.L.R. 170, at p. 191. 3. (1945) 71 C.L.R. 29, at p. 85. 4. (1958) 99 C.L.R. 132, at p. 144. 5. (1942) 65 C.L.R. 373, at p. 447. 6. (1942) 66 C.L.R. 488, at pp. 515-516. 7. (1947) 74 C.L.R. 31, at pp. 65-66, 70-75. 8. (1947) 74 C.L.R., at p. 70.
In In re Richard Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation [35] the Court held legislation invalid because it contravened assumptions or implications arising from the federal nature of the Constitution and the position of the States.
In Victoria v. The Commonwealth (the Payroll Tax Case) [36] , Windeyer J. said that "It is well to remember" Dixon C.J.'s statement that we should not be fearful about making implications and: " implications have a place in the interpretation of the Constitution our avowed task is simply the revealing or uncovering of implications that are already there [37] ."
Walsh J. said [38] : " there is a substantial body of authority for the proposition that the federal nature of the Constitution does give rise to implications by which some limitations are imposed upon the extent of the power of the Commonwealth Parliament to subject the States to its legislation."
Gibbs J. said [39] : " the purpose of the Constitution, and the scheme by which it is intended to be given effect, necessarily give rise to implications as to the manner in which the Commonwealth and the States respectively may exercise their powers, vis-à-vis each other." He went on to speak of the State Banking Case: "Although different reasons were given by the various members of the majority to support their decision, in my opinion all of them held or recognized that implications must be made in the Constitution because of its federal nature." [40]
In my opinion, other constitutional implications which are at least as important as that of responsible government, arise from the nature of Australian society. The society professes to be a democratic society - a union of free people, joined in one Commonwealth with subsidiary political divisions of States and Territories. From the nature of our society, an implication arises prohibiting slavery or serfdom. Also from the nature of our society, reinforced by the text (particularly Ch. III, "The Judicature", and Ch. I, "The Parliament") in my opinion, an implication arises that the rule of law is to operate, at least in the administration of justice. Again, from the nature of our society, reinforced by parts of the written text, an implication arises that there is to be freedom of movement and freedom of communication. Freedom of movement and freedom of communication are indispensable to any free society. I adhere to what I said on this subject in Buck v. Bavone [41] and in Ansett Transport Industries (Operations) Pty. Ltd. v. Commonwealth [42] . References to implications of freedom of movement or communication may be found in Crandall v. Nevada [43] ; R. v. Smithers; Ex parte Benson [44] ; Re Alberta Statutes [45] , per Duff C.J.; S. I Bushnell, "Freedom of Expression - The First Step", Alberta Law Review, vol. 15 (1977), p. 93; Switzman v. Elbling and Attorney-General (Quebec) [46] per Rand J. The implication raised is not of absolute freedom, but it is at least freedom from arbitrary interference. It is not now necessary to explore what the limits of permissible regulation of freedom of communication are; whatever those limits are, they are exceeded in this case. Therefore, the final words of s. 8(3) exceed the legislative power of the Queensland Parliament and are invalid. The same result is achieved by the operation of s. 4 of the Acts Interpretation Act which keeps the operation of Queensland Acts within legislative power.
I have had the advantage of reading the reasons for judgment prepared by Mason J. and I am in substantial agreement with them. There is little that I need to add.
In my opinion, it is clear that s. 8(3) of the Unordered Goods and Services Act, 1973 Q., as amended, describes two categories of document; first, one which "asserts or implies that the payment of a charge or fee should be made for the making of the directory entry or the rendering of the prescribed service", and second, one which "sets out the price for the making of the directory entry or rendering of the prescribed service". I am unable to read the second category as referring to cases where the document appears to state the price charged for a directory entry already made or which will be made. That ground is already covered by the first limb of the sub-section, and there is no reason to suppose that the second category is a mere repetition of the first. The words appear to me to refer to documents which set out the price of a directory entry or service if required or ordered. If there is a difficulty about the second limb it is not what it means, but why it was inserted in the sub-section at all. However, once it is there the sub-section must operate according to its terms.
In my opinion, the appellant's document can only be brought within the term "prescribed document" if it falls within the second limb of sub-s. (3), because, for the reasons given by Mason J., I do not think that the document can be said to "assert or imply" that a payment should be made. It asserts the contrary and leaves no room for the required implication. The document may be misleading in some respects or be capable of misleading a recipient, but that is not the criterion established by the section.
In my opinion, s. 92 of the Constitution does not permit the valid operation of a law which prohibits the sending from one State to another of a document which lists prices for which goods or services are available or quotes a price for goods or services in response to an inquiry. Such acts are at the least "intercourse" between the States; indeed they are commercial intercourse. It is true that s. 8(2) operates upon the receipt in Queensland of the relevant document, but what it does in effect is to give to receipt of the document in Queensland, the deemed quality of an assertion in Queensland by the sender (whether or not in Queensland) of a right to payment. The practical operation, however, is to prevent the despatch of the document from other States to destinations in Queensland. I agree with the reasons given by Mason J. for the conclusion that this provision cannot be regarded as "regulatory" in the relevant sense.
I am unable to accept the argument of the Solicitor-General for the Commonwealth that s. 92 is concerned only "with the freedom of the totality of interstate trade, with trade as a whole" and that the proper question to ask of this legislation is whether "the law as a whole [is] directed to the freedom of interstate trade as a whole". These propositions seem to me to be in direct conflict with decisions too numerous to mention. They resemble more than anything the views expressed in the Transport Cases of the 1930s which were expressly overruled by the Privy Council in Hughes and Vale Pty. Ltd. v. New South Wales [47] and not since revived by any decision of this Court.
The Acts Interpretation Act, 1954 Q., as amended, contains in s. 4 the following provision:
Every Act shall be read and construed so as not to exceed the legislative power of the State, to the intent that, where any enactment or provision thereof, but for this provision, would be construed as being in excess of that power, it shall nevertheless be a valid enactment or, as the case may be, provision to the extent to which it is not in excess of that power. In the result, therefore, s. 8 must be "read down" so as not to apply to relevant documents dispatched from another State to destinations in Queensland.
I am, therefore, of opinion that the appeal should be allowed and the order of the Full Court of the Supreme Court of Queensland set aside.
McGraw-Hinds (Aust) Pty Ltd
Smith