CONSIDERATION
30 The central argument advanced by the appellants was that the "services" specified in the Notices, were not "in trade or commerce" as required by the definition of "services" in s 4(1) of the CC Act, focussing in this regard on the activities of the DPI and the Minister as the supplier of the alleged "services".
31 It is not contentious that "in trade or commerce" means activities or conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: see Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 604.
32 The appellants submitted that the specified services were no more than the rights and benefits provided by the Minister as part of the exercise or potential exercise of statutory power, closely governed by the Mining Act. They argued that such an exercise or potential exercise of statutory power does not have any trading or commercial character so as to fall within the extended definition of "services". It was then submitted that even though the specified services may be in relation to commercial activities of other parties, such as Loyal and Cascade, the exercise or potential exercise of statutory authority is not in trade or commerce. Further, the appellants submitted that the businesses of Loyal and Cascade can have no relevance to the question because the words "provided, granted or conferred" indicate that the question must be determined from the "supply" perspective having regard to the use of that combination of words in the definition of "supply" in the CC Act, not from the point of view of the person who "acquires" the service. It was submitted that the absence of the word "accept" (or a synonym thereof) is similarly significant.
33 The Notices rely on a possible contravention of s 45(2)(a)(i) because the CAU is said to have contained an exclusionary provision. Both s 4D (the definition of "exclusionary provision") and s 45(3) (the definition of "competition" in s 45(3)) turn on whether, but for a provision of the CAU, the parties to it would be, or would be likely to be, in competition and would, or would be likely to, "supply or acquire … goods or services". Similarly, s 44ZZRD(3)(c) sets out when the "purpose condition" in s 44ZZRD(2) is satisfied and it relates to "bids in relation to the supply or acquisition of goods or services".
34 As we have said, the appellants' main focus in this appeal, as it was before the primary judge, was upon the meaning of "services" in s 4(1) of the CC Act. They submitted that as the services specified in the Notices do not fall within the meaning of "services" the following consequences arise:
(1) there is no "market" or "competition in any market" for the purposes of s 45(3) of the CC Act; and
(2) the two companies referred to in the Notices were not "competitive with each other" for the purposes of s 4D(2) of the CC Act;
therefore:
(3) there is no exclusionary provision for the purposes of s 45 of the CC Act; and
(4) there is no cartel provision within the meaning of s 44ZZRD of the CC Act.
35 Whilst there was extensive debate about the ambit of the definition of "services", this appeal can be disposed of even if the appellant's approach to that term is accepted and the operation of the substantive provisions is confined to instances where the supplier of services (in this appeal, the Minister) is acting in trade and commerce. This is so for the following reason.
36 As we have endeavoured to illustrate by reference to the EOI Process, this was not a situation of a mere application for a licence renewal or approval in a statutory or regulatory context without more: see Gold and Copper Resources Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 281 and Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245. Nor was this just a process involving the deliberative act performed by the Minister in the exercise of his duty: see eg IW v City of Perth (1997) 191 CLR 1.
37 By the EOI Process here adopted, the Minister set out a commercial basis for approval of the right to explore for the State's coal reserves. The analysis of the deliberative process in these circumstances leads to the conclusion that the Minister involved himself in the providing of a right, benefit or privilege in a commercial setting. This involvement of the Minister was not only preparatory to the exercise of his power under s 13(4) of the Mining Act, but was part of the process of determining the successful applicant for an exploration licence in a commercial setting. It would seem (as the primary judge concluded) that this process was conducted on other occasions, where the State obtained hundreds of millions of dollars in revenue, obviously in trade or commerce. In undertaking the EOI Process, the Minister was engaging on a commercial basis with those who were invited to provide EOIs. Of course, each of the appellants were engaged in trade or commerce in seeking the consent of the Minister and the exploration licence.
38 As the primary judge observed, this "gave the State the opportunity to realise large sums of money through the EOI Process even if no coal was ever mined from any of the areas": see [108] of the reasons of the primary judge.
39 In terms of the definition of "services", there is at the very least the following right, benefit, or privilege being provided by the Minister in trade or commerce: the right to participate in the EOI Process, which involved applying for the Minister's consent leading to the grant of the necessary approvals for mining activities. Therefore, even on the approach of the appellants, we find that there is an "exclusionary provision" with the meaning of s 4D, and "competition" within the meaning of s 45(3) of the CC Act.
40 Similarly in relation to the cartel provisions, putting aside the separate argument raised by the appellants as to the operation of s 44ZZRD (to which we will come), the bids were in relation to the supply or acquisition of "services". The bidding occurred with the invitations to tender being put out on a commercial basis by the Minister on behalf of the State, and as set out in the EOI Process Documents with the view to maximise financial gain or revenue to the State.
41 We now turn to the Notices to consider their scope in light of the operation of the CC Act. In our view, the ambit of the phrase "the right to apply for the necessary approvals for mining activities" in the Notices is then clear, following upon the interpretation we have given to the word "services". In the circumstances of the Mining Act, and in the knowledge of what occurred in the EOI Process, the right to apply for the "necessary approvals" (plural), readily encompasses the seeking of the Minister's consent under s 13(4), the right to apply for the exploration licences, and the possible contractual right to seek the awarding of an exploration licence upon being the successful applicant.
42 We should interpolate that even if the specified services in the Notices do not encompass the possible contractual right conferred on the successful applicant in the EOI Process, this would not impact on our conclusion. Even if the language used in the Notices to describe the specified services was confined to both or either of the right to apply for the Minister's consent or the right to apply for the exploration licence, it would be sufficient to uphold the validity of the Notices. For the reasons we have given, both these rights arise in the context of the EOI Process, which is commercial in character.
43 The above reasoning would dispose of the appeal, other than dealing with the separate ground of appeal in relation to the cartel provisions of the CC Act. Before returning to this ground, we should make some observations on the definition of "services" as this was the subject of some debate.
44 As a preliminary observation, it is to be recalled that the process of construction of statutory provisions starts with the words of the statute, read in context: see, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. The task before us is to interpret the term "services" as it appears in the substantive provisions, relevantly s 45 and the cartel provisions, in light of the purpose and object of those provisions.
45 As stated in Thiess v Collector of Customs (2014) 250 CLR 664 at [22]-[23]:
[22] Statutory construction involves attribution of meaning to statutory text. As recently reiterated:
'"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text."
[23] Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that "the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation" is in that respect a particular statutory reflection of a general systemic principle. For:
"it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."
(citations omitted)
See also the comments of McHugh J in Kelly v R (2004) 218 CLR 216 at [103] in relation to the function of a definition not being to enact substantive law, but to aid in construing the statute.
46 In analysing the definition of "services", the primary judge considered its historical context in some detail. This was a useful analysis, although we are mindful that legislative history and extrinsic material cannot displace the statutory text, nor is their examination an end in itself: see Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39].
47 The definition of "services" was replaced in whole by the Trade Practices Amendment Act 1977 (Cth) ('1977 Act'), s 4G was renumbered as s 4H and the new s 4H did not contain a paragraph (d); s 4H is in the same form in the CC Act. As the primary judge usefully indicated, the differences between the 1977 Act definition of "services" and the 1974 Act definition are demonstrated by the markings below, struck through are words which no longer appear, underlining is an addition to the language of the 1974 Act:
services includes, without limiting the generality of that expression, the rights or benefits that are to be provided under - any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under -
(a) a contract for or in relation to -
(i) the performance of work (including work of a professional nature but not including work under a contract of service), whether with or without the supply of goods;
(ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance; or
(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, or any other contract for or in relation to the loan of moneys; or
(d) any contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service;
48 Adopting the nomenclature of the primary judge, we will call the words after "includes" up to "in trade or commerce" the "Rights Extension" and we will call the words after "without limiting the generality of the foregoing" the "Revised Contracts Extension".
49 There was some criticism made by the appellant of the primary judge for failing to take into consideration the differences in the Swanson Committee Report (referred to by the primary judge at [61]), and the subsequent legislation that was introduced into Parliament in 1976, and after the proroguing of Parliament, introduced again in 1977. Undoubtedly there were differences in the terms of the legislation introduced into Parliament following upon the Swanson Committee Report, both in 1976 and 1977, but these differences do not affect the conclusion of the primary judge at [71] and [72]:
[71] There is nothing in the Swanson Committee Report or in the explanatory memorandum for either of the 1976 Bill or the 1977 Act which suggests that the definition of "services" adopted in the 1977 Act primarily by the inclusion of the Rights Extension was intended to be limiting of the definition in the 1974 Act. To the contrary, the intention appears to have been to ensure that the meaning was extended to include interests in land to the extent constitutionally possible, in line with the express provisions relating to leases and licences in ss 4H and 47(8) as well as s 53A.
[72] The amendments contained in the Revised Contracts Extension do not materially alter the Contracts Extension. I consider that the Revised Contracts Extension extends the ordinary meaning of "services" and that there was no intention to limit its scope by the adoption of the Rights Extension.
50 The appellants also relied heavily on the argument that the word "includes" was exhaustive or exclusive, so as to limit the operation of the definition "services" to situations where the supplier of the services is in trade or commerce. We do not accept that argument for the following reasons.
51 Throughout the different definitions in s 4(1) the draftsperson has been mindful of the distinction between "includes" and "means". Usually a definition that uses the word "includes" is not intended to be exhaustive. Merely because a definition is expressed to "include" a number of items that fall within the ordinary meaning of a word does not mean the definition is necessarily exhaustive: see Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (In Liq) (1978) 138 CLR 210, 216. Where, as in s 4(1), a pattern has been established as to the use of "includes" and "means", the Court would normally accept that distinction as being deliberately adopted: see Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 37 FLR 508, 510-11.
52 Looking at the text of the definition "services" there is no reason to conclude the term "includes" is exhaustive. Whilst it includes services that would come within the ordinary meaning of that word, it also includes services not within the ordinary meaning (eg rights or interests in relation to real or personal property). The historical context described by the primary judge confirms that the term "includes" is not meant to be exhaustive.
53 Therefore, in interpreting the term "services", unless a contrary intention appears in the substantive provisions being applied, the ordinary meaning of the term "services" is to be adopted along with the specified services in the definition itself.
54 In Adamson v New South Wales Rugby League Limited (1991) 31 FCR 242, 262, Wilcox J correctly observed that:
As a reference to any standard dictionary will show, although the word "services" has a wide application, it imports always the notion of some assistance or accommodation being made available by one person to another.
55 In any event, the phrase "provided, granted or conferred" is used in connection with "in trade or commerce" in the Rights Extension, to indicate that the relationship or dealing as a whole must be of a trading or commercial nature, and not that the right, benefit, privilege or facility be a trading or commercial activity of the supplier. If focus only on the supplier were intended, then it would have been appropriate to use a formulation which includes the term "supplier" or "supply".
56 Further, the substantive provisions do not compel a conclusion that the relevant commercial activities are those of the provider of "services" considered in isolation from the acquirer. In fact, they indicate the contrary intention. We agree with the ACCC's submission before the primary judge that such a requirement would be artificial and would undermine rather than promote the object of the legislation and give it an interpretation "perilously close to capricious". For instance, in s 4D(1)(b), the definition of "exclusionary provision" indicates that a provision of a contract, arrangement or understanding is an exclusionary provision if it prevents, restricts or limits the acquisition of services as well as the supply of those services - here, the relevant competition is for the acquisition of the services. The proscription is not in the definition of "services"; it is in s 45 taken with s 4D, which relevantly relates to conduct of an acquirer of services. Similarly, the acquisition of services is a relevant test under s 44ZZRD in relation to the cartel provisions.
57 Finally, in considering the term "services" the primary judge also considered the Revised Contract Extension. We do not need to deal with that issue having regard to the approach we have taken on this appeal.
58 Therefore, the Notices are valid for all of the foregoing reasons.
59 The primary judge, after deciding to dismiss the application because her Honour was not satisfied that the specified services in the Notices were not "services" as defined, did not regard it necessary to consider the other challenge to the Notices in connection with the cartel provisions of the CC Act.
60 The primary judge stated at [121]:
The applicants did not otherwise challenge the Notices relating to a possible contravention of s 45. The ACCC suggests that it is not necessary for me to deal with the issue of whether the Notices disclose possible contravention of ss 44ZZRG and 44ZZRK if the applicants fail in their challenge based on the definition of "services". I accept this submission because it is apparent from the face of the Notices that the alleged contraventions under s 45 and the cartel conduct provisions rely on the circumstances alleged in paragraph 1 of the Notices so that the applicants would be required to provide the same material in response to the "cartel conduct" and the s 45 "matters" set out in the Notices. This is not a strike out application and it should not be treated as one.
61 We see force in this approach. Despite the contention of the appellants to the contrary, the same material would be required to be provided in response to the "cartel conduct" and to s 45 matters, even in relation to the intent or motives of the relevant actors.
62 However, we find that the other ground of challenge to the Notices relating to the cartel provisions can be disposed of readily in this appeal.
63 The focus of our attention must be upon the text of s 44ZZRD(3)(c)(i) and (iii).
64 The argument of the appellants is that the words "ensuring" and "in the event of" in the relevant provisions have a temporal element: the provisions only apply if the bid is made after a contract, arrangement or understanding is formed. Further, the CC Act involves the notion of bidding or proceeding with a bid, it being submitted that there was no "request" for bids after the contract, arrangement or understanding came into existence. It is to be recalled that the Notices refer to the contract, arrangement or understanding being made on or around 5 June 2009. The relevant invitations of EOI occurred earlier.
65 We see nothing in the text or context of s 44ZZRD, or its purpose or object that would restrict the operation of s 44ZZRD(3)(c)(i) or (iii) to instances where the request for bids is made after the contact, arrangement or understanding is made or arrived at by the parties.
66 The operation of s 44ZZRD(3) must be read in the context of s 44ZZRD, particularly s 44ZZRD(1). The "purpose condition" set out in s 44ZZRD(2) must be satisfied for there to be a "cartel provision" referred to in s 44ZZRD(1). If a contractual provision has the purpose of (directly or indirectly) ensuring that in the event of a request for bids in relation to the supply or acquisition of services certain things occur (such as one or more parties not bidding or proceeding with a bid) then the "purpose condition" is satisfied.
67 Section 44ZZRD(3) is directed to the effect of the contract, arrangement or understanding reached by the parties in relation to a bid. This will depend upon the contract, arrangement or understanding, and the nature of the bid. A bid may not necessarily be a one-off event, and may be seen as a continuing tendering process; for example, if there is an opportunity to withdraw a tender or alter its terms after the initial bid is made by a party.
68 The phrase "ensuring that in the event of a request for bids" in s 44ZZRD(3)(c) does not need to have any temporal connotation to make grammatical sense, and there is no purpose in so restricting the phrase's operation. There is no logical reason to differentiate between the situations where the bid is made before or after the contract, arrangement or understanding is formed.
69 In the event that s 44ZZRD(3)(c)(i) does not apply, s 44ZZRD(3)(c)(iii) could apply in the circumstances alleged in the Notices. The provisions of the CAU may be said to have the purpose of ensuring that in the circumstances of (or in the event of) there having been a request for a bid directed to two or more parties to the CAU, one party (for instance) then agrees not to proceed until the later prescribed point of time. This is the scenario sought to be investigated by the ACCC in the Notices, as particularly set out in paragraph 1 of the Notices. This is a scenario that fits within the text and purpose of s 44ZZRD(3)(c)(iii).
70 Therefore, this further ground of invalidity of the Notices cannot be sustained.