Victorian WorkCover Authority v Andrews

"It is hardly necessary to say that when you have ... an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification".' 38 All parties (including the Attorney-General for Victoria who intervened) submitted to me that the proviso in relation to "State insurance" should be treated in exactly the same way as that in relation to "State banking". In Re Wakim Ex parte McNally (1999) 198 CLR 511 Gummow and Hayne JJ at 581 [124] accepted that Commonwealth legislative powers should be limited in relation to "State insurance" in the same way as in relation to "State banking". In my view that is the correct approach. 39 The proviso in relation to "State banking" was specifically inserted into the draft Constitution at the request of the Legislative Assemblies of New South Wales and Victoria and the Legislative Councils of Tasmania and South Australia (Record of the Convention Debates - Sydney Session, 1897 at 1074). Some of those legislative bodies suggested that the proviso refer to "State banks" rather than "State banking", but it would appear that the two terms were treated by those at the conventions as being interchangeable (see at 1074-1075). The purpose of the proviso was so that each State could determine for itself whether and on what terms it wished to "advance the moneys of the State" (see Barton, Record of the Convention Debates - Sydney Session, 1897 at 1074; see also Glynn at 1075), subject to the banking business being conducted only within the State. 40 Nevertheless, there may be some uncertainty as to just what was meant by the term "State banking": see Glynn, Record of the Convention Debates - Sydney Session, 1897 at 1075. As at federation none of the colonies had a "central bank" performing those functions which in England were performed by the Bank of England. All of the colonies obtained such credit as they required from or through the issue of securities usually to the public and usually managed by private banks. None of the colonies issued their own paper money. Private banks issued paper money, except in Queensland where after 1893 paper money could not be circulated without a government stamp (see Treasury Notes Act, 1893 (Qld); Collier Banking in Australia (1934) at 23). It would not appear that it was in active contemplation at federation that any of the colonies would establish a central bank (although see the Report of the Victorian Royal Commission on State Banking (Victorian Parliamentary Papers, 1895 Vol 4) ("Banking Commission Report") discussed below), but some attempt was made in some colonies in the 1890s to better secure the value of paper money (for example, in New South Wales paper money issued by the private banks was guaranteed by the government pursuant to the Bank Issue Act, 1893 (NSW) and see the recommendations of the Banking Conference in Sydney in June, 1895 reported at 461 of Banking Commission Report). In any event, it is reasonably clear that "State banking" in the Constitution was not intended to refer to the operation of a central bank. 41 It is also clear that the term "State banking" did not refer to the activities of the State as a customer of a bank, whether a central bank or a private bank. 42 It seems reasonably clear that the term "State banking" referred to the business or activity conducted by the State (or colony) as a banker. A number of the Australian colonies did operate "government" banks. There would appear to have been three relatively distinct types. One was the post office banks. The first of these was established in Western Australia in 1863 (see Post Office Savings Bank 1863 (WA)), but soon they existed in all of the Australian colonies except South Australia. In Victoria, for example, there was a Post Office Savings Bank established pursuant to Part IV of the Post Office Statute, 1866 (Vic). Deposits were under the control of the Victorian Treasury and the Bank was operated in accordance with government direction. 43 The second distinct type was the government savings bank. Like the post office banks the purpose of the savings banks was to provide a secure repository for the savings of ordinary members of the public. However, they were intended to be more "commercial" than the post office banks. They operated their own accounts, were not government guaranteed and operated (more or less) independent of political control. The first of these was the Savings Bank of New South Wales which was established (or, more correctly re-constituted) in 1832 (see 2 William IV; No 13 (NSW)). The Governor of NSW was President of the Bank. He had power to appoint the trustees. The deposits were initially paid into State Treasury (see ss 6 and 7), but this requirement would seem to have been removed in 1834 (see 5 William IV; No 16 (NSW)). After that time the Bank (and a similar bank subsequently established in Port Phillip: see 5 Vict; No 5 (NSW)) would seem to have operated on its own accounts without direct financial support (including any express statutory guarantee) from the colonial Treasury: contrast Commissioners of the State Savings Bank of Victoria v Permewan Wright & Co Ltd (1914) 19 CLR 457 (Permewan Wright)at 461. It should be noted that outside of the major towns and cities of NSW the Savings Bank operated through post offices which acted as its agents (a practice that continued after the post offices were transferred to the Commonwealth after federation: see Opinions of the Attorneys-General of the Commonwealth of Australia, Vol 1 1901-1914 (1981) at 181. 44 A savings bank, similar to that in New South Wales, also existed in South Australia. The Savings Bank Act, 1875 (SA) constituted (or more correctly, reconstituted) the Savings Bank of South Australia as a statutory authority comprising trustees appointed by the Governor, but made no provision (until an amendment in 1912) for the Bank to be funded or guaranteed by the State Treasury: the history of the bank is discussed by Isaacs and Rich JJ in Bank Officials' Assoc (SA Branch) v Savings Bank of South Australia (1923) 32 CLR 276 at 288-289. 45 In Victoria separate savings banks were established in various regional areas by the Savings Banks Act (1890). These banks were not under government control. Like those in New South Wales and South Australia initially they were not government guaranteed, although a guarantee was provided administratively soon after. By the Savings Banks Amendment Act of 1896 the various savings banks and the post office banks in Victoria were amalgamated into the body corporate called the Commissioners of the Savings Bank of Victoria. Deposits made with the Commissioners were guaranteed by the colonial government (the history of the Commissioners is discussed by Griffiths CJ in Permewan Wright at 461-463). 46 The third sort of bank was a trading bank established to use government moneys and/or government credit for the purpose of encouraging development, particularly in rural areas. In 1894 Western Australia established an Agricultural Bank (see Agricultural Bank Act, 1894 (WA)) the capital of which was provided by the colony, or guaranteed by it (see ss 3, 5-9). In 1896 South Australia established a "State Bank" (see State Advances Act, 1895 (SA)) which was government guaranteed and funded by the government Treasury. In contrast to its Savings Bank, which was treated as an independent repository of deposits, the State Bank was used as a vehicle of government policy, particularly in relation to rural lending. 47 At and around federation other colonies were contemplating establishing similar banks to the State Bank in South Australia, largely in response to the banking and financial crisis that began in the early 1890s. Indeed, after federation the Savings Bank of NSW was re-constituted and eventually became the Rural Bank of NSW - a bank which held its property on behalf of the State and which was guaranteed by the State: see Rural Bank of NSW v Hayes (1951) 84 CLR 140 at 146-151. The Queensland Agricultural Bank was established in 1902 (Agricultural Bank Act 1901 (Qld)) and the Agricultural Bank of Tasmania in 1907 (see State Advances Act 1907 (Tas) and Glenorchy v Agricultural Bank (1936) 31 Tas LR 75). Each of these was similar in form to the South Australian State Bank. 48 It is not clear that as at the date of federation all of these three types of government banks were all described as "State banking". In particular it is not clear that government savings banks without government funding or guarantee (such as that in NSW or in South Australia) were considered to fall within the term "State banking" (contrast Starke J in Melbourne Corporationat 69 and contrast Quick & Garran The Annotated Constitution of the Australian Commonwealth (1901) at 577-578). 49 At the 1891 Constitutional Convention it seems to have been accepted that the term "State banking" included the "post office" savings banks (see Record of the Convention Debates - Sydney, 1891 at 685). In the Banking Commission Report (at vi) the Commissioners treated the Victorian Post Office Bank as a "government institution", but only treated the Savings Bank in Victoria as being "practically" a government institution after their deposits were guaranteed by the Treasurer and they were subject to government instruction. The Report described the new bank, which it recommended should be formed from the merger of the Post Office Bank and the Savings Bank, as a "State Bank" (see at vii). The Commission proposed that that bank should have a government guarantee and be subject to direction. However, it also proposed that the Bank have the role and function of a central bank - the exclusive responsibility for issue of paper money, the role of managing government borrowings and the role of holding the "trust" accounts of the government (see at viii, xiv-xv contrast xix-xxi). The proposal to establish a central bank was not adopted. 50 At the later Conventions in 1897 and 1898 the term "State banking" seems to have been used to refer to banking conducted by a State government and either funded by it or guaranteed by it. In particular, the trading bank established in South Australia - the State Bank - was clearly understood as falling within the term (see Isaacs and Cockburn, Record of the Convention Debates - Adelaide Session, 1897 at 778). So too, did the Agricultural Bank in Western Australia: see Forrest, Record of the Convention Debates - Sydney Session 1897 at 1074. It is not clear, however, that the Savings Bank of South Australia was similarly thought to do so at that time. 51 Insofar as "State banking" is concerned the issue now is largely of academic interest as none of the States any longer operate a "government bank". However, a number of State governments still operate insurance businesses, particularly in relation to workers compensation, compulsory motor vehicle insurance and so forth. A number of these government insurance businesses no longer have an express government guarantee. They are expected not only to meet their costs and expenses through their "commercial" activities, but in some cases are expected to pay an annual "dividend" to the relevant State government. 52 The reason for inserting the proviso in relation to "State insurance" in s 51(xiv) of the Commonwealth Constitution would seem to have been the same as for "State banking". As at federation none of the Australian colonial governments were carrying on an insurance business, but the New Zealand government had established a Government Life Assurance business in 1869 which was guaranteed by the New Zealand government (see Black CJ in Aust Health Insurance Assoc v Esso (1993) 41 FCR 450 (Esso) at 457; Mascarenhas Public Enterprise in New Zealand (1982) at 36-37 and see O'Connor and Glynn, Record of the Convention Debates - Adelaide Session, 1897 at 780). The purpose of the proviso in relation to "State insurance" was so that each Australian State could determine for itself whether and on what terms it wished to establish its own insurance businesses (as New Zealand had done), providing that the business was only conducted within the State. Presumably it was also to accommodate New Zealand if that colony decided to join the federation. 53 As no relevant distinction can be drawn between the provisos in the banking power and the insurance power, then it follows that the reasoning in Bourke quoted above is equally applicable to the insurance power. In my view the proviso in relation to "State insurance" imposes a restriction upon Commonwealth legislative power generally rather than only a limitation upon the ambit of s. 51(xiv). Even if the relevant provisions of the SRC Act could be supported by a power other than the insurance power (see above), the qualification in relation to "State insurance" would also be applicable to that power. 54 There was no dispute before me that the business conducted by the applicant is "State insurance" for the purposes of s 51(xiv). The Minister expressly conceded as much. I proceed on the basis that the concession was properly made. Given the statutory functions of the applicant and its structure and (most importantly) its relationship to the Victorian Government, in my view the applicant is part of "the State" of Victoria for the purposes of the Commonwealth Constitution: see State Bank of NSW v Commonwealth Bank (1986) 161 CLR 639 at 648-652; SGH Ltd v FCT (2002) 210 CLR 51 (SGH) at 67-68, 94-95, 103. 55 In my view this is so whether or not the operations of the applicant were funded or otherwise guaranteed by the Victorian Treasury: contrast the Queensland State Government Insurance Office considered in SGH at 70. The applicant is not funded or even expressly guaranteed from "State" resources, but is funded from premiums. Although this may not be critical to the question whether the applicant is "the State", it may be more important to the question whether the business conducted by it is "State insurance". As discussed above, this may have been a distinguishing feature of "State banking" as that term was understood at federation. I also note that Black CJ would seem to have identified this as a distinguishing feature of "State insurance" in Esso at 456-457. 56 On the other hand, once the applicant has been characterised as part of the State then it may be that premium income, once received by the applicant, can be treated as "State resources" for this purpose (assuming that it is necessary to do so), even though it is paid into the Fund and can only be used for the purposes set out in the legislation. It may be sufficient that the business can be considered as insurance business carried on by the State: see Melbourne Corporation at 52, 65, 86. 57 Given the concessions that have been made it is unnecessary to consider this matter in any greater detail. I proceed on the basis that the relevant activities of the applicant comprise "State insurance" and that the general powers of the Commonwealth Parliament are qualified in relation to "State insurance". 58 The second step in the applicant's argument is that ss 104(1), 108(1) and 108A(7)(a) of the SRC Act is a law which comes within the qualification in relation to "State insurance" and is consequently beyond Commonwealth legislative power. The applicant says that the relevant provisions "touch and concern" State insurance in a way that is not merely "insubstantial, tenuous or distant" and is consequently not a law "with respect to" "insurance other than State insurance". 59 This requires the interpretation of the proviso. There is no dispute that the relevant test is that stated by the High Court in Bourke at 288-289: 'The only satisfactory solution to this problem is to accept that there is no exclusive State power to make laws with respect to State banking. But the words of s. 51(xiii) still require that, when the Commonwealth enacts a law which can be characterized as a law with respect to banking, that law does not touch or concern State banking, except to the extent that any interference with State banking is so incidental as not to affect the character of the law as one with respect to banking other than State banking: see Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at p 7. Put another way, the connexion with State banking must be "so insubstantial, tenuous or distant" that the law cannot be regarded as one with respect to State banking: Melbourne Corporation (1947) 74 CLR at p 79. Of course, these are the tests used in the familiar process of characterization. But they are employed in the context of an embracing Commonwealth power expressed as one to make laws with respect to banking other than State banking. They are not employed in the context of an exclusive State legislative power with respect to State banking. So, if a law is not one with respect to banking, it is not subject to a restriction that it must not touch or concern State banking.

"does not apply except with respect to the ground actually covered by par. (xxxi) of s. 51. For example, no one would doubt that, under the power to make laws with respect to bankruptcy, property of the bankrupt may be sequestrated and property of others which has been left in his order and disposition may be vested in the Official Receiver and that s. 51(xxxi) has no bearing on the matter. At the same time, if a law was made under which a piece of land was acquired for a Bankruptcy Office, s. 51(xxxi) would govern the legislation and not s. 51(xvii). It must be borne in mind that s. 51(xxxi) confers a legislative power and it is that power only which is subject to the condition that the acquisitions provided for must be on just terms".' 60 The applicant (supported by the Attorney-General for Victoria who intervened on the constitutional question) says that the relevant provisions of the SRC Act can be characterised as a "law with respect to insurance". This may be accepted. 61 The applicant then says that the law "touches and concerns State insurance". 62 Both the applicant and the Attorney-General for Victoria conceded that the financial impact of a Commonwealth law upon the business of the applicant was not sufficient in itself to establish that the law relevantly "touches and concerns" State insurance (contrast the use of the word "affect" by Dixon J in Melbourne Corporation at 78). In my view this concession was plainly correct. The Commonwealth plainly has the power to regulate insurance "other than State insurance". For this purpose undoubtedly it could enact legislation relating generally to contracts of insurance. Undoubtedly it could enact legislation to license and regulate insurers. All of that legislation could have significant effects in the market place and consequently could have significant financial consequences upon "State insurance". It could hardly be doubted, however, that such legislation would be valid, providing that it did not purport to bind "State insurance" or otherwise directly apply to it. In my view legislation which merely has financial consequences upon "State insurance" does not limit the freedom of a State to determine for itself whether and on what terms it wishes to "advance the moneys of the State" for the purpose of carrying on an insurance business. Properly considered, such legislation does not "touch and concern State insurance". Notwithstanding the proviso, the States "must accept [the effects of federal law] as part of the system enjoyed by the whole community" (Bank of NSW v Commonwealth (1948) 76 CLR 1 (Bank of NSW) at 337; Melbourne Corporation at 84-85 per Dixon J) 63 The applicant says that the SRC Act does not simply have a financial effect upon the applicant. The applicant puts two arguments in this regard. First, in its written submissions the applicant argued that the SRC Act "interferes with and constrains the scheme of State insurance". This argument seems to me to treat "State insurance" as denoting or at least including the policies and purposes intended to be achieved by the Victorian Parliament under the AC Act and the WorkCover Act (what is described in the submissions as "the scheme of State insurance"). I think that this involves a misunderstanding of the words "State insurance" in s 51(xiv) of the Commonwealth Constitution. What is protected by the proviso is the decision by the Victorian government about whether and how it will carry on an insurance business, the contractual terms upon which it chooses to do so and the business actually conducted by the State. But the proviso does not afford protection to the general "scheme" of workers compensation reflected in the AC Act or the WorkCover Act. 64 The second argument put by the applicant is that "insurance" consists of or includes indemnities granted by or pursuant to legislation: see Esso at 454-455, 493. Consequently, it is said, the compulsory indemnity arrangements upon Optus and the Toll Companies imposed under the AC Act and the WorkCover Act are "insurance". As the applicant is relevantly "the State" those arrangements involve "State insurance". The effect of s 108A(7)(a) of the SRC Act is to interfere with those indemnity arrangements. Because the Commonwealth law directly affects the indemnity arrangements under the AC Act and the WorkCover Act it "touches and concerns" State insurance and is invalid. 65 The Attorney-General for Victoria put an alternative submission, or at least put the submission in a different way. The Attorney-General argued that the test proposed in Bourke as set out above has the effect that the Commonwealth cannot enact a law which can be characterised as a law on "State insurance". Section 108A(7)(a) of the SRC Act can be so characterised. It is a law which "touches and concerns" State insurance, being a law "with respect to the conduct of customers of the [State insurer] in their capacity as such customers" (see Latham CJ in Melbourne Corporation at 52). As the Victorian Solicitor General put it, if the Commonwealth had legislative power over "State insurance" that power would have supported the enactment of s 108A(7)(a) of the SRC Act: see Melbourne Corporation at 49-50, 64, 79-80, 89; contrast Bank of NSW at 197-201. As the characterisation test for the proviso was the same test as that for the grant of a legislative power, it necessarily followed that s 108A(7)(a) fell within the proviso and was invalid. 66 The effect of these arguments, as I understand them, is that any Commonwealth law which directly affects the relationship between a State insurer and someone indemnified by that State insurer is invalid. This would include an indemnity provided under a valid State Act, at least where the indemnity could be described as "insurance". The Attorney-General for Victoria limited his argument to those circumstances where the indemnity was mandatory. 67 The width of these submissions can best be highlighted by giving some examples. Assume that Victoria passed an Act prohibiting anyone from offering life insurance in that State except the State insurer. The Commonwealth passed an Act establishing a Commonwealth insurer and authorising it to offer life insurance to defence personnel, Commonwealth public servants and Commonwealth pensioners including in Victoria. If the submissions put by the applicant and by the Victorian Attorney-General were correct then the Commonwealth law would be invalid, save only for some argument that the State law was invalid. Similarly, assume that Victoria passed a Landowners Liability Act creating a statutory liability upon landowners towards entrants onto their land and requiring landowners to insure with a State government insurer against such liability. The Commonwealth legislated to licence various insurers to offer insurance products throughout Australia, including insurance against any statutory liability imposed against landowners. The Commonwealth legislation specifically provided a regime for "double insurance" the effect of which was that a person holding an insurance policy was not required to insure again against the same risk and that, if they did, the insured could not recover twice for the same damage. Again, if the submissions of the applicant and the Attorney-General were correct then the Commonwealth legislation would be invalid at least to the extent that it purported to exempt Victorians from the requirement to insure with the State insurer. 68 The Minister, on the other hand, argued that s 108A(7)(a) of the SRC Act did not directly concern the relationship between the State insurer and its "customer". Rather the provision operated at a more fundamental level of permitting those required under the State scheme to be "customers" to exercise a choice as to whether or not to have that status. It did not directly interfere with the relationship of customer and insurer, but provided a mechanism by which a person could choose to be insured or not. The Commonwealth Solicitor General submitted that s 108A(7)(a) of the SRC Act was a law dealing with the general "milieu" of insurance, not a law dealing with State insurance. 69 The difference between these submissions is fundamentally a difference as to the meaning and extent of the proviso and, in that context, a difference as to the proper interpretation of what the High Court said in Bourke as set out in par 59 above. That is understandable. It is not altogether clear what that quotation in Bourke means. However, it does not seem to me that it can mean what the applicant and the Attorney-General for Victoria submitted that it means. It seems to me that: (a) it is clear that the High Court has rejected any test based upon an exclusive State power (see Bourke at 288). This being the case, the High Court could not have proposed a test for the proviso of whether the relevant law can be characterised as a "law with respect to State banking". Such a test would have been a test of an exclusive State power. (b) in any event a test for the proviso of whether the relevant law can be characterised as a "law with respect to State banking" would be contrary to principle. Commonwealth legislative powers are read broadly because the conferral of such power is "with respect to" the relevant subject matter and because of the general principles of interpretation of a written Constitution: see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 149-150; Bank of NSW at 332-334. To apply the same test to a proviso is wrong in principle. It would have the effect (as was argued in this case) that the Victorian Parliament, by creating a mandatory insurance scheme involving a State insurer, could effectively exclude all Commonwealth legislation on insurance in that State, save only for any limitations upon the powers of the Victorian Parliament (such as those derived from s 92 of the Commonwealth Constitution or from the principles discussed in Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410). Not only does this treat the proviso as an exclusive power, it treats it as a power which is capable of largely if not entirely abrogating the primary grant. There is nothing in the mischief to which the proviso was directed or in the terms of the grant or in the general principles of constitutional interpretation which suggest that that consequence properly reflects the meaning of s 51(xiv) of the Commonwealth Constitution. (c) the issue before the Court in Bourke was not solely how to interpret the proviso, but also how to apply the proviso when there were other legislative powers which might support the relevant law. In my view the comments in Bourke in respect of characterisation need to be understood in that context. (d) properly considered, what Bourke holds is that: a. In light of the proviso, the only power that the Commonwealth has to legislate "with respect to" State banking is the banking power in s 51(xiii) of the Commonwealth Constitution. Consequently if the law can be characterised as a law with respect to "State banking" then the only power upon which the Commonwealth can rely to support that law is the "banking" power. This is similar to the approach taken in relation to the acquisition power in s 51(xxxi) of the Constitution: see Bourke at 288-289. b. When the law is so characterised as a law with respect to State banking, the question is whether the law falls within the "embracing Commonwealth power" (see Bourke at 286 and 289) being a law "with respect to banking other than State banking". c. "State banking" means the "business of banking conducted by a bank owned or controlled by a State" (see Bourke at 284). (e) the same analysis is applicable to "State insurance". 70 So understood, the Commonwealth has legislative power pursuant to s 51(xiv) of the Commonwealth Constitution to legislate generally in relation to insurance "other than State insurance". As was pointed out although (in relation to the banking power) by Latham CJ in Melbourne Corporation this means that the Commonwealth cannot legislate so as to affect directly the internal organisation of a State insurer. Nor can it legislate so as to affect directly the terms and conditions on which a State insurer offers insurance. Nor can it legislate so as to prevent directly persons entering into insurance arrangements with a State insurer, at least so long as the relevant "State insurance" does not extend beyond the limits of the relevant State. However, where the law is a general law that incidentally affects a State insurer (e.g. it affects the market place in which the State insurer operates) then the law does not fall within the proviso. It is clear from the mischief to which the proviso was directed, that what was envisaged was the continuing capacity of the State insurance business to operate in a commercial marketplace. The use of the words "State insurance business" to describe the meaning of "State insurance" needs to be understood in that context: see NT Power Generation Pty Ltd v Power and Water Authority (2004) 79 ALJR 1 at 14 and see Melbourne Corporation at 51-52, 86; Bank of NSW at 193-194 contrast at 331. There is no basis for treating the words "State insurance" as extending to State laws requiring persons to insure with a State insurer or to State laws conferring an economic monopoly on a State insurer. In my view such State laws are not themselves "State insurance". 71 Properly analysed, I do not think that the relevant provisions of the SRC Act have any effect on "State insurance" so understood. What they affect is the mandatory requirement that employers in Victoria be insured in relation to workers compensation liability, unless they are authorised to be "self insured". In my view that requirement is not "State insurance" even if the designated insurer is a "State insurer". 72 The Commonwealth Minister submitted that "a State cannot enlarge the ambit of the words "State insurance" (or "State banking") by the purported conferral of a monopoly" on the State authority. I would prefer to say that a Commonwealth law which is inconsistent with State legislation only in that it removes restrictions or obligations on those within the market place which restrictions or obligations have been imposed by State legislation is not a law "touching or concerning" State insurance merely by reason of that inconsistency. 73 There is nothing in the SRC Act which (in form or substance) prevents a person holding a licence under that Act from insuring their liabilities under the SRC Act whether with a State insurer or anyone else. Nor is there any licence condition imposed upon Optus which would have that effect. It may be that even if there were such a restriction the SRC Act and/or the licence would still be valid (an issue not argued and which I do not need to decide), but in the absence of any such restriction I am unable to see how the SRC Act relevantly "touches or concerns" State insurance. 74 Certainly there is nothing in the SRC Act which would seem to me to be "directed" against "State insurance", properly understood. The discrimen of the relevant provisions of the SRC Act is not "State insurance". Whilst s 108A(7)(a) of the SRC Act does provide an exception from the mandatory insurance scheme in the AC Act and the WorkCover Act, for the reasons already discussed that mandatory scheme is not itself "State insurance". Indeed, in at least some other States and Territories where there are mandatory requirements for workers compensation insurance, retail insurance is provided by private sector insurers, rather than by "State insurance": see Productivity Commission Inquiry Report National Workers' Compensation and Occupational Health and Safety Frameworks (2004) at 311-315. 75 Consequently I do not think that the relevant provisions of the SRC Act are invalid for any lack of legislative power in the Commonwealth Parliament. 76 For these reasons the application must be dismissed.

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