Committee of Direction of Fruit Marketing v Australian Postal Commission
(1980) 144 CLR 577[1980] HCA 23
(Judgment by: Gibbs J)
Between: Committee of Direction of Fruit Marketing
And: Australian Postal Commission
Judges:
Barwick CJ
Gibbs JStephen J
Mason J
Wilson J
Subject References:
Posts and Telegraphs
Judgment date: 5 August 1980
Canberra
Judgment by:
Gibbs J
1. The sole question for decision on this appeal is whether the appellant, The Committee of Direction of fruit Marketing ("the C.O.D."), a body corporate established by The Fruit Marketing Organisation Acts 1923 to 1973 (Q.), as amended ("the Act"), is "an authority of... a State" within the meaning of by-law 118 of the by-laws made under the Postal Services Act 1975 (Cth), as amended. Division 3 of Pt V of the by-laws made under that Act makes provision for the registration of publications for the purpose of allowing copies of registered publications to be sent through the post at reduced rates. By-law 118, which appears in that Division, provides, inter alia, as follows:
"A publication is eligible for registration as a registered publication if
- (a)
- its proprietor is not the Commonwealth, a State or an authority of the Commonwealth or of a State".
A delegate of the Australian Postal Commission has decided that a publication known as Queensland Fruit and Vegetable News, of which the C.O.D. is the proprietor, is not eligible for registration as a registered publication on the ground that the C.O.D. is an authority of the State of Queensland within by-law 118 (a). An application to review this decision was dismissed by the Administrative Appeals Tribunal, and the decision of that Tribunal was affirmed on appeal to the Federal Court. (at p580)
2. The word "authority", in the sense in which it is used in by-law 118, simply means "a person or body exercising power or command": see Federal Commissioner of Taxation v. Silverton Tramway Co. Ltd. (1953) 88 CLR 559 , at p 565. It will be unnecessary in what I am about to say to discuss the position of an individual person who is an authority. The expression "authority of a State" refers to a body which exercises power derived from or delegated by the State, but the fact that a body is established under State law and possesses power conferred upon it by State law will not necessarily mean that the body is an authority of a State. For example, a private company, such as a gas supply company, which provides a public service for profit, may be set up under the company laws of a State, and may be given special statutory powers to enable it to carry on its undertaking, but it does not thereby become an authority of a State. The words "authority of a State" naturally mean a body which is given by the State the power to direct or control the affairs of others on behalf of the State - i.e., for the purposes of and in the interests of the community or some section of it. In some cases it may be decisive that the body concerned is given exceptional powers of a kind not ordinarily possessed by an individual or a company, and that those powers are intended to be exercised for a purpose that would ordinarily be regarded as a purpose of government. On the other hand, in some cases it may be decisive that the body is conducted in the interest and for the profit of its members. In all cases, however, it is necessary to have regard to all the relevant circumstances in order to determine the character of the body in question. In reaching these conclusions as to the meaning and effect of the by-law I have been much assisted by the cases which have discussed the meaning of the expression "public authority" in other statutes, in particular Federal Commissioner of Taxation v. Silverton Tramway Co. Ltd. (1953) 88 CLR, at pp 565-566, 567-568, 570-571 and Western Australian Turf Club v. Federal Commissioner of Taxation (1978) 139 CLR 288 , at pp 292, 296-298, 309-312 and by the one case where the meaning of the words "an authority of the State" (in the Patents Act 1952 (Cth)) was considered: General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 , at pp 132-134. (at p581)
3. The provisions of the Act which define the powers and functions of the C.O.D. have been fully discussed in the judgment of the Administrative Appeals Tribunal and the Federal Court, and it is unnecessary for me to set them out in full. The Act establishes an organization for the marketing of Queensland fruit, and the C.O.D. forms part of that organization. The C.O.D. has power, under s. 7, to give directions which in effect enable it completely to control, and indeed to monopolize, the marketing of fruit. The section makes provision for the taking of a poll of growers of the fruit to which the direction relates, and if a poll is taken the direction shall not be given unless three fifths of the votes polled are in favour of it. Once the direction takes effect it is an offence to fail to comply with it (s. 7 (5)).
The C.O.D. has power to impose levies on any fruit marketed (s. 6 (5) (vii)) and, if authorized by a regulation, on fruit growers, either generally or on sections of industries or in particular districts (s. 15 (1) (vi)). Under the Committee of Direction Levy Regulations of 1973, as amended, the C.O.D. is empowered to make levies on growers of fruit or vegetables in a wide variety of cases. The amount to be levied is prescribed by the regulations, and the regulations state how the moneys raised shall be expended - in most cases they are to be used in the general interest of the relevant section of the fruit growing industry as directed by the relevant sectional group committee. The regulations make it an offence to fail to pay a levy. Further powers to make levies are conferred by The Primary Producers' Organisation and Marketing Act of 1926 (Q.), as amended, s. 29. Under s. 7A of the Act, if a poll of the growers concerned is taken and three fifths vote in favour of the making of an Order in Council, the Governor in Council may make an Order in Council giving the C.O.D. powers to acquire fruit compulsorily. By s. 8 the C.O.D. is given wide powers to enable it to perform its functions, including, by par. (viii) of sub-s. 1, the power
"To prohibit or regulate the use and management of fruit stalls at railway stations and fruit-growers' retail shops; to use and manage any of these in the course of marketing." It is an offence to obstruct or impede the C.O.D. in the exercise of its powers and functions: s. 14. (at p581)
4. However the Act expressly declares that the C.O.D. "shall not be deemed to represent the Crown for any purpose whatsoever" (s. 6 (4)). Moreover, the Government has no general power of control or direction over the conduct of the affairs of the C.O.D. although the Governor in Council has power to require the C.O.D. to carry on the business of supplying fruit and vegetables in certain specified areas (s. 6F) and in certain other cases a Minister has limited powers to intervene in the affairs of the C.O.D. (e.g., ss. 4, 10 (2)). The funds of the C.O.D. are derived from its activities and from levies and are not provided by the Government (s. 14B), although its accounts are audited by the Auditor-General (s. 14A). The Minister appoints most of the members of the C.O.D., but the appointment is formal, since the persons appointed have been elected by sectional group committees (s. 9). (at p582)
5. Mr. Cooke, who appeared for the appellant, submitted that the C.O.D. is an organization which has been set up and armed with statutory powers for the benefit of growers of fruit and vegetables rather than for the purposes of the State. He relied, not only on the declaration in the Act that the C.O.D. does not represent the Crown, but also on the facts that the powers of the State to direct the affairs of the C.O.D. are very circumscribed, whereas the growers, by demanding a poll and voting when a poll is held, have a considerable ability to control the C.O.D. in the exercise of some of its most important powers. He relied also on the fact that the C.O.D. does not derive its revenues from the Crown, and submitted that if the intention of by-law 118 is to refuse eligibility for concessional rates to publications published by a body funded by the State, the C.O.D. does not answer that description. Finally he submitted that if the C.O.D. were wound up the proceeds of the winding up would be held in trust for the benefit of growers, by virtue of s. 29AB of The Primary Producers' Organisation and Marketing Act. It is unnecessary to consider whether that statute, on its proper construction, would have that effect, because the C.O.D. is set up to operate as part of a continuing organization, and cannot cause itself to be wound up; it is quite impossible to say that one of its purposes is to make profits or capital gains which are to be devoted to its individual members. (at p582)
6. There can in my opinion be no doubt that the C.O.D. exercises exceptional powers conferred on it by the State. The purpose for which those powers are conferred is to perform a function which under modern conditions is widely regarded as the proper function of a State, viz., to control the marketing of an important commodity produced by many people in many parts of the State.
The producers of the commodity are enabled to play a part in controlling the exercise by the C.O.D. of its powers, but that only means that the State has allowed the persons affected by the powers to play a part in their exercise. On a consideration of the whole of the provisions of the Act, it seems to me that the powers are intended to be exercised in the interests of the community rather than in the interests of particular individuals. The fact that the powers of the C.O.D. extend to the regulation and control of a particular industry of course does not mean that the C.O.D. is not exercising the powers of the State. Even if it is right to say that the powers are intended to be exercised in the interests of the industry, that does not mean that they are not intended to be exercised in the public interest, for it is in the public interest that an important industry such as that of the growing of fruit and vegetables in Queensland should be successfully conducted. For these reasons I consider that the C.O.D. is given by the Act exceptional powers to direct and control the affairs of others for the purposes of the State and in the interests of the community and not for individual profit or gain. I accordingly conclude that the C.O.D. is an authority of the State within the meaning of those words in by-law 118. I appreciate the force of the argument that there seems to be little obvious reason for denying concessional rates to an authority of the State which is in no way funded by the State, but there is nothing in by-law 118 to limit the class of authorities to which registration is denied to bodies which are supplied with funds by the State. (at p583)
7. For these reasons I agree with the conclusions reached in the Administrative Appeals Tribunal and the Federal Court and would accordingly dismiss the appeal. (at p583)