McGraw-Hinds (Aust) Pty Ltd v Smith
144 CLR 63324 ALR 175
(Judgment by: MURPHY J)
Between: McGRAW-HINDS (AUST) PTY LTD
And: SMITH
Judges:
Gibbs ACJ.
Stephen J.
Mason J.
Jacobs J.
Murphy J.Aickin J.
Subject References:
Constitutional Law (Cth)
Trade Practices
Judgment date: 5 April 1979
Sydney
Judgment by:
MURPHY J
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:
"8. Asserting a right to payment for directory entries or prescribed services.
- (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.
- Penalty: $500.
- (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 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 [1955] AC 667 ; 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 (1975) 235 NW 2d 597 ). 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. the Act does not impose any customs duty or similar fiscal impost. the Constitution is, therefore, not applicable for the reasons I gave in Buck v. Bavone (1976) 135 CLR 110 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. (1926) 37 CLR 393 , at p 413 :
"... 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 (1889) 14 App Cas 286, at p 293 calls 'the silent operation of constitutional principles'."
A constitutional principle, such as responsible government, may even appear inconsistent with the written text, nevertheless it operates. Isaacs J. went on to say (1926) 37 CLR 393 , at p 413 :
"... 'Responsible government', said Lord Haldane on an occasion referred to in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR, at p 147 , 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 (1966) 383 US 745, at p 758 (16 Law Ed 2d 239, at p 249) ; Shapiro v. Thompson (1969) US 618, at p 629 (22 Law Ed 2d 600, at p 612) ; Griswold v. Connecticut (1965) 381 US 479 (14 Law Ed 2d 510) ; Roe v. Wade (1973) 410 US 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 (NSW) (1937) 56 CLR 657 , at pp 681-682 , 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 (1925) 36 CLR 170 , at p 191."
Later, as Chief Justice, in Australian National Airways Pty. Ltd. v. Commonwealth (1945) 71 CLR 29 , at p 85 (and repeated in Lamshed v. Lake (1958) 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 (1942) 65 CLR 373 , at p 447 ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488 , at pp 515-516 and Melbourne Corporation v. Commonwealth (the State Banking Case) (1947) 74 CLR 31 , at pp 65-66, 70-75.) In the State Banking Case, Starke J. said (1947) 74 CLR, at p 70 : "The federal character of the Australian Constitution carries implications of its own."
In In re Richard Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation (1947) 74 CLR 508 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) (1971) 122 CLR 353 , at p 401 , 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 (1971) 122 CLR, at pp 401-402."
Walsh J. said (1971) 122 CLR, at p 406 :
"... 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 (1971) 122 CLR, at p 418 :
"... 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-a-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."
(1971) 122 CLR, at p 419
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 (1976) 135 CLR 110 and in Ansett Transport Industries (Operations) Pty. Ltd. v. Commonwealth (1977) 139 CLR 54 . References to implications of freedom of movement or communication may be found in Crandall v. Nevada (1868) 6 Wall 35 (18 Law Ed 745) ; R. v. Smithers; Ex parte Benson (1912) 16 CLR 99 ; Re Alberta Statutes (1938) SCR 100, at pp 133-134 , 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) (1957) SCR 285, at p 306 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.
The result is that the appeal should be allowed.