Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Queensland Rail & Anor [2015] HCATrans 6 (3 February 2015)

Last Updated: 7 July 2015

[2015] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B63 of 2013

B e t w e e n -

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

First Plaintiff

THE ELECTRICAL TRADES UNION OF EMPLOYEES QUEENSLAND

Second Plaintiff

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION

Third Plaintiff

QUEENSLAND SERVICES, INDUSTRIAL UNION OF EMPLOYEES

Fourth Plaintiff

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION

Fifth Plaintiff

AUTOMOTIVE, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND

Sixth Plaintiff

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES (FEDERAL)

Seventh Plaintiff

AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE EMPLOYEES, QUEENSLAND UNION OF EMPLOYEES (STATE)

Eighth Plaintiff

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION, QUEENSLAND BRANCH

Ninth Plaintiff

AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, QUEENSLAND BRANCH

Tenth Plaintiff

and

QUEENSLAND RAIL

First Defendant

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Second Defendant

FRENCH CJ
HAYNE J
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 FEBRUARY 2015, AT 2.14 PM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR H. EL-HAGE, for the plaintiffs. (instructed by Hall Payne Lawyers)

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friends, MS S.E. BROWN, QC and MR G.J.D. DEL VILLAR, for the first defendant. (instructed by Crown Law (Qld))

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MS. K.E. FOLEY for the Attorney-General for the Commonwealth, intervening. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS J.E. DAVIDSON, for the Attorney-General for the State of New South Wales, who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria: If it please the Court, I appear with my learned friend, MR G.A. HILL, for the Attorney-General for the State of Victoria, intervening. (instructed by Victorian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS R. YOUNG, for the Attorney-General for the State of Western Australia, intervening. (instructed by State Solicitor (WA))

MR M.G. EVANS, QC: May it please the Court, I appear with MR C. JACOBI, for the Attorney-General for South Australia, intervening. (instructed by Crown Solicitor (SA))

FRENCH CJ: Yes, Mr Kirk.

MR KIRK: Your Honours should have our outline of submissions, would your Honours want a minute or two to peruse it?

FRENCH CJ: Yes, Mr Kirk.

MR KIRK: Your Honours would appreciate that the core dispute between the parties – that is to say, my clients and the first defendant – is as to whether or not Queensland Rail, which I may tend to call QR, is a national system employer subject to the Fair Work Act, or whether instead the State’s Industrial Relations Act 1999 applies to regulate relations between the parties and the relevant employees.

Without going to the provisions in the Fair Work Act, in our written submissions – our primary submissions, page 2, footnote 8, we have given references to the relevant provisions of the Fair Work Act which illustrate that the foundation of the application of that Act is the definition of a national system employer which includes, relevantly, a constitutional corporation which is defined in terms in the definition section, section 12, to mean a corporation to which paragraph 51(xx) of the Constitution applies.

The dispute between the parties focuses on, first, whether or not Queensland Rail is a corporation within the meaning of paragraph 51(xx) and secondly, if so, whether it is a trading corporation. I will address these issues in turn. Before doing so, can I take your Honours directly to the impugned Act which your Honours will find in the bundle of legislative materials, relevantly starting at page 15 – that is using the small pagination down on the bottom right-hand side. The Act, of course, is the Queensland Rail Transit Authority Act 2013. I will just seek to pull out the most important provisions relevant to the issues before your Honours.

Starting with section 3, your Honours will see that the main purpose of the Act is to:

establish the Queensland Rail Transit Authority and to facilitate the restructure of its rail business to deliver significant benefits to the community, including –

certain identified matters, so it is about facilitating a restructure. One then turns to section 6(1):

The Queensland Rail Transit Authority (the Authority) is established.

Pausing there, we would respectfully submit that what that indicates is that some distinct entity is being brought into existence. One cannot then, of course, ignore subsection (2):

The Authority is not a body corporate –

and the significance of this provision is really at the heart of the dispute between the parties in relation to whether or not the Authority is a corporation within the meaning of section 51(xx).

HAYNE J: You say within the meaning of 51(xx) – which limb? Both limbs?

MR KIRK: Yes. Yes, and I will come to that, if I may, your Honour. In particular, picking up on the substance of your Honour’s point, we submit there is no relevant distinction between the indication of corporation when the first limb speaks of foreign corporation or when it speaks of trading or financial corporation, but I will come back to that. Subsection (3):

The Authority does not represent the State -

Section 7 -

The Authority has all the powers of an individual and may, for example –

(a) enter into contracts; and

(b) acquire . . . property . . .

(c) employ staff; and

(d) appoint agents and attorneys -

and so forth. Subsection (4) -

The Authority may sue and be sued in the name it is given under section 6(1).

What this provision indicates, in our respectful submission, is that it is, again, an entity as established by section 6(1). It is an entity capable of having powers and rights. Indeed, all the powers and rights of an individual and, of course, the other side of that coin, capable of having duties and liabilities. If it can employ people, it can obviously have duties and liabilities and so forth. These are fundamental indicia of being a distinct legal personality.

Section 8(2) at the bottom of page 17, it is a small point but it contemplates that the authority may have a seal for the purposes of sealing documents. Section 9 sets out the functions of the authority. Of particular note:

(a) managing railways;

(b) controlling rolling stock on railways;

(c) providing rail transport services . . .

(d) providing services relating to rail transport services

. . .

(h) doing anything else likely to complement or enhance a function mentioned –

above. Your Honours will also note subsection (2), that:

The Authority may carry out its functions directly, or indirectly through its subsidiaries.

That, in fact, is what it does, in substance, through its subsidiary QR Limited, and I will come back to that. But that provision, 9(2), itself of course contemplates that the authority is a being capable of having subsidiaries, as it does. Section 10:

(1) The Authority must carry out its functions as a commercial enterprise –

subject to subsection (2) -

(2) Subsection (1) does not apply to the Authority to the extent it is required under this Act to perform a community service obligation other than as a commercial enterprise.

That notion is expanded in sections 57 and 58, to which I will come shortly. Section 11, it is capable of exercising its powers and performing its functions outside of Queensland. So this is a being which may go outside the boundaries of the State and do things, interact with persons, interstate, subject to laws of other States, even leaving aside, of course, the Commonwealth. Section 12, “Ministerial directions”:

(1) The responsible Ministers –

I pause to note that there are two responsible Ministers, that is defined in the dictionary, it is relevantly the Treasurer and the Minister administering this Act, the Transport Minister –

(2) The Authority must comply with the direction –

And sub (3), must ensure, so far as practicable, that its subsidiaries do so also. Turning to Part 2 on page 20, it is headed, “Board”, section 14 provides that:

(1) The Authority must have a board.

(2) However, the Authority is not constituted by the members of the board.

In our respectful submission, that serves to emphasise that the authority is distinct from any human beings, including the controllers in the board. Section 15 spells out the role of the board in unsurprising terms. Your Honours will note subsection (1):

(1) The board is responsible for the way the Authority performs its functions and exercises its powers.

Section 16, over the page, deals with the appointment of three to seven members who are “appointed by the responsible Ministers”, subject to some limitations as to who may be appointed in subsection (3). Section 17 identifies, unsurprisingly, there will be a chairperson, and so on, and 20 and 21 deal with vacation of office and casual vacancies. Division 2 of Part 2 at the top of page 24 is headed “Business”, meaning business of the board, and section 22:

Subject to this division, the board may conduct its business, including its meetings, in the way it considers appropriate –

and there are various provisions, again of an unsurprising kind, as to the way the board should conduct its business. If I could take your Honours to page 27, headed “Part 3 Senior employees”, “Division 1 Chief executive officer”, section 29:

(1) The Authority must have a chief executive officer.

(2) The chief executive officer is to be appointed by the board with the prior written approval of the responsible Ministers –

Your Honours might note section 30(3) –

The board may [terminate] the appointment [of the CEO] for any reason or none.

Section 32, over the page, sets out some qualifications for appointment; for example, (c) is they may not be appointed if they are:

not able to manage a corporation because of . . . part 2D.6 –

of the Corporations Act. Section 33 indicates that the CEO –

is responsible for managing the Authority’s affairs –

and section 34 –

Anything done in the name of, or for, the Authority by the [CEO] is taken to have been done by the Authority –

so it illustrates that the Authority may act through human agency, but in so doing it is the actions of the authority, not of the human agent, the CEO. Part 4 on the same page, “Reporting and accountability”, sets out provisions relating to that topic. Section 36, for example, applies certain State laws relating to financial accountability of government entities.

FRENCH CJ: I notice that refers to statutory bodies. Does the term “body corporate” turn up in any relevant Queensland statutes?

MR KIRK: Not materially, so far as I can recall, your Honour, no, and in relation to the Financial Accountability Act 2009, for example, some parts of that Act do apply, for example, to government-owned corporations. That is pursuant to the Government Owned Corporations Act, section 118. So it is not as though that Act, for example, is distinct to things which are not bodies corporate.

HAYNE J: One of those Acts makes the Treasurer of Queensland a corporation sole for at least some purposes, I think.

MR KIRK: That may be right, your Honour, yes. Section 38, under the heading “Division 2 Reporting generally - - -

HAYNE J: Just before you pass by 37 and the “Application of Crime and Corruption Act”, but for 6(2), would the Corporations Act (Cth) have applied to those who are members of the board of this body, in particular would the duties imposed on directors by the Corporations Act have been engaged?

MR KIRK: I am not sure I can answer that with 100 per cent confidence in that to answer that question one would need to work through the relevant definitions within the Corporations Act. There are definitions I recall but I just cannot recall the detail of bodies corporate. I think a distinction is drawn in the Corporations Act, if I remember, between certainly companies and bodies corporate, but certainly it follows from our argument that the Commonwealth is capable of so regulating bodies such as this in relation to regulation of directors’ duties and so forth, yes. Section 38 “Quarterly reports”, your Honour - - -

HAYNE J: Well, no, can I just detain you a moment on that because the point may not be unimportant? If 6(2) is to be assigned a meaning, and the meaning that is to be assigned to it was one which took this body outside the Corporations Act use of the term “body corporate” to the end point where the authority becomes a unique, artificial, legal person, not within the reach of the Corporations Act, the presence of 37 takes on particular significance, that is, the disciplining of the board, if you like, to use a far too general term, is effected not through the imposition of Corporations Act duties but through the application of Crime and Misconduct Act.

Now, I understand you are not in a position to deal with that point immediately, but at some point it may be that it will be necessary to come back to it and tell me, most likely, that I am off on a wild frolic of my own which is to be ignored completely or that there is something there that may perhaps have something to do with the issues we have to deal with.

MR KIRK: It might be possible, too, that even if the Corporations Act did apply to regulate directors’ duties, for example, the fact that the State imposes additional duties would not necessarily be inconsistent, subject to carefully considering issues of covering the field and such like.

HAYNE J: Sure, but the point is at some point in this we are going to have to give some meaning to 6(2).

MR KIRK: Yes.

HAYNE J: At least initially it would seem to me there is no little danger of assuming that “body corporate” as used in this Act is synonymous with “corporation” in the Constitution, is synonymous with “body corporate” in the Corporations Act, is synonymous with “a corporation” as ultimately identified in the Corporations Act. Now, at the end of the day, perhaps there is absolute congruence between all of those terms but that is a matter for demonstration, not assumption.

MR KIRK: Yes. Of course, the ultimate issue in dispute, as I sought to identify at the start, hinges on whether or not Queensland Rail is a corporation within 51(xx).

HAYNE J: Just so.

MR KIRK: Not whether one applies the label “body corporate” or “foundation” or any other word that one chooses to apply.

HAYNE J: Just so.

MR KIRK: I will take that on board, your Honour. I have mentioned section 38. Moving on to page 33, in the small pagination, “Division 4 Strategic and operational plans”, by way of a brief summary of this division, Queensland Rail is required to have two types of plans – a strategic plan and an operational plan. These have to be submitted by the board to the responsible Ministers. Your Honours will note in section 50 on page 34 that the draft strategic or operational plan has to be, in effect, agreed in writing by the responsible Ministers and they then become operational. If your Honours turn the page to section 51:

The Authority must comply with its strategic and operational plans for a financial year.

Section 53 sets out what the content of an operational plan must be – objectives, capital structure, the nature of the activities to be undertaken and so forth. I note for completeness there is no equivalent provision in relation to what strategic plans must contain. Part 5, on the next page, is headed “Directions about equity and dividends”:

Division 1 Direction about equity

Subsection (1):

The responsible Ministers may, at any time, give the Authority a written direction about payment or transfer of an asset or liability to, or withdrawal or transfer of an asset or liability from, the Authority’s equity.

The notion of the authority’s equity is not defined in the Act, so far as we can see. Division 2, sections 55 and 56, deal with dividends. Under section 55:

The responsible Ministers may give the Authority a written direction to pay to the State . . . a dividend –

That does not appear to be required. Section 56 deals with the amount of dividend and your Honours would note subsection (1) that the process involves the board giving a pre-estimate of:

its profit for the financial year, and:

(b) a recommendation about the amount of the dividend that may be required to be paid -

That self-evidently contemplates that the authority may be making a profit, unsurprisingly in light of section 10 which is that:

The Authority must carry out its functions as a commercial enterprise.

Your Honours will also note section 56(3), that:

The amount of the dividend for a financial year must not be more than the amount that would be allowed to be paid –

under the relevant part of the Corporations Act. Sections 57 and 58 in Part 6 I alluded to earlier deal with community service obligations. Section 57, in effect, defines those. They are –

obligations to perform activities that –

in essence –

(i) are not in the Authority’s commercial interests to perform; and

(ii) arise because of a request or direction –

from the responsible Ministers. Of those three sections, sections 48 and 52 relate to operational plans. Section 12 is the general power of ministerial direction and they must be identified as such -

in the operational plan as community service obligations of the Authority.

But, your Honours will note, section 58(3), over the page, that:

The Authority’s operational plan is conclusive, as between the government and the Authority, of –

(a) the nature and extent of the Authority’s community service obligations; and

(b) the ways in which, and the extent to which, the Authority is to be compensated for performing its community service obligations.

So there appears to be an implicit expectation that insofar as it is undertaking things not in its commercial interests to perform pursuant to a ministerial direction, it will receive some recompense for that from the government. I note for completeness – just whilst I am dealing with the topic – that so far as we can see there have been no such community service obligations identified in the operational plan. Part 7, “Acquisition and disposal of assets and subsidiaries” – section 59(1):

The responsible Ministers may, after consultation with the board, give the board a written direction requiring the Authority or a subsidiary of the Authority not to dispose of a stated asset.

Your Honours will thus note that although 59(1) is speaking of directions to the authority, it is effectively seeking to bind the subsidiary as well. Over the page, section 61:

The Authority may not, without the prior written approval of the responsible Ministers –

(a) form, or participate in the formation of, a company that will become a subsidiary of the Authority; or

(b) acquire shares or participate in –

transactions such that something ceases to be a subsidiary. Again, there is the contemplation that the authority is a distinct entity which may have subsidiaries. Part 8, your Honours will see, is headed “Commonwealth tax equivalents”. Without getting bogged in the detail, your Honours would note subsection (4) on page 40:

The Authority and its subsidiaries must, as required under the tax equivalents manual –

as contemplated by subsection (1) –

pay tax equivalents to the Treasurer for payment into the consolidated fund.

This is a provision which will be familiar to your Honours, reflecting the Hillman-type reforms whereby State Government enterprises were required to pay Commonwealth tax equivalents, but they are actually paid to the State. I note also, incidentally, that again – the contemplation here by implication is that the Authority may make profits on which tax – Commonwealth tax – would have been payable if it had been an ordinary entity. Turning to Part 9, on page 41, “Matters relating to change of name of Authority”, section 63:

30 days after the transfer day –

The transfer day was when the Act commenced which was 3 May 2013 –

the Authority’s name is changed to Queensland Rail.

Section 64 is a significant provision, in our respectful submission:

The change of name under section 63 of the Authority from ‘Queensland Rail Transit Authority’ to ‘Queensland Rail’ does not—

(a) affect its legal personality or identity; or

(b) affect a right, entitlement or liability of the Authority or anyone else; or

(c) make legal proceedings by or against the Authority defective.

The plain presupposition of 61(a) and, indeed, (b) and (c), is that the authority, however named, has its own distinct legal personality or identity. It can have rights, entitlements or liabilities. It can be subject to legal proceedings. Subsection (3) simply confirms that legal proceedings may proceed against the authority under its new name. Section 66 is within Chapter 3 “Provisions for restructure of declared entities”. Section 66(1) defines what a declared entity is; it is:

(a) Queensland Rail Limited –

and that notion will be explained shortly in the provisions –

(b) the Authority;

(c) a body corporate of which an entity mentioned in paragraph (a) or (b) is the ultimate holding company –

That rather suggests that the authority might be a holding company, but one has to read that in light of the definition in subsection (3) –

ultimate holding company has the meaning given by the Corporations Act, section 9, as if [particular sections] of that Act did not apply and the Authority were a body corporate.

I note, Justice Hayne, that those sections may be some of the ones I was alluding to about the definitions of “body corporate” and how the Act applies to such.

HAYNE J: “Body corporate” is used in the Corporations Act in much more general provisions.

MR KIRK: Yes. If one then turns over the page to Part 2, still within Chapter 3:

On the transfer day –

3 May 2013 –

Queensland Rail Limited’s shares are transferred to the Authority.

Now, Queensland Rail Limited, as your Honours would appreciate, was a government owned corporation, regulated under the Government Owned Corporations Act. In our outline of oral propositions, we have referred, just for convenience, to a decision of his Honour Justice Logan in a case involving my first client and QR Limited, which, as it happens, sets out a useful history of Queensland Rail and, indeed, as it happens, railways in Australia and England generally and the way they have waxed and waned in and out of public and private ownership, and in and out of corporate status, and in and out of ministerial control to various degrees.

FRENCH CJ: Is it right that all the Act tells us about Queensland Rail is what is seen in the dictionary? It means Queensland Rail Limited with an ACN number - that is a pre-existing entity.

MR KIRK: Yes, that is right. Going back to - - -

HAYNE J: Was that the body that remained after the floating off of part of the QR operations?

MR KIRK: Correct, which occurred, as I recollect it, in early 2010.

HAYNE J: Yes.

MR KIRK: In the special case – I will not take your Honours to it – but there is a reference to QRL having been regulated under the Government Owned Corporations Act since 2010. That is not to suggest either its predecessors were not previously under the Act; it is just that a division occurred in 2010, as your Honour noted. Section 68:

On the transfer day, the declaration of Queensland Rail Limited as a GOC is revoked.

That is a government owned corporation but, subsection (2), that does not affect in relation to QRL the legal personality of QRL, its functions and powers, et cetera. Part 3 is then where we hit what we respectfully submit is the core inconsistency with the Fair Work Act. Section 69(1):

To remove any doubt, it is declared that—

(a) the Authority is an employer for the IRA –

The IRA is defined to mean Industrial Relations Act 1999 (Qld) –

(b) employees of the Authority are employees for the IRA; and

(c) the Authority is taken to be a government entity under the IRA, section 691B(2); and

(d) an industrial instrument that applies to the employment of persons in the Authority is taken to be an industrial instrument to which the IRA, chapter 15, part 2 applies –

If your Honours might keep your fingers on that page, but if I could take your Honours to page 200 in this same legislative bundle within the Fair Work Act, your Honours will find section 26 of the Fair Work Act and, as your Honours would recall, section 26(1):

This Act –

that is, the Fair Work Act –

is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2) A State or Territory industrial law is:

(a) a general State industrial law –

but to put the matter beyond doubt, over the page in subsection (3) it says:

Each of the following is a general State industrial law –

and your Honours will note (3)(b) -

the Industrial Relations Act1999 of Queensland –

So the two cannot stand together. Going back to where I was in the legislative bundle, page 43, I just dealt with section 69 in the impugned Act. If your Honours turn to the next page, section 70, under the heading “Part 4 Transfer of employees of Queensland Rail Limited”, your Honours will note in the definitions section a definition of “federal enterprise agreement” and there are then identified eight enterprise agreements. The ones that relate to my clients and at issue in this case are the one in (a) - what we call a “Traincrew” agreement and the one in (e) which we have labelled the “Rollingstock” agreement.

Section 71 is the provision which transfers the employees from QRL to QR, the authority, so on the transfer day – that is the commencement of the Act – an employee of QRL immediately becomes an employee of the authority, ceases to be an employee of QRL and relevant records and liabilities relating to the employees go from QRL to QR. Section 72 deals with preservation of rights of the employees. Your Honours might just note in passing subsection (2) over the page:

Subject to section 69, the transfer has effect despite any other contract, law or instrument.

Section 73 is another provision at the heart of what we allege to be the inconsistency.

On the transfer day—

(a) a federal enterprise agreement –

That is one of those eight defined –

is taken to be a certified agreement that has been certified by the commission –

that is the State Industrial Relations Commission, under the State Act -

(b) each certified agreement is taken to bind the Authority, and its employees and any State employee organisation affiliated with a federal employee organisation –

Your Honours would have noted that there are 10 plaintiffs before the Court. That is five federal unions and five State equivalents for each because it is now those State – the second, fourth, sixth, eighth and tenth plaintiffs – who were bound by the old enterprise agreements. In fact for the Traincrew agreement, a new certified agreement has been made under the – or purportedly made under the Industrial Relations Act.

Section 74 is a necessary interpretation clause that all references in the federal enterprise agreements are to be read mutatis mutandis as though they were references applying under the State scheme, in effect. I can pass over section 75 to section 76 briefly. On the transfer day an old State award is repealed and then (1)(b), 76(1)(b), a particular award made by the Fair Work Commission under the federal scheme is taken to be an award made under the State scheme. Jumping over to the next page, page 49, section 78 “Transfer notice”:

For the purpose of the restructure of a declared entity –

and your Honours will recall, declared entity includes both QR and QRL and relevant subsidiaries -

the responsible Ministers may, by gazette notice (a transfer notice), do any of the following-

for example, transfer shares to and fro, transfer assets and liabilities to and fro. I note that really to point out that it is not only QR but QRL which can be subject to ministerial direction and it is an admitted fact in the special case that, at least from 3 May 2013, QRL has remained a trading corporation. Of course that does not bind the Court as a matter of law, self-evidently, but from QR’s perspective it could not be said that QRL is in a distinct position because it is immune, for example, from directions from responsible Ministers. A similar point can be made at page 52, section 79, under the heading “Restructure direction”:

The responsible Ministers may give a direction (a restructure direction) to a declared entity –

So again that includes QRL –

or its board requiring the entity or board to do something the responsible Ministers consider necessary or convenient for effectively carrying out the restructure of a declared entity.

I note in passing a restructure is broadly defined in the dictionary. Over the page, section 79(4):

A declared entity must comply with a restructure direction given to it.

Section 80, under Part 6 “Other matters for restructure” is very similar to section 68, just confirming that QRL’s legal personality, that is QRL’s legal personality is not affected by the transfer of shares and employees. If I can take your Honours briefly to page 57, section 87 - this is just by way of context really:

A direction given by the responsible Ministers under this Act is an excluded matter for the Corporations Act, section 5F -

That is of course one of the rollback provisions in the Corporations Act and then if I can take your Honours to page 61 –page 61 on the small pagination, chapter 4, sections 94 and 95, 94 first:

Despite section 16, each of the members of the board of Queensland Rail Limited -

So that is the old body –

is appointed on the transfer day as a member of the –

new body’s board. Similarly, 95 -

the chief executive officer of Queensland Rail Limited is appointed on the transfer day as the Authority’s chief executive officer -

and subsection (2), so too for the senior executives. Finally, page 63, section 100(1):

The giving under this Act of functions and powers to the Authority does not, of itself, deprive Queensland Rail Limited of the effective management and control under the Transport (Rail Safety) Act 2010 of its rail infrastructure and railway operations relating to rolling stock -

and that reflects what has happened, namely, that it is still QRL which is the operator of the railway systems. The employees have all gone to QR, QR supplies those employees to QRL, but QRL still has the licences, the contracts and so forth. If one buys a ticket, one is buying a ticket from QRL. They are the only provisions I wanted to show your Honours in the Act. Self-evidently, section 6(2) and its significance lie at the heart of the dispute.

Can I turn to the fundamental issue of principle, which relates to identifying corporations for the purposes of paragraph 51(xx) of the Constitution? That is an issue which has not, so far as we or any of the other parties have identified, ever been directly addressed by this Court, or any court of which we are aware, save for a relatively brief reference by his Honour Justice Murphy in Adamson’s Case, which we have picked up in our written submissions.

In the submissions I will seek to make, and all of the other parties in different ways will seek to make, we will refer your Honours to a range of cases and materials seeking to throw some light on this notion of what is a corporation within 51(xx). That includes, for example, cases such as Chaff and Hay, identifying the ability of different bodies to be sued outside their own jurisdiction, but those cases and materials – with the one exception I noted – do not seek to address the distinct question of what corporation means within 51(xx). That is a unique Australian constitutional question.

It, of course, falls to be resolved by well-established principles. By way just of brief revision, could I take your Honours briefly to Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, starting at paragraph 16 on page 492? Your Honours will see, in paragraph 16 – and this provision, of course, has been referred to a number of times since the Work Choices Case, for example – an articulation of five core principles in relation to constitutional construction. The third line:

First, the constitutional text is to be construed “with all the generality which the words used admit”. . . . Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. Thirdly, the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power.

Just dealing with those two propositions, what the joint judgment, of course, is dealing with there is characterisation of Commonwealth laws in order to ascertain the sufficiency of connection between a head of Commonwealth power and the enactment of Commonwealth power – the particular enactment in Commonwealth power.

It is not quite the issue we are dealing with there, of course. We are dealing with the character of a body established by State law and how that fits into a constitutional notion. But, in our respectful submission, that approach captured in the second and third propositions is equally applicable to ascertaining the character of something which is a constitutional conception. It is not an issue of sufficiency of connection to power of the kind dealt with here, but it is the same type of issue of whether something created by a legislature falls within a constitutional notion.

So, in our respectful submission, one does look to the rights, powers, liabilities, duties and privileges which are created. In other words, here, the objective nature of the body created. One looks to the legal operation of the law as well as the practical effect.

HAYNE J: Well, beyond the observation that you say the authority is created as a right and duty bearing entity, what further inquiry is permitted or required?

MR KIRK: That leads to then the issue of what a corporation is within the meaning of 51(xx) and whether the character that the authority has falls within that notion such as to be a constitutional corporation.

HAYNE J: I doubt the observation that the authority is a right and duty bearing entity does not without more conclude the 51(xx) issue. But you say that by analogy with Grain Pool we have got to look at, apparently, something more including practical operation of what – the Queensland Act? What is this larger inquiry that you say is to be made by analogy with Grain Pool?

MR KIRK: It is sufficient for our purposes to focus on, really, that second proposition, the rights, powers, liabilities, duties and privileges which it creates.

HAYNE J: Which “it” being? It creates - - -

MR KIRK: The State Act.

HAYNE J: The State Act.

MR KIRK: What is the nature of the body which the State Act has brought into being? The key relevance – and the reason I am taking your Honours to this passage is that the fundamental foundation of QR’s Case, in the end, is section 6(2); that is the nub of it. In our respectful submission, a provision such as section 6(2) – which in the end, in a sense, is actually something of a legal conclusion, or a legal label - what is this body? It is not a body corporate. That sort of self-characterisation, or self-conclusion, cannot come within cooee of determining the nature of the body for constitutional purposes, for obvious reasons, because otherwise the State which has every incentive to seek – particularly in this controversial area – to seek to bring itself outside Commonwealth power, has a ready means of doing so.

The way this Court has approached these sorts of constitutional issues is not to look at the ipse dixit of the Parliament but to look at the nature of the thing being considered. We would also draw in aid, as we do in our written submissions, for example, the way the Court approaches section 90 and excises. A State Act which says, by the way, this levy is not an excise is not determinative of the section 90 question simply because of the provision.

GAGELER J: Mr Kirk, I see that section 6(3) says:

The Authority does not represent the State.

Is it relevant in any way to the question of whether the authority is a State for the purposes of, say, section 75(iv) of the Constitution?

MR KIRK: No, but can I come back to that? I might just deal with Grain Pool, if I can, and then I am going to come very shortly to the constitutional text and, in so doing, I will also address the positions of the States, including the issue your Honour has just raised with me, if I may.

Just a couple of other paragraphs I wanted to remind your Honours of in Grain Pool. In paragraph 18, there is a reference to Brislan and section 51(v) of the Constitution. In the last two sentences there:

Later developments in scientific methods for the provision of telegraphic and telephonic services were contemplated by s 51(v). Likewise, it would be expected that what might answer the description of an invention for the purpose of s 51(xviii) would change to reflect developments in technology.

We would respectfully submit the same would be equally true in relation to the dynamic evolution of the corporations, and I will make a similar point by reference to Work Choices in due course. Finally in this case can I take your Honours to paragraph 23 on page 495? Having quoted an American judgment of Justice Story, their Honours say:

These words do not suggest, and what follows in these reasons does not give effect to, any notion that the boundaries of the power conferred by s 51(xviii) are to be ascertained solely by identifying what in 1900 would have been treated as –

the relevant matters of intellectual property. Then, a reference in that last sentence to:

insufficient allowance for the dynamism which, even in 1900, was inherent in any understanding of the terms used in s 51(xviii).

In our respectful submission, there is a similar dynamism in relation to the terms used in 51(xx), which I will seek to illustrate by reference to Work Choices shortly.

FRENCH CJ: That says nothing more, does it, than that the concept of corporation, for the purposes of 51(xx), is not limited to the kinds of corporations that existed at the end of the 19th century?

MR KIRK: Yes, absolutely so. That, in turn, points to a deeper consideration which is that this is a Constitution we are interpreting meant to endure and to encompass unforeseeable and future events.

KIEFEL J: But that suggests that the words of 51(xx) are not themselves dynamic, but open textured.

MR KIRK: That is probably a better way of putting it, with respect, your Honour, yes.

HAYNE J: But the point is perhaps also more radical. All of the parties and interveners, I think, accept the correctness of the Incorporation Case. I do not think there is a suggestion that we should reopen Incorporation. Therefore, 51(xx), in this limb, is engaging with something called “trading or financial corporations formed within the limits”, et cetera, which are the creatures of State Parliaments.

Is it to be assumed that the concept spoken of in 51(xx) is frozen in time and that, if you want to adopt the old property proposition, that the State Parliaments are beyond the age of child-bearing when it comes to the nature of – for the moment, let me refer to them simply generally as “artificial legal persons”. I do not by that formulation want to foreclose argument about what connection, if any, is to be drawn between that concept and the constitutional concept, but why would one construe 51(xx) as saying it is directed only to, what, something that a colonial lawyer or an English lawyer would then have understood then existing legislation to provide for creation? I think the proposition has to be as narrow and confined as that.

MR KIRK: And, your Honour, with a particular label attached. We call this - or the State Parliament calls it - a body corporate or it does not, or it calls it a corporation or it does not. That cannot have been, or should not be regarded, in our respectful submission, as giving appropriate scope to a head of federal power meant to endure. Can I seek to develop that by reference to the text, and if I can take your Honours – you probably all know the words by heart, but if I could take your Honours to the text of 51(xx) and seek to go through it carefully.

As we set out in our written submissions, and in this respect I do not think we differ - in fact, in almost no respect do I think we differ from the submissions of the Commonwealth Attorney – in no significant respect. At the heart of the notion, in our respectful submission, is that a corporation is an artificial legal entity with distinct legal personality. That is to say, it is a juristic person established pursuant to law. As I will seek to develop in due course, there are aspects of perpetual – or what we would prefer to call continuous – succession within that, perhaps also having a name, and again I will come back to that, but at the heart is that notion of an artificial legal entity with distinct legal personality capable of having rights and duties, powers, liabilities and so forth.

Focusing on the text one comes, of course, to foreign corporations first. As your Honour Justice Hayne has just put to me, that cannot be taken to be limited to countries with British legal heritage. In fact, certainly Britain we would not have called foreign in 1900. It means truly foreign, quite distinct from our legal system. That indicates, in our respectful submission, that what the words are incorporating are a notion of fundamental elements of what might be called a corporation and not the peripheral particular historical attributes of these entities. One has to look to the heart of the notion. An obvious analogy might be drawn here too to marriage, which your Honours have recently considered in Commonwealth v ACT, except here the point is even stronger in a sense in that the words of the text speak expressly of foreign corporations, whereas the next power, (xxi), speaks simply of marriage.

In its written submissions, at paragraph 52, without going to it, QR submits a necessarily pragmatic approach should be applied to entities created under foreign law, but seeks to distinguish that from what one might apply to domestic entities. That presupposes that a different meaning should be given to the two notions of corporation, and as I put to your Honour Justice Hayne earlier, that is contrary to our submission, and textually and as a matter of basic approach to construing such legal instruments, one would need persuasion, in our respectful submission, that the same word, used in the same line, in the same power, was meant to have distinct meanings, particularly in a context whereas I alluded to earlier and, indeed, as your Honour Justice Hayne has just put to me, the States are not beyond child bearing, things move on.

Furthermore, as I put earlier, the States have an incentive to seek to bring themselves outside this power from time to time, in particular in relation to things such as industrial relations – as has been the subject of argument for the last century. In that context, why a different approach should be taken to breadth in relation to foreign corporations, and a narrowness in relation to trading or financial corporations, is far from apparent. There is a further issue here, which is that the heart of QR’s position is that the – and I am quoting here from paragraph 11(c) of their submissions:

the intention of Parliament is the defining feature of whether an artificial juristic entity is created as a corporation –

“the intention of Parliament”, and that leads them, of course, to section 6(2). Ascertaining the intent of a Parliament within Australia is a difficult enough concept applying Australian principles of statutory construction. To apply that to a law which might be fundamentally alien to our way of thinking is not likely to be something one would readily accept in relation to foreign corporations.

KIEFEL J: Do you say that leads you to look for an essential characteristic or characteristics because it would have been known even at the time that the Constitution was framed that there existed entities in other jurisdictions which were not comparable? Some were comparable to corporations, body corporates as known to English law, and others not.

MR KIRK: Precisely so, with respect. I do not mean to suggest, of course, that there is always going to be a clear line. There are always going to be issues of degree, including in relation to foreign corporations, is a stiftung, for instance, a charitable foundation under German law, something that we would regard as a corporation, or not? One would need to analyse the nature of that. But what one analyses is the characteristics of the body, not some deep search for legislative intent, or some label that has been applied or disapplied by some foreign lawmaker.

HAYNE J: Can I just unpick that a little? It may be that it is unnecessary to do so but I wonder whether it may not be. An available point of view is, I think, that the notion of a legal person is simply a definitional unit or entity adopted by the legal system. All that is necessary, all that is sufficient, to its definition is that it is a right or duty-bearing entity. Those are ideas that are developed in Paton’s Jurisprudence, 3rd edition at 352 and H.L.A. Hart looked at them. Once you go beyond the observation that one of the definitional terms of a legal system is, there are entities to which the law attributes rights, to which the law attributes duties, is it necessary to go beyond that observation to identify further characteristics which will identify a subset of legal persons; in particular, a subset of artificial legal persons which is called a corporation?

MR KIRK: One, in the end, needs to come back to the word “corporation”, of course, but what we are all seeking to grapple with is what that encompasses as a matter of, not choice of law, not recognition of foreign entities, but constitutional law.

HAYNE J: But, do you, for example, in connection with foreign corporations? When you are grappling with a foreign corporation, a creature of a system which may be organised radically differently from the common law legal system, beyond observing that the legal person with which you are dealing is an artificial legal person – it is not a natural legal person – this search for the essence, this search for the defining characteristics, invites attention to whether you are chasing a mirage. Perhaps you are not. Perhaps you are chasing a real target. But at some point, if that is the submission you are going to make, I will need to know what are these characteristics that you say are the further or additional defining characteristics.

MR KIRK: None.

HAYNE J: Yes.

MR KIRK: None. At its heart it is an artificial legal entity capable of having rights and duties, powers and liabilities and so forth, and that is it. In fact in the Incorporation Case – and I do not seek to place a lot of reliance on this because I recognise this issue was not argued – but the majority there, for example, said that 51(xx) is a power with respect to persons. I will just give your Honours that reference. It is (1990) 169 CLR 482 at 497 in the joint majority judgment. Their Honours said about point 6 of the page:

The power conferred by s. 51(xx) is not expressed as a power with respect to a function of government, a field of activity or a class of relationships but as a power with respect to persons, namely, corporations of the classes therein specified -

Then on the next page, page 498, at about point 7, the end of that middle paragraph:

The power conferred by s. 51(xx) to make laws with respect to artificial legal persons is not a power to bring into existence the artificial legal persons upon which laws made under the power can operate.

So that of course is the ratio of incorporation. But again without placing too much reliance on it, what the Court is implicitly acknowledging, well, this is something to do with persons, personality.

GAGELER J: It is one thing to say that a corporation is an artificial legal person; it is another thing to say that every artificial legal person is a corporation. Do you go that far?

MR KIRK: We do go that far, save as for States, and I will come back to that shortly. I have not forgotten your Honour’s point. It is not inconceivable there might be other particular exceptions, but at least in general, in our submission, it is necessary and sufficient that it be a distinct artificial legal person capable of having some rights, duties, liabilities, et cetera.

FRENCH CJ: So is it sufficient, going to sections 6 and 7, that the entity is created by statute and has all the powers of an individual?

MR KIRK: That is certainly sufficient, yes. It is not necessary because of course - - -

FRENCH CJ: No, no, I understand, but yes, just for your purposes - - -

MR KIRK: Yes is the answer to your Honour’s question. Coming back to the - - -

KEANE J: Mr Kirk, in relation to your point about labelling, if you like, at page 499, the joint judgment in the Incorporation Case refers to the judgment of Sir Isaac Isaacs in Huddart, Parker and quotes with approval over at 500 what he said:

“The creation of corporations and their consequence investiture with powers and capacities was left entirely to the States.

Do you disagree with that?

MR KIRK: I would go a little further and adopt what his Honour says in the fifth line:

It finds the artificial being in possession of its powers –

So that gets to that notion, but can I come back perhaps to - - -

KEANE J: Well, that is saying that the Commonwealth Parliament finds these artificial entities, the creation of which is within the control of the States, and takes them with the personality, or powers and capacities, if you like, created by the State.

MR KIRK: Yes, and no, I - - -

KEANE J: If the State then says, here is an artificial legal entity, it is a right bearing unit but it is not a corporation - - -

MR KIRK: That point is, of course, raised against us by various of the Attorneys. The answer is, in our respectful submission, it confuses two points. We do not dispute it, as I think your Honour Justice Hayne put to me. No one has challenged the Incorporation Case in this case so it may be taken - but what that means is that the Commonwealth cannot, under 51(xx), as opposed to other powers, provide for incorporation. It can under other powers, 51(i), for example, but not under 51(xx).

That is the ratio of the Incorporation Case and in that sense it means that the power is construed as the Commonwealth takes corporations created overseas or created domestically and can regulate them. But what that proposition does not involve, in our respectful submission, is that a corporation is what a State says or labels it. One looks to the objective character of the entity created and if the objective character - the State do not have to create it, but if the State choose to create a body, however they label it, which has the objective character of a constitutional corporation, it is - - -

KEANE J: So it is any artificial right-bearing entity is a corporation?

MR KIRK: Yes, leaving aside States, which I will come to shortly, and I recognise there could conceivably be other particular exceptions but as a general rule, yes, your Honour.

FRENCH CJ: By “artificial” you mean or understand created by statute?

MR KIRK: I would hesitate to adopt the word “statute” because again that is a kind of Anglo-Australian notion. It may be that in other foreign systems they would not use “statute”. Furthermore, of course, historically corporations could be established by royal charter, at least in olden times but established pursuant to law, yes.

FRENCH CJ: But sufficient for your purposes?

MR KIRK: Yes, yes. Just coming back to the text, the word “formed” within that second limb of 51(xx), itself bespeaks an artificial process of creation, implicitly pursuant to law we would accept, and it bespeaks the creation of some entity so that is the very thing we are seeking to deal with. Of course, the extent of federal regulatory power under 51(xx), when one does have corporations of the relevant kinds, has been a matter of great dispute, resolved in Work Choices, but what that resolution - and I will come to Work Choices - illustrates is that what is being regulated, what is the subject of regulatory power is activities, things done. Things done by what? By entities, legal persons.

I will now deal, if I may briefly, with the positions of the States and Territories. The Commonwealth mentions both in its submissions. In our respectful submission - we perhaps differ slightly from the Commonwealth here - the Territories are irrelevant and a distraction. Polities of the Territories are pure creations of the Commonwealth under section 122. What it creates it can uncreate – Kartinyeri. It can regulate as it wishes. It does not need 51(xx). It is a distraction.

In relation to the States, we do not suggest, consistently with the Commonwealth, that they are a corporation within 51(xx). We would respectfully base that on the fact that they are not formed in a meaningful sense within the limits of the Commonwealth. What they are in truth is parts of the Commonwealth. Could I take your Honours to covering clause 6 of the Constitution, which is the definitions section. First we have definition of “the Commonwealth” and then:

“The States” shall mean such of the colonies . . . as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called “a State”.

They are not something separate to the notion “the Commonwealth of Australia was established by the Constitution”. They are integral parts of it. They cannot meaningfully be described, in our respectful submission, as formed within the limits of the Commonwealth. Now then, to come back to the point your Honour Justice Gageler raised with me about – I think it was section 75(iii) of the Constitution, or 75(iv) perhaps.

GAGELER J: Well, there are many other provisions, obviously, that refer to the State.

MR KIRK: Indeed, and what cases – there are a series of cases in the Court; I think the Commonwealth refers to SGH Nominees – illustrate is that the reference to “State” in provisions such as section 75(iv) may pick up instrumentalities of the State, so it is broader than certainly, for example, just the Crown. It may pick up instrumentalities of the State for the purposes of that provision. But the concession I just made about 51(xx) not extending to the States is not to concede an immunity. It is not that we are saying the States are immune from regulation under 51(xx), because that would be to take us back to pre-Engineers days. Rather, a State qua State, as that artificial legal entity, if we can call it that, created by the Constitution is not within 51(xx), but there is a distinction and can be a distinction between an instrumentality of the State, which since Engineers is well capable of regulation by the Commonwealth as indeed the State is, and the State itself.

The converse point is illustrated, as we pointed out in our written submissions, by ASIC v Edensor, where in ASIC v Edensor, this Court held that reference to the Commonwealth or a person suing or being sued on behalf of the Commonwealth encompasses ASIC. But ASIC is a body corporate, established pursuant to its statute, I recognise that cannot resolve the constitutional issues, but it illustrates them. But it is perfectly meaningful and plausible to have the State choosing to create, and act through its own entities, but that might be part of the State for the purposes of section 75, or conceivably for 114.

GAGELER J: Mr Kirk, my question was actually much more precise. If you accept, as I certainly do, that a body created under State legislation can be both the State and a trading corporation, my question was directed to the effect of section 6(3) on the characterisation or non-characterisation of this entity as the State.

MR KIRK: Well, first, we obviously put the proposition that something can have dual characters. That is fundamental to our case. It may be that section 6(2) and 6(3) would speak to the issue of whether it is regarded as falling within or without the reference to “State” in provisions such as 75(iv). But whether it does or does not is, in our respectful submission, a distraction when one accepts it can have dual character, because if it can have character as a trading corporation, the fact that it has another character, whether you call it a sporting body, a charity, or an instrumentality of government, does not address the real issue for 51(xx) purposes, in our respectful submission; remembering, it is not an immunity. If 51(xx) does not cover State qua State, it is not an immunity; it is just it does not cover them. But if it is a corporation, if the State has established a corporation, it can come within power.

For completeness, I should note that there are two other references to “incorporation” or such like within the Constitution. One is in 51(xiii), which is a reference to:

State banking extending beyond the limits of the State concerned –

but then:

the incorporation of banks –

So the Commonwealth has power over the incorporation of banks. That illustrates that it was understood obviously banks could be corporations. Then, section 44(iv), the disqualification provision for members of Parliament:

Any person who:

. . .

(iv) holds any office of profit under the Crown, or any pension payable –

Sorry, subsection (v), I apologise –

Any person who:

. . .

(v) has any direct or indirect pecuniary interest in any agreement . . . otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons –

The frame is unsurprising, in other words, understood that one can distinguish between corporations, referred to in 51(xx), and companies, groups which are also corporations but which do not exhaust the notion of corporations. I do that with a presage to what I am going to say about corporators; that is, a corporation need not have members or corporators, but I will come back to that.

Can I deal with a little bit of history then, if I may? I do not think there is any real dispute about the history, which a number of submissions address, but if I could take your Honours to the Work Choices Case, both for its own sake and to pull out a little bit of history; that of course is [2006] HCA 52; (2006) 229 CLR 1, and I propose to focus on the joint majority judgment. Can I start at page 74, so [2006] HCA 52; 229 CLR 1, page 74, paragraph 55 – just a passing point – in the fifth line in brackets, the majority note:

(Plainly, a foreign corporation is a corporation formed outside the limits of the Commonwealth.)

The distinction drawn there – not saying it is necessarily exhaustive, but the distinction drawn is, well, you have got corporations formed within the Commonwealth; foreign corporations formed outside. Paragraph 59 on page 75, first two sentences:

Constitutional corporations are juristic persons recognised by the law as separate from their corporators. Such juristic persons are able to act only through human actors.

If one jumps then to page 87, paragraph 91, the majority are here dealing with a core argument made by the plaintiffs there, particularly New South Wales, drawing a distinction between internal/external matters. At paragraph 91, their Honours note:

A distinction between “internal” and “external” matters . . . whether made at the point chosen by Isaacs J –

That is in Huddart, Parker –

or made at some other point, is a distinction that may have utility in the context of choice of law.

Then, if your Honours read down to paragraph 92, that is consistent with the proposition I put earlier that one has to recognise that cases such as Chaff & Hay, which I will come to, are not directed to the constitutional question. If one then turns to page 90, paragraph 97 – again the part within parentheses, fifth line – and consistently with what I just said about section 44(v) of the Constitution:

(The word “company” was used in the nineteenth century to refer to a group of individuals associated together for a particular purpose or purposes. The word “corporation” was used to describe a juristic person distinct from its corporators. It is convenient to maintain this distinction when dealing with the nineteenth century legislation.)

If I could then jump to page 94, paragraph 111, and by this point the majority is dealing with the drafting history and limited debates in relation to 51(xx). After the quote within 111, there is a reference to the 1885 Act and it then says:

But the proposals put to the 1891 Convention included the proposal that the federal Parliament have power over “The Status in any State of Foreign Corporations and Corporations formed in other States”.

There is then a quote from Sir Samuel Griffith, consistently with what Justice Isaacs was saying too. In fact, I think Justice Isaacs might have referred to that quote of Sir Samuel in Huddart, Parker. But what Sir Samuel was there talking about – well, we can trust the States to deal with such things as forms, fees, guarantees and so forth. He says:

I think the states may be trusted to stipulate how they will incorporate companies –

The majority note at the top of page 95 that:

As this reveals, the concern then being addressed was very narrow.

That concern in that first draft was status or recognition, in other words, giving the Commonwealth power to deal with status or recognition. That itself presupposes that the ipse dixit of the State could not be definitive, that it was for the Commonwealth on that first limited draft to – the very purpose of the power was to say, well, yes that is within the ballpark or not. Paragraph 113 reflects that point, first sentence. It was dealing with:

a problem about recognition of the status of artificial juristic entities –

Paragraph 114, first sentence, their Honours note that then we had financial scandals, particularly in Victorian land boom and, indeed, a deep recession in the 1890s. That led at paragraph 115 to a redraft in 1897 which first was – your Honours will see in the third line:

“Foreign corporations and trading corporations formed in any State or part of the Commonwealth”. Mr Barton said that the change had been made:

“So that the Commonwealth may have the power to legislate, not merely with regard to the legal status of corporations acting within the Commonwealth, but it may have power as far as it can legislate upon the general subject of these corporations –

So we would respectfully interpolate that what had previously been proposed was encompassed within it but there was much more as well. Then in paragraphs 117 and 118 there was reference to – actually, sorry, end of 116 to the last sentence of 116:

An amendment inserting “or financial” after the word “trading” was at once proposed and agreed, with next to no debate.

Thereafter there was:

no separate consideration –

but, paragraph 118 -

Mr Deakin, and others saw that national power was required over a wider field of law with respect to corporations than their status . . . the Convention Debates reveal very little about what those who framed the Constitution thought would fall within or outside the power.

That point is reiterated at page 97 in the last four lines of paragraph 119 about the impossibility of distilling any conclusion from the framers. In paragraph 121 there is a reference to two critical:

subsequent developments of fundamental importance which cannot be assumed to have been foreseen by the framers. First, corporations law was still developing in the last decade of the nineteenth century. There can be no clearer demonstration of that than the decision in Salomon’s Case. Only with that decision, in November 1896, did the courts fully grasp the implications of corporate personality . . . Secondly, the place of corporations –

has radically changed. Then over the page there is a reference in the last half of the paragraph to how things have evolved over the 20th and early 21st century, for example, doing away with the ultra vires doctrine, single member companies, change of capital requirements and so forth. That illustrates the proposition we sought to put earlier, namely, that this was something very much in a state of flux in dynamic development at 1900. In relation to foreign corporations - - -

HAYNE J: All that discussion was provoked by what is recorded at 124. In the first part of 124 it is made plain that it is dealing with the submissions made by the then plaintiffs about the intended reach of 51(xx).

MR KIRK: Yes. If I could take your Honours to page 112, still within the joint judgment, paragraphs 169 and 170, and their Honours – this is under a heading your Honours would see on a previous page, “The Tasmanian Dam Case”. Their Honours went through key cases and dealt with the plaintiff’s submissions on them. One of the judgments the plaintiffs relied on was that of his Honour Justice Dawson in the Tasmanian Dam Case. The last four lines of 169:

It is an approach which would read the power as confined to making laws with respect to the trading activities of Australian trading corporations and the financial activities of Australian financial corporations -

That is not what the power says. Then, 170 -

It is an approach that presents a particular difficulty with foreign corporations.

Down to the end of that paragraph, particularly that last sentence, which we would respectfully adopt about reading the power as a whole. Finally, within this case, if I could take your Honours to page 114, paragraph 177 and 178. In paragraph 177 their Honours refer particularly to what her Honour Justice Gaudron had said in Dingjan, and in 178 quoted what her Honour had said in Pacific Coal, and that, of course, is the key now accepted understanding of the scope of power.

What emerges from those two paragraphs, in our respectful submission, is that the activities of the identified types of corporations are identified as significant, indeed, the focus. Loosely, let us call them “business activities” as her Honour Justice Gaudron did. They are activities of particular persons. That being the nature and scope of the power in terms of what regulation it authorises, in our respectful submission, again, it should not being capable of being defeated by a self-characterisation provision such as section 6(2) which would defeat the power of the Commonwealth to regulate precisely those type of activities within the Australian economy and community.

That is all I wish to say about Work Choices. Dealing very briefly still with history, if I could take your Honours briefly to Quick and Garran - your Honours, I hope, have an extract of Quick and Garran, first at page 578. Now, this deals with section 51(xiii) relevantly, “Incorporation of Banks”. We would draw your Honours’ attention to the second-last paragraph on 578:

An Act of Incorporation is an Act creating an artificial or fictitious person, the peculiarity of which is that it has a legal existence separate and distinct from the individual units of which it is composed. Its members may change, but the corporate entity remains; it has perpetual succession and it never dies, unless its dissolution or winding-up is brought about by operation of law.

That is entirely consistent with and supportive of our submissions, in our respectful submission. Then at page 604, dealing with 51(xx), at the bottom of page 604 under the heading “Foreign Corporations”, the two authors noted:

A corporation has already been defined –

and referred to the note I have just taken your Honours to, and then a reiteration, this time seemingly by reference to Dicey. So we call that in aid. The only other text I will seek to take your Honours to is from James Grant, published in 1854, A Practical Treatise on the Law of Corporations in General, as well Aggregate as Sole - 1854 edition. There is an 1850 version of Grant – I am not sure if it is precisely the same, but what we found was the 1854 edition. If I can take your Honours to page 16, which is within Chapter 1, page 16, middle of the page, last five and a half lines, beginning:

The ideal being, called a corporation –

Now, if I could ask your Honours to read over the page to about point 3 – in other words, the end of that second paragraph on page 17.

GAGELER J: Is that a definition or a description?

MR KIRK: The first paragraph is a description, an historical description. But at the end of the second paragraph we come closer to a definition. The last sentence of that second paragraph on page 17:

But continuous identity, a name, (t) and a common seal, seem indispensible requisites to the creation of a corporation proper.

I will go on to submit that name is probably an aspect of separate identity, common seal is not necessary. The heart is continuous identity. Your Honours might also note the footnote, (t) - it is down at the bottom of the page, the second paragraph:

The expression continuous identity seems more correct than perpetual identity . . . because several corporations have been created originally for limited periods, as the Bank of England –

et cetera. We would respectfully say the same – that “perpetual succession”, that phrase commonly used, should not, for 51(xx) purposes, be taken to mean it has to be indefinite. It can still be an actor, a separate legal person acting in the economy and their community, even if it has only got a five-year life, a 20-year life or a 50-year life.

So the reason I take your Honours to Grant from 1854 is to illustrate that that respected author well understood, look, we have got specific but we have also got something more confined at the heart of the notion. Can I then take your Honours to a case all the parties cite and that is Chaff and Hay Acquisition Committee v J. A. Hemphill and Sons Pty Ltd [1947] HCA 20; (1947) 74 CLR 375? Now, the issue in the case was identified by his Honour the Chief Justice in the first two lines of his judgment at page 382:

The question which arises upon this appeal is whether the Chaff and Hay Acquisition Committee constituted under the Chaff and Hay (Acquisition) Act 1944 (S.A.) can be sued in the Supreme Court of New South Wales. The committee was sued upon a common money count and in assumpsit.

Rather than going through – for time reasons I will not go through all the sections, if I can take your Honours to the Chief Justice’s summary at page 384 at about point 7. His Honour says:

Consideration of the terms of the Act shows, therefore, that the committee is not a temporary body. The Act does not give the committee only a limited life. It continues in existence until it is dissolved by some means -

Down to the end of that paragraph, his Honour says -

it must be held that the committee is a legal entity in South Australia distinct from the persons composing it from time to time, with property, rights, and liabilities which belong to it and not to those persons -

Then at the top of 385 -

But it was pointed out that the ordinary words used for the purposes of bringing about incorporation did not appear in the South Australian Act –

and then a reference to an English Court of Appeal decision from 1927 -

But even if it should be held that the committee is not a corporation, the provisions of the South Australian Act show that it is a statutory person, a persona ficta created by law. It is a subject of rights and duties. A body which, as distinct from the natural persons composing it, can have rights and be subject to duties and can own property must be regarded as having a legal personality, whether it is or is not called a corporation.

Now, pausing there, it did not matter for the point at issue in the case whether the label “corporation” was applied or not, and that is what his Honour was indicating. It does not matter whether we apply that or not. His Honour does not actually say it was not a corporation, and what we respectfully submit is what his Honour is identifying there is the heart of what a corporation is for constitutional purposes, recognising he was not dealing with that issue.

In the next paragraph beginning “If the committee is a legal entity”, his Honour goes on to apply English choice of law principles about recognising foreign corporations or bodies “analogous to an English corporation”, to pick the quote in the third last line from another English decision. So his Honour in effect was - in the complex context, in effect treating it as or something very much analogous to a corporation. If I could take your Honours then to his Honour Justice Starke at page 388, at the top of the page, his Honour says:

The South Australian Act does not explicitly create the Chaff and Hay Acquisition Committee a corporation.

Then his Honour identifies the “characteristics of an English company” and lists six criteria, and I will come back to say something about each of those a bit later. But then his Honour notes:

“one would have expected –

if it had been intended to be incorporated to use –

the well-known precedents . . . express words of incorporation” -

Then in the next paragraph -

The Committee is a statutory body authorized to acquire certain property which is vested in it in its collective name, to dispose of that property and to sue and be sued but it has not been created a corporation according to the requirements of English law in force in South Australia.

His Honour there is obviously harking back to those six characteristics identified from an 1850 edition of Grant, as well as another text. But then his Honour goes on:

But that is not decisive, for recognition is given in the case of companies or artificial persons which have come into existence in countries whose law of incorporation is based on principles different from those of England and Australia.

So we say his Honour recognises the broader context. Then at page 389, just under where it says “Starke J”, his Honour says:

Be this as it may “the essence of incorporation according to English law is the bringing into existence of an entity with status as a person and capacities distinct from those of its members” . . . or in other words ownership and liability separate and distinct from its members.

Then his Honour goes on to say it:

has many of the characteristics and attributes of a corporation.

and lists them, and then says:

But it is said that the Committee is not a corporation in the strict technical sense according to the principles of English law - - -

HAYNE J: What are the principles of English law to which his Honour is to be taken as referring in that passage? Yes, you can see what Grant says, but is it more than that?

MR KIRK: No, I think, in our respectful submission, it is what his Honour has enumerated at the top of page 388, those six characteristics, and his Honour goes on to say - - -

HAYNE J: Because those are statutory characteristics, are they not, rooted in various forms of legislation which permitted persons to join together and seek a statutory consequence called “incorporation”.

MR KIRK: Precisely so, with great respect, and it illustrates again, perhaps with respect to his Honour Justice Starke, how sometimes we assume to be general law or common law what in fact is statutory law. In any event, his Honour appears to have taken that from a text, from Grant, but in fact Grant, of course, was referring back to English law as fundamentally established by a statute whilst recognising, to be fair, that Grant was writing in 1850 prior to the 1862 Act of England, and so forth. I think I have to acknowledge that.

In any event, although his Honour says it is not technically according to the principles of English law a corporation, when one looks at what his Honour says about the essence of incorporation, it was, and his Honour so treated it as, a body capable of being sued, et cetera. That reference to the essence of incorporation again is consistent with and supportive of what we seek to put as to the appropriate understanding of the scope of the power, recognising again his Honour was not dealing with that issue.

His Honour Justice McTiernan dissented; that is to say, he held that the committee could not be sued in New South Wales. His Honour essentially saw it not creating a separate person, so I will not deal with his Honour. Then, Justice Williams, finally, if I could go to page 395, about point 3, the fifth line of that second paragraph:

The Act does not expressly incorporate the committee or provide for a common seal. It is not therefore a corporation in the strict sense. But it can contract to buy and sell chaff and hay as a corporate body, and the chaff and hay and other property which it acquires for the purposes of the Act becomes the property of the committee as a corporate body.

Then right at the bottom of the page:

Thus the effect of the Act is to create for certain purposes an artificial corporate entity which is separate and distinct from its individual members.

Reiterated again at about point 5:

I agree with the opinion of the majority of that Court.

That is the court below:

The effect of the Act is, in my opinion, to form the committee into a separate corporate body from that of its members for the purposes of the Act. It has the corporate powers already mentioned.

So, once again his Honour, much like his Honour Justice Starke, is saying, all right, well, it does not expressly incorporate the committee as a corporation and perhaps it is not a corporation in the strict sense, as his Honour understood it at that time, but it was a body corporate, and that reference and recognition of an artificial person being a body corporate, again bespeaks the sort of notion we seek to invoke in 51(xx).

Next, if I can take your Honours to two industrial cases. First, Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30. The main judgment is that of his Honour Justice Fullagar, with whom Chief Justice Dixon and Justice Kitto agreed. If I can take your Honours to page 51, this was a complex set of industrial related matters. At the bottom of page 51, Justice Fullagar notes that - the issue his Honour goes on to deal with here is whether, first, the Waterside Workers’ Federation and, secondly, the Hobart Branch of the Waterside Workers’ Federation could be sued and an application had been made to strike them out as not being bodies corporate capable of being sued. If I can then go to page 52, right at the top, his Honour says:

So far as the federation is concerned –

so that is the federally registered union –

the position seems to me to be clear enough -

the then federal Act -

under which it is registered as an “organization”, gives to it what I would not hesitate to call a corporate character - an independent existence as a legal person. It is given a personality, which is distinct from that of all or any of its members, and which continues to subsist unchanged notwithstanding the changes which are bound to occur from time to time in its membership -

and then a reference to Jumbunna -

What is now s. 136 of the Act provides that every registered organization –

has, if I can summarise, perpetual succession, common seal, may own, deal with property -

This provision [136] alone is, in my opinion, quite enough to give to a registered organization the full character of a corporation . . . Then s. 146 provides that “any organization may sue or be sued for the purpose of the Act in its registered or other name” . . . But it seems clear enough that s. 146 is complementary to s. 136, and that a true corporate character is obtained by registration.

HAYNE J: Well, central to that was a passage you omitted which is:

The notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not.

About point 5 of the page. That is the hinge about which the reasoning turns, is it not?

MR KIRK: Your Honour is right, I should not have omitted the words. I apologise. At the bottom of the page, the last three lines:

I have regarded the question of the status of the federation as entirely a matter of the construction of the Commonwealth Act, and as in no way depending on the well-known decision of the House of Lords in the Taff Vale Railway v. Amalgamated Society of Railway Servants and the numerous cases in which it has been applied or acted upon in England.

Pausing there, I take your Honours to this part because the first defendant and a number of the State attorneys place significant reliance on Taff Vale and its follow up in the 1950s, Bonsor v Musicians’ Union, and what his Honour Justice Fullagar said at about - just in fact right next to his Honour’s name:

The difficulties involved in them –

i.e. the numerous cases applying or acting upon Taff Vale -

are formidable.

His Honour then quotes Justice Farwell, the trial judge in Taff Vale, who was approved by at least some of the Lords, and then after the quote at about point 4 to 5:

It appears from this passage that Farwell J. was not prepared to describe the body in question as a “corporation”, though he attributed to it essential characteristics of a distinct juristic person. With all respect to what is said by some of the learned Lords in Bonsor v. Musicians’ Union, one would think that a registered trade union either had or had not a personality distinct from that of its members –

That resonates with the sentence your Honour Justice Hayne pointed out I omitted. Then towards the end of that paragraph his Honour notes – the last six lines:

But it is sufficient to say that the position under the Commonwealth Act seems to me to be clear. The language of that Act is far more explicit than . . . in the Taff Vale Case. It is, of course, perfectly consistent with the possession of legal personality that the capacity of the “persona” should be limited -

I note that we would seek to invoke that particular passage in support of the proposition that just because, for example, QR is subject to some limitations on what it can do and some powers of direction and so forth that is a distinct issue from whether or not it has corporate personality.

HAYNE J: But until recently a corporation incorporated under the Companies Act had limitations provided by the ultra vires - - -

MR KIRK: Precisely so.

HAYNE J: The fact that it could not lawfully do certain things was interesting but productive of much fruitful litigation.

MR KIRK: Indeed, remunerative litigation.

HAYNE J: Alas.

MR KIRK: Indeed, if you had asked an English lawyer 50 years ago is that fundamental to a corporation, they may well have said yes, that is a fundamental part of English law. It is not a fundamental part of Australian constitutional law, however. At the bottom of page 53, his Honour turns to deal with the “Hobart Branch”:

The position with regard to the “Hobart Branch” is inherently more difficult, but, in the end, I think, not less clear.

Why? Because -

It is plain that the “Hobart Branch” has no corporate character-no separate legal existence as a juristic person.

Then at about point 5, having referred to some rules dealing with the Hobart Branch -

These Rules do not appear to me to solve the problem created by the most fundamental of the differences between a corporation and an unincorporated society. That fundamental difference is that a corporation has “perpetual succession”: it maintains its identity and its personality notwithstanding changes in its membership, which may occur from day to day. Its property does not belong to its members –

and so forth.

FRENCH CJ: This is all going to the proposition really which starts, I think, at paragraph 6 of your outline describing:

the core of the notion . . . is an artificial entity with distinct legal personality.

MR KIRK: Yes. It is all just conjecture - - -

FRENCH CJ: What is the distinct – what is the content of the distinct legal personality limb of that definition?

MR KIRK: That it is – it comes down to what I was seeking to put before, that it is a thing, a being formed pursuant to law, capable of having rights and duties, powers, liabilities and so forth, capable of engaging in activities such as to be a subject of law and such as to be a subject of federal regulatory power.

FRENCH CJ: Well, it would suffice to say – this comes back to 6 and 7 – that it is an entity, an artificial entity, an entity created by statute with all the powers of an individual.

MR KIRK: But that is not necessary in our - - -

FRENCH CJ: No, no.

MR KIRK: It is certainly sufficient but - - -

FRENCH CJ: Yes.

MR KIRK: - - - absolutely that is sufficient. Sorry, it is not necessary but it is sufficient. Yes, absolutely so.

FRENCH CJ: Does the concept of legal personality add anything to that notion?

MR KIRK: Yes. I think we need to say that for the reason just identified by Justice Fullagar that at the heart of the notion is that it is distinct from members – if it has them, corporators, if it has them, the body creating it if it is a statutory entity. It is its own thing. So, for example, when Chaff and Hay Committee was sued, it was not the four members of the committee being sued as such, it was not their houses on the line. It was the assets of the committee. When the Waterside Workers Federation was sued in conspiracy, as it was, it is the assets of the union which are on the line, not the members.

FRENCH CJ: So does “legal personality” mean anything different from having the capacities of a person or treated as a person by law?

MR KIRK: Without necessarily meaning all the capacities of a person, that is the heart of it, yes, your Honour.

HAYNE J: Well, is the analogy useful? The moment you analogise to a person have you not introduced an unnecessary element in the analysis? Is it not enough that it is a right and duty bearing entity distinct?

MR KIRK: Yes, is my answer to that. The analogy and, indeed, of course, it is common legal language to say that it is a legal person but I accept the force of what your Honour puts to me and one can think about the beginning of life of a human person or the end of a life of a human person. They are a human person but they have got restricted capacity. It is quite different, quite different from a corporation.

FRENCH CJ: Into a metaphysical realm but if one takes the proposition that Justice Hayne just put to you do the words “legal personality” add anything?

MR KIRK: Only that it is a distinct legal entity but apart from that, no, I do not think so, your Honour. It is a distinct legal entity created pursuant to law. In Williams v Hursey I should note for completeness, so far as we could see the other two members of the Court who wrote, Justices Taylor and Menzies did not address this issue in any significant way. The other industrial case I wanted briefly to refer to is Re McJannet (1995) 184 CLR 620.

HAYNE J: With a view to getting what out of McJannet? I am not saying there is not lots of gold there, but what is the particular gold you say you would be searching for?

MR KIRK: Along the lines of what I have just shown your Honours from Williams v Hursey. It is not definitive. It is not a constitutional case but it is grappling with the same sort of issue. Could I briefly – I might just take your Honours directly to the second plurality? There were two pluralities. The second one is that of Justices Toohey, McHugh and Gummow. The issue here is complicated but, in essence, the Queensland branch of the federally registered union had gone and registered a State union under the State Industrial Relations Act.

The question arose – well, given that the Queensland branch of the federal union is not a distinct corporation, can it go off and register under the State Act and, if so, what is the significance and the answer of the Court was, yes, it could under the Queensland law and that the Queensland registered union was its own distinct entity under State law. That was the context. In terms of the discussion, if I could take your Honours to page 660 – actually, 659, within the second plurality judgment, at about point 7, their Honours say:

Involved in this aspect of the case are some basic issues concerning the attribution, by the general law (including the rules of private international law) and statute, of legal personality.

Then the next paragraph too, and then there is a reference to a work by Professor Ford. Then jumping over to 660, after the quote from Professor Ford:

In the present case, the particular aspect of the law of legal personality which is involved concerns the creation by the domestic legislature of an entity which is a “corporation” or, more precisely, has been endowed with that characteristic which Fullagar J identified as the most fundamental difference between a corporation and an unincorporated body. This is perpetual succession, described by his Honour –

et cetera. So their Honours approved what his Honour Justice Fullagar said. Then at page 661 at the top of the page their Honours note what Justice Fullagar had said about Taff Vale, and then in the second paragraph say:

It will always be a question of whether, on its true construction, the statute creates or provides for the creation (eg, by registration) of a body with a legal personality distinct from that of its members.

Then on page 663, their Honours note towards the bottom of the page “it is unhelpful to speak of the Queensland Branch” because there is no such “distinct . . . entity”. Then at the top of page 664:

It is true that the legislature may modify what would be considered orthodox notions of the nature of a corporation. In the same way, it may modify the general accepted characteristics of a private trust, by, for example, creating a trust for statutory purposes, with no ascertained beneficiary to enjoy beneficial ownership.

Further, the legislature may provide for the creation of a body which, as distinct from the natural persons composing it, has legal personality, whether or not the legislature chooses to identify its creature by the term “corporation”. Indeed, s 58 of the 1904 Federal Act was, as we have indicated, construed as having that effect even though the term “corporation” was not used in it. The creation of a distinct legal personality flowed from the endowment of registered organisations with perpetual succession, capacity to purchase and deal with property and the requirement of a common seal.

HAYNE J: But all this discussion is in the context of a group of human actors who together have joined in an enterprise, an activity, in which there is said to be some separate entity and the Court is here concerned with the distinction between the corporators – that is the individuals – and the corporation they create. That is, it is the problem of the old British Stock Exchange whether the members were separate from the exchange, did the exchange exist, and so on. But here, where there are no corporators, where the board is expressly said not to be the constituent elements of the authority, what do we get out of these cases?

MR KIRK: Just illustration of, again, a searching for what we really mean by having a body corporate or a corporation, namely what they have described there as “legal personality” but which they then go on to explain means that separation from members, from corporations and so forth, a distinct artificial entity. Again, it throws some, albeit limited, light on the issue.

In that light, and having dealt with it, I have now finished dealing with Re McJannet, can I come back as I said I would to discuss those six characteristics that, for example, Justice Starke identified in Chaff and make some submissions about the significance of those for 51(xx). So that was the list in Chaff at page 388 point 1, but your Honours need not go back to it.

Now, the first was “perpetual succession”. In our respectful submission, we would not put that as part of the heart of the notion. It is really in a sense not a separate requirement but part of what we have sought to articulate as a separate juristic person because it means it is separate from human persons, it does not depend upon some human life continuing in existence. It is not just another name for a human person, it is a separate being. As regards “perpetual”, we would adopt what Grant said that even then continuous identity, perhaps only for a limited period - - -

KIEFEL J: Was “perpetual succession” as a criterion brought in to distinguish entities where membership in the group changed from time to time?

MR KIRK: Yes, I think that is right, your Honour, and in so doing to illustrate that this is a distinct entity. So, when one sues a union, it does not matter that the membership is different today to what it was yesterday. When one sues BHP it does not matter that the membership is different today than what it was yesterday.

FRENCH CJ: I think Holdsworth spoke of a flock of sheep; when the sheep come and go the flock remains.

MR KIRK: Yes, indeed, your Honour. Secondly, in relation to a name, in substance, insofar as this is relevant, it is because it is an aspect of being a distinct legal entity. We would not go so far as to say it is an independent requirement because it may be that some future parliament might forget to get around to giving a name to the new entity created. It is an aspect, really, of being a separate person.

As to common seal, which Grant did mention as one of his three key elements – first, as a matter of fact, we do not accept that QR does not have a common seal. Section 8(2) of the Act certainly envisages it, but in any event, it is not an essential element. Grant was writing in the 1850s. The framers of our Constitution envisaged that communications within Australia would take place not only by post, telegraph and phone, but by other like services. In that context, one would not readily see a requirement for a seal to stamp pieces of paper manifesting legal intention as being essential.

HAYNE J: But is not the reference to “common seal” no more than it must have a means of signifying its assumption of rights and duties?

MR KIRK: Insofar as there is any substance to it, that must be it, your Honour, yes. In our primary submissions, without taking your Honours to it, we have referred to a judgment of Justice Dixon in a case called Johnsons Tyne Foundry, indicating that in any event, for trading corporations, seals were not seen as necessary for entering contracts, because it was part of their day-to-day activities.

Next, Justice Fullagar referred to authority to hold property and to sue and be sued in the corporate name. In our respectful submission, these may be indicia of being an independent legal entity. It comes back to what I have said ad infinitum about being capable of having rights, duties, liabilities and powers. But it does not have to be any particular set.

As the discussion about ultra vires reveals, the set may wax and wane over time and it may be different for different types of companies. The powers and the degree of regulatory control of a bank is different from the degree of regulatory control over a superannuation trustee, which is different to a proprietary limited company, and changes over time.

Next in Justice Fullagar’s list was an ability to make by-laws, which is not in Grant’s list. The meaning of this is perhaps not entirely clear, at least to a modern eye, but appears to mean by-laws for the governance of the corporation, in particular, the members. That, of course, assumes that there will be members and yet, as a number of the submissions bring out, corporations sole have long been recognised as part of Anglo-Australian law. In any event, any legal person can adopt a policy on how they choose to act, or adopt a rule as to how they choose to act or how they manifest their intent.

KIEFEL J: Is it possible that it is more likely intended to revert to municipal corporations?

MR KIRK: Yes, there is a reference, and I apologise to your Honour, I cannot recollect which it is – but one of the old cases – my friend says it might be Isaacs in Huddart, Parker, but I think that 17th century case, the name of which I forget – there is a reference to that sort of issue. But in some other cases, I think it is the Conservators of the River – whatever it is, I apologise, I cannot remember it – Tone – but in other cases, there appears to be a reference to by-laws for members and that is a possible ambiguity. That itself illustrates why, in our respectful submission, it is not an essential aspect.

That brings me finally to corporators - the Commonwealth has made written submissions on this which we respectfully adopt. This was not in Justice Starke’s list. It was not in Grant’s list. Again, there may be some ambiguity as to what is meant by “corporators”. Sometimes it is used to mean originating members and sometimes it is used to mean members. Again, it is inapposite in relation to corporations sole.

If it was required it would exclude all governmental corporations including, for example, the Hydro-Electric Commission of Tasmania or the State Superannuation Board of Victoria as they were when they existed at the time of litigation. It also would arguably be inconsistent in substance with single shareholder companies. If by this reference to “corporator” what it really means is something like having someone who controls the entity, who manifests its intent, who exercises its rights and powers, who answers its duties and liabilities then, yes, of course, a corporation must have some such controlling body, otherwise it cannot do anything.

If I can take your Honours briefly to the written submissions of QR at page 17 under the heading “First Defendant is not a corporation”, my learned friends at QR give three reasons why they say QR is not an incorporation. Paragraph 64:

First, nothing in the QRTA Act expressly provides that QR is to be incorporated.

Well, even under English law express provision was not required. They go on to say –

Secondly, there is no necessary implication that the QRTA Act forms a body corporate –

and then place great reliance on subsection 6(2).

FRENCH CJ: Section 6(2) – I think I.....before that I wondered whether it had any interaction with Queensland statute law and I have in mind as an example section 46 of the Queensland Interpretation Act which provides that:

A provision of an Act relating to offences punishable on indictment or summary conviction applies to bodies corporate as well as individuals.

So there would be a legal consequence for that statement within the framework of the Queensland system. It may be that there are other examples, I do not know.

MR KIRK: Yes – that may well be right, with respect, and I will look at that overnight if I may. That may give legal significance to section 6(2). Otherwise, and as regards the constitutional issue, it is very hard to see what the provision does, what legal effect it has. It is hard not to think that it is not directed to the Court considering this very issue where a clear purpose, an absolutely clear purpose of the Act and of the Parliament is to remove State employees of QR – sorry, let me start that again – is to remove employees of QR from being subject to the Fair Work Act and subjecting them to the State Industrial Relations Act.

In relation to this submission at paragraph 65, I sought to answer that really – that the self-characterisation could not work and it may well be that it follows from what your Honour the Chief Justice has said that section 6(2) has other work to do and that this is a matter to be judged objectively. Paragraph 66, thirdly, they point to three characteristics which they say –

typically belonged to corporations.

Your Honours will note they do not say “necessarily” belong to corporations, and that is:

It does not have corporators . . . Nor does it have a common seal or the ability to make by-laws –

As to each of those we say they are not essential – as to corporators, it has got creators, or a creator, the Parliament. It has controllers – the board, directed from time to time by the responsible Ministers. It is not established, it does not have a common seal as a matter of fact. The Act implies it might, even if it is not essential. As to the ability to make by-laws it has, for example, a board charter and such like, which are referred to in the special case but in any event it is not essential.

FRENCH CJ: That might be a convenient moment.

MR KIRK: If I could just - one more sentence – for all those reasons, it is a corporation.

FRENCH CJ: Thank you. The Court will adjourn until 10.15 tomorrow morning.

AT 4.14PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 4 FEBURARY 2015