Js Mcmillan Pty LTD V Commonwealth (1997) 147 ALR 419: The Trade Practices Legislation and Government Immunity
| Date | 01 June 1998 |
| DOI | 10.22145/flr.26.2.7 |
| Published date | 01 June 1998 |
| Subject Matter | Comment |
COMMENT
/S
MCMILLAN
PlY
LTD V
COMMONWEALTH
(1997)
147
ALR 419: THE TRADE PRACTICES LEGISLATION
AND
GOVERNMENT
IMMUNITY
Nick
Seddon
INTRODUCTION
Despite the rhetoric of the level playing field
and
competitive neutrality
when
government commercial activities are the focus of attention, there are some serious
gaps
in
the application of the
trade
practices legislationlto governments
and
government
bodies. The problem stems from the sections
in
the relevant Acts which
provide
that
the legislation binds the
Crown
in
so far as it "carries
on
abusiness".2
Until/S
McMillan
Ply
Ltd vCommonwealth,3 there
had
been no close attention
paid
to
the meaning of these
words
in the context of this legislation.4The expression "carryin§
on
abusiness"
and
similar phrases have been considered
in
avariety of other contexts
but
these
provide
little guidance
on
the extent to which the trade practices legislation
should
bind
governments.
1
2
3
4
5
Included
here
the
Trade
Practices Act 1974 (Cth),
the
State
and
Territory Fair
Trading
Acts
and
the
State
and
Territory
Competition
Policy Reform Acts.
Trade
Practices Act 1974 (Cth), ss 2A
and
2B,
Fair
Trading
Act 1987 (NSW), s 3
and
each
State
and
Territory
Competition
Policy Reform Act, s13.
(1997) 147 ALR419.
In
Thomson Publications (Australia) Pty Ltd v
Trade
Practices
Commission (1979) 40 FLR 257
it
was
held
that
the
Trade
Practices
Commission
was
not
bound
by
the
Trade
Practices Act
because
it
was
not
carrying
on
abusiness,
without
any
discussion
of
what
the
crucial
phrase
does
mean.
In
National Management Services (Australia) Pty Ltd v
Con1mon7,vealth
(1990)
9BCL 190
it
was
held
that
the
Commonwealth
was
not
carrying
on
a
business
and
so
was
not
bound
by
the
Act
when
involved
in
a
building
development
for
the
provision
of
office
space
for
Commonwealth
purposes.
See N
Seddon,
Government Contracts:
Federal,
State and
Local
(1995)
at
182-88 for a
discussion
of
the
case law.
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