Case: Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation [1992] HCA 53 ; (1992) 175 CLR 442
Outcome: considered
The Arts Victoria Act 1972 (Vic) creates the office of Director, Arts Victoria, and provides for the appointment of a body called the Victorian Council of the Arts. Section 4 of that Act provides, in relation to the Department of Premier and Cabinet: 'The objects of the Department under this Act are&#8722; (a) to develop and improve the knowledge understanding appreciation and practice of the Arts in Victoria; (b) to increase the availability and accessibility of the Arts to the public of Victoria; (c) to encourage and assist in the provision of facilities to enable the Arts to be performed or displayed; (d) to continually survey and assess the position of the Arts in Victoria and to report to the Parliament at least once in every year on the condition of the Arts in Victoria and to suggest ways in which the Arts may be further and better assisted; (e) to administer the Acts and enactments for which the Minister is responsible; (f) to advise and co-operate with other Departments of the Government public statutory authorities municipalities and other persons or bodies concerned with the promotion or practice of the Arts in Victoria.' 24 It is clear that the Trust is not a State Government department, for the purposes of the phrase 'State Government Departments and Instrumentalities' in the award clauses with which this case is concerned. There is a clear contrast between the Trust and Arts Victoria, which is described as a division of what is undoubtedly a State Government department. The test for determining whether a particular body is an 'instrumentality' of a State, within the ordinary meaning of that term, is found in Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation [1992] HCA 53 ; (1992) 175 CLR 442 at 448, where the High Court said: 'It is well settled that union eligibility rules are to be interpreted liberally and according to their ordinary and popular meaning. However, the expression "State instrumentality" is one that carries much the same meaning in popular usage as in a legal context. That meaning directs attention to the purpose or end served, so that a body is a State instrumentality if it is empowered to and does, in fact, serve some State government purpose. And that is so even if it is neither a servant nor an agent of the State.' [Footnotes omitted] 26 In the Anti-Cancer Council case, the court held that the Anti-Cancer Council of Victoria ('the ACCV') was not a 'State instrumentality', within the meaning of that expression in a trade union's eligibility rules. The ACCV was not under ministerial control. Its only function that might have been described as serving a State Government purpose was the receipt of reports and the keeping and compiling of a register, for which the ACCV received a small amount of government funding. Significantly, there was no obligation imposed on the ACCV with respect to the reports it received or the cancer register. The court held that the ACCV fell within another limb of the rule of the trade union in question, which defined those eligible for membership. 51 Counsel for the respondent attempted to rely on the capitalisation of the initial letter of the word 'Instrumentalities' in each of cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award, as well as in the earlier Victorian award, as indicative that a particular meaning of the word had been intended. Capitalisation of the initial letters of words in headings is a common practice. Inappropriate capitalisation of the initial letters of words, when not used in headings, is also common. It is unlikely to indicate the use of a term of art. In any event, if a conscious decision had been made to use the word 'Instrumentalities' as a term of art, the option of defining it in the award was available. It is unlikely that whoever drafted the 1994 Award made a conscious decision to use a term of art, and to indicate that a term of art had been used solely by the use of an initial capital letter. I do not accept that the fact that the word 'Instrumentality' has a capital initial in the 1994 Award and the earlier Victorian award that replaced it can be said to be indicative of a term of art. This is so, even when the word is contrasted with the word 'instrumentality' in the clause considered by the High Court in the Anti-Cancer Council case.