R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8

High Court of Australia McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ. R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8

ORDER Order nisi for prohibition discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1970, March 24 McTiernan J.

In my opinion, none of the provisions of the Trade Practices Act 1965-1968 Cth is repugnant to Ch. III of the Constitution, and the establishment of the Trade Practices Tribunal is not open to attack on the ground that the members are not given by the Act the specific tenure enacted by s. 72 (ii.) of the Constitution.

The proceedings to which the order nisi for prohibition relates were instituted under s. 47. The validity of this section is not impugned. The institution of proceedings under s. 47 is a ministerial act. The provisions of the Act which are called in question on the ground that they are repugnant to Ch. III begin with s. 49. In my view, the nature of the function assigned by this section cannot be properly understood without reading with it ss. 47 and 51. These sections are in Pt VI of the Act, the heading of which is: "Examination of Agreements and Practices by the Tribunal." Section 47 limits the Tribunal's function of "examination" to (1) agreements which the Commissioner has reason to believe are examinable agreements and which he is of opinion contain restrictions contrary to the public interest; and (2) to practices which he has reason to believe are examinable and are contrary to the public interest. The proceedings now in question were instituted in respect of monopolization, a term defined by s. 37 and an examinable practice referred to in s. 36. The institution of the proceedings is within s. 7A of the Act. The effect of s. 49 is to interpose a quasi-judicial inquiry by the Tribunal between the Commissioner's consideration under s. 47 and the operation of s. 51 (which depends upon the determination under s. 49). The execution of the mandate given by the section to the Tribunal involves adjudication. But it is commonplace in the field of administrative law that adjudication is not distinctive of judicial power exclusively: and it is not necessarily inconsistent with true executive or administrative action.