Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11

This case is often mistakenly cited by OPCA adherents as evidence that all governments and their departments are corporations, and therefore they can refuse to “contract” with them.

A popular myth is added, which is that this case states that any entity with an Australian Business Number (ABN) is a trading corporation within the meaning of section 51(xx) of the Constitution.

As in the submissions in Cardinia Shire Council v Kraan [2017] VMC 24, to which the court responded it has no relevance to the prosecution or the criminal charges against the accused:

“HCA 11 of 2015, the High Court ruled in relation to Queensland Rail – “It did not matter if they are a Government Entity, if they had an ABN and provided services for money they were a Trading Company and subject to section 51 ss 20. If you have an ABN, and Cardinia shire does, and you employ people, you are a Company”

Unfortunately for this assertion, the words “Australian Business Number” or “ABN” do not even appear once in the entire case, and the premise that an ABN makes an entity a corporation has well been disposed of in other cases, such as in Williamson v Hodgson [2010] WASC 95, and O’Connell v The State of Western Australia [2012] WASCA 96:

“An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover over a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN. An ABN holder may be an individual, a corporation, a partnership or government entity. A person or entity does not become a corporation simply because that person or entity has an ABN.”

A similar contention has been raised in many cases, such as since the Department of the Attorney General has an Australian Business Number (ABN), the courts have effectively become corporations. (See Palmer v City of Gosnells [2013] WASC 446, O’Connell v The State of Western Australia [2012] WASCA 96) The State of Western Australia is a corporation due to their having an ABN (See Palmer v City of Gosnells [2014] WASCA 102, Hedley v Spivey [2012] WASCA 116) the Department of Planning and Infrastructure is a corporation due to their having an ABN (See Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289) the Police are a corporation due to their having an ABN (See Williamson v Hodgson [2010] WASC 95) You can locate further cases involving ABN’S on this website under the Tag “Australian Business Number (ABN)” and in the article Australia is NOT a foreign corporation registered with the U.S. S.E.C. 

The important difference between Queensland Rail and other State Government departments, is that it is actually an entity registered with ASIC as a company limited by shares, while trying to avoid such an entities obligations to federal Industrial Relations policies under the Fair Work Act 2009 (Cth). The decision is not at all surprising when one takes this into account.

However, one cannot apply this decision across the board to all government departments, as they are mostly not considered corporate entities as they are not registered with ASIC as a company limited by shares.

Click to access communications-electrical-electronic-energy-information-postal-plumbing-and-allied-services-union-of-australia-v-queensland-rail-2015-hca-11.pdf

.