The High Court has decided a constitutional matter involving members of ten Queensland unions who were employed by Queensland Rail Ltd. Those unions had concluded two industrial relations agreements with Queensland Rail Ltd under the Fair Work Australia Act 2009 (Cth). The enactment of the Queensland Rail Transit Authority Act 2013 (Qld) established the new Queensland Rail authority that now employees these workers, and the new authority considers itself to be not by the Fair Work Act but rather the Industrial Relations Act 1999 (Qld) on the basis that s 6(2) of the QRTA Act explicitly states that Queensland Rail is ‘not a body corporate’. The unions sought to show that the Fair Work Australia Act 2009 (Cth) applies to Queensland Rail on the basis that it is a constitutional corporation or trading corporation under s 51(xx) of the Australian Constitution. They contended that Queensland Rail is a constitutional corporation despite s 6(2) of the QRTAA (which states that it is not a body corporate) on the basis that it has several other attributes of a corporate entity, and that it is a trading corporation on the basis that it was established to carry on a commercial enterprise, that its trading activities are significant and substantial, and that they are integral to its operations, and consequently under s 109 of the Australian Constitution, the Fair Work Act will apply to the exclusion of both the QRTAA and the Industrial Relations Act 1999 (Qld). Queensland Rail contended that Parliament’s intention (expressed in s 6(2)) was central to resolving the question.

The High Court unanimously held that Queensland Rail was a trading corporation within the meaning of s 51(xx). The joint judgment (French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ), after noting that it was not necessary either to exhaustively defined ‘corporation’ ([15]) or limit the term’s meaning to the kinds of artificial legal entities existing at the time of federation (see [17] [22]), rejected Queensland Rail’s argument that whether or not it was a corporation turned only on whether Parliament ‘intended’ to create a corporation ([23]). Because that argument gave no content to the definition of a corporation itself, it was an intention ‘of no fixed content’ and was incapable of providing any ‘satisfactory criterion for determining the content of federal legislative power’: [23]. The joint judgment then rejected Queensland Rail’s submission that a distinction between bodies corporate and ‘other artificial legal entities’ could be supported in the QRTA Act, and held that given it should not be understood as creating ‘a genus of of artificial legal entities distinct from what s 51(xx) refers to as “corporations”‘ (at [30]). After reviewing several authorities, the joint judgment held, at [38], that Queensland Rail was a corporation:

Like the Federation considered in Williams v Hursey, the Authority is created as a separate right and duty bearing entity. It may own, possess and deal with real or personal property. It is an entity which is to endure regardless of changes in those natural persons who control its activities and, in that sense, has “perpetual succession”. Its constituting Act provides for mechanisms by which its assumption of rights and duties may be formally recorded and signified. The Authority has “the full character of a corporation”.

Given that the QRTA Act established Queensland Rail’s functions as including managing railways, controlling railway stock, providing rail transport and passenger services, and because of its dividend, reporting and tax obligations to the Queensland Government, it was clear that Queensland Rail was a ‘trading corporation’ (see [41]). Gageler J issued a separate judgment, concurring that Queensland Rail was a trading corporation (see [68]–[74]) but would have answered the first and third questions ‘yes’ (cf the joint judgment’s answer to question 2 and circumscribed response to question 3, outlined at [46]).