¹ Included here the Trade Practices Act 1974 (Cth), the State and Territory Fair Trading Acts and the State and Territory Competition Policy Reform Acts.

² 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, s 13.

³ (1997) 147 ALR 419.

⁴ 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 a business, without any discussion of what the crucial phrase does mean. In National Management Services (Australia) Pty Ltd v Commonwealth (1990) 9 BCL 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.

⁵ See Seddon, N, Government Contracts: Federal, State and Local (1995) at 182-88Google Scholar for a discussion of the case law.

⁶ The same applies to the New South Wales government under the Fair Trading Act 1987 (NSW) which in s 3 uses the same form of words in providing for the extent to which the Act binds the Crown in right of New South Wales. All other Fair Trading Acts bind their respective Crowns without the qualifying words “carries on a business”.

⁷ Hilmer, F, Rayner, M and Taperell, G, National Competition Policy: Report by the Independent Committee of Inquiry (1993)Google Scholar implemented by the Competition Policy Reform Act 1995 (Cth) and a Competition Policy Reform Act in each State and Territory.

⁸ This is a slightly modified version of Part IV and is found in Part XIA of the Trade Practices Act 1974 (Cth) and has been adopted in each State and Territory.

⁹ Trade Practices Act 1974 (Cth), s 4(1) definition of “business”. In each State and Territory Competition Policy Reform Act, s 3(2) provides that a definition used in the Trade Practices Act applies in the State or Territory Competition Policy Reform Act.

¹⁰ Trade Practices Act 1974 (Cth), ss 2C and 2D and provisions to the same effect found in s 15 of each State and Territory Competition Policy Reform Act.

¹¹ Trade Practices Act 1974 (Cth), s 2C(4).

¹² Ibid s 2C(2).

¹³ Ibid s 2D.

¹⁴ In Australian Industrial Relations Commission; ex parte Australian Transport Officers Federation (1990) 171 CLR 216 at 226 the High Court said it was appropriate to talk of “the business of government”.

¹⁵ [1978] AC 359.

¹⁶ Ibid at 383-5 per Lord Diplock (with whom Lord Edmund-Davies concurred), at 401 per Lord Simon of Glaisdale, at 402 per Lord Kilbrandon. Lord Morris of Borth-y-Gest dissented.

¹⁷ Ibid at 384.

¹⁸ Ibid at 385.

¹⁹ H Reps Deb 3 May 1977, vol 105 at 1477. This was the occasion of amending the Act by adding s 2A, the general provision which deals with removing the Commonwealth's possible immunity. The other provisions were introduced by the Competition Policy Reform Act 1995 (Cth).

²⁰ Section 87 provides for a wide range of remedies including an order “as the Court thinks appropriate” (s 87(1A)).

²¹ (1997) 147 ALR 419 at 436-7. It should be noted that an agreement between two different arms of the same legal entity (the Commonwealth) does not constitute carrying on a business because the Trade Practices Act, s 2C(l)(c)(i) provides that business does not include “a transaction involving only persons who are all acting for the Crown in the same right”. AGPS was a unit within the Department of Administrative Services and was not a separate legal entity from the Commonwealth.

²² Smith v Capewell (1979) 142 CLR 509 at 517 per Gibbs J.

²³ Drawing on Barwick CJ in Hungier v Grace (1972) 127 CLR 210 at 217.

²⁴ (1997) 147 ALR 419 at 437.

²⁵ Ibid at 438.

²⁶ Ibid.

²⁷ Ibid.

²⁸ McMillan was not subsequently awarded the contract.

²⁹ If the Fair Trading Act 1987 (NSW) were also amended (see above n 6) then ten pieces of legislation would have to be amended.