Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited

Statutes – Interpretation – Trade Practices Act 1974 (Cth) ("the Act") – First respondent negotiated with and formed contracts with State and Territory governments for the supply of medical products in circumstances where State and Territory governments were not carrying on a business – Trial judge found that, but for the application of derivative Crown immunity, the first respondent had contravened ss 46 and 47 of the Act in relation to pre-contractual conduct – Whether the provisions of ss 46 and 47 applied to the conduct of the first respondent – Nature and extent of available relief.

Statutes – Operation and effect of statutes – Crown immunity – Derivative immunity – Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 – Whether the presumption of Crown immunity creates a presumption against legislation having an incidence in legal effect upon the Crown – Whether the presumption of Crown immunity creates a presumption against legislation affecting Crown "freedoms" or governmental, commercial or political "interests" – Whether the Commonwealth, States and Territories are manifestations of the Crown – Whether Crown immunities apply as such to the Commonwealth, States and Territories – Whether different notions of governmental immunity are suggested or required by the Australian Constitution.

Constitutional law (Cth) – Crown immunity – Whether Crown immunity is applicable without modification to the Commonwealth, States and Territories provided for in the Constitution.

Words and phrases – "bind", "derivative Crown immunity", "incidence in legal effect".

Constitution – ss 1, 61, 71, 73, 74, 75, 78, 79, 114.

Trade Practices Act 1974 (Cth) – ss 2, 2A, 2B, 4L, 6, 46, 47, 51, 87, 87A.