On 4 May 2022 the High Court delivered a judgment of the power of State Tribunals to consider constitutional matters. Without considering the merit of constitutional defence, the Tasmanian Tribunal concluded that it would be exercising judicial power on a Federal Matter, and dismissed the matter, on the basis it lacked jurisdiction. On appeal, the Full Court examined the merit of the constitutional defence, dismissed it, and referred it back to the Tribunal for determination. The High Court agreed with the Tribunal’s initial decision, based on the 2018 High Court case, of Burns v Corbett, that held that State Legislatures do not have Constitutional power to vest their non-court tribunals, with this kind of Federal Jurisdiction. Evidently, the High Court did NOT overturn this. Rather, the case went to establish the precise test for when the State Tribunal, loses jurisdiction. The bar is set really low – “it is enough that the claim or defence be genuinely raised and that it not be incapable on its face of legal argument.” This decision is really only relevant to State Tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT), which it seems, would not have jurisdiction to (for instance) determine whether there was no valid exaction of a State tax, because (for instance) it was a constitutionally prohibited ‘excise’. (Or at least, I think that is right – but no less than Sir Anthony Mason has observed, that ‘[t]he very mention of “federal jurisdiction” is enough to strike terror in the hearts and minds of Australian lawyers who do not fully understand its arcane mysteries’ – see the very informative, but dense, case note on the Burns v Corbett: Federal Jurisdiction, State Tribunals and Chapter III Courts, by Callum Christodoulou.)
CITTA HOBART PTY LTD & ANOR v CAWTHORN [2022] HCA 16
High Court Summary
[On 4 May 2022], the High Court allowed an appeal from the Full Court of the Supreme Court of Tasmania. The primary issue in the appeal concerned whether the Anti-Discrimination Tribunal had jurisdiction under the Anti-Discrimination Act 1998 (Tas) (“the State Act“) to determine a complaint made by the respondent that he had been discriminated against by the appellants, in circumstances where the appellants had asserted that parts of the State Act were inconsistent with the Disability Discrimination Act 1992 (Cth) (“the Commonwealth Act“) and a standard made under the Commonwealth Act, and were therefore inoperative by force of s 109 of the Constitution. This issue arose against the background of the High Court’s decision in Burns v Corbett [2018] HCA 15, (2018) 265 CLR 304, which held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of a State within the meaning of the Constitution judicial power with respect to any matter of a description in ss 75 and 76 of the Constitution including, relevantly, ss 76(i) (matters arising under the Constitution) and 76(ii) (matters arising under a Commonwealth law).
The first appellant is undertaking the development of Parliament Square in Hobart on land owned by the second appellant. When the development is completed, one of the entrances will provide access only by way of stairs. The respondent, who relies on a wheelchair for mobility, made a complaint to the Tribunal that this entrance constituted direct and indirect disability discrimination under certain provisions of the State Act. The appellants, as part of their defence (“the constitutional defence”), argued that these provisions were inconsistent with the federal scheme for disability access and that, as a result of this inconsistency, those provisions of the State Act were rendered inoperative because of s 109 of the Constitution. Applying Burns v Corbett, the Tribunal formed the opinion that if it determined the complaint it would be exercising judicial power and, as it was not a court of a State, it did not have jurisdiction to hear the matter because the constitutional defence arose under the Constitution or arose under a law made by the Commonwealth Parliament and was “not colourable”. Accordingly, without considering the merits of the constitutional defence, the Tribunal dismissed the complaint for want of jurisdiction.
The Full Court, on appeal, addressed the merits of the constitutional defence and rejected it. The Full Court set aside the order of the Tribunal dismissing the complaint and remitted the complaint to the Tribunal for hearing and determination.
The High Court held that the Tribunal had reached the correct conclusion on the primary issue of its jurisdiction. The Tribunal exercises judicial power in hearing and determining a complaint under the State Act. The Court, by majority, held that for a claim or defence in reliance on the Constitution or a Commonwealth law to give rise to a matter of a description in ss 76(i) or 76(ii) of the Constitution, it is enough that the claim or defence be genuinely raised and that it not be incapable on its face of legal argument. The constitutional defence had been genuinely raised in answer to the complaint in the Tribunal and, whatever its merits, it was not incapable on its face of legal argument. On that basis, the Tribunal was correct to order that the complaint be dismissed for want of jurisdiction.
High Court Website: Judgement Summary Page (4 May 2022) – Summary of Decision
Catchwords
Constitutional law (Cth) – Chapter III – Where respondent’s complaint made under Anti‑Discrimination Act 1998(Tas) (“State Act”) was referred to Anti-Discrimination Tribunal (“Tribunal”) – Where appellants in defence asserted provisions in State Act inconsistent with Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth) – Where Tribunal dismissed complaint for want of jurisdiction without addressing merits of defence – Where Full Court of Supreme Court of Tasmania on appeal considered merits of, and rejected, defence – Where Tribunal not “court of a State” within meaning of ss 77(ii) and 77(iii) of Constitution – Where Chapter III implication recognised in Burns v Corbett (2018) 265 CLR 304 prevents State Parliament conferring on State tribunal that is not “court of a State” judicial power with respect to any matter of kind described in ss 75 and 76 of Constitution – Whether Tribunal exercised judicial power when determining complaint under State Act – Whether Tribunal had jurisdiction to hear and determine complaint – Whether defence needed to meet some threshold of arguability to give rise to matter of kind described in ss 76(i) and 76(ii) of Constitution.
Words and phrases – “abuse of process”, “claim or defence that amounts to ‘constitutional nonsense'”, “colourable”, “genuinely in controversy”, “involving no ‘real question'”, “issue capable of judicial determination”, “judicial power”, “justiciable controversy”, “limits of jurisdiction”, “manifestly hopeless”, “matter”, “no reasonable prospects of success”, “not incapable on its face of legal argument”, “single justiciable controversy”, “State jurisdiction”, “State tribunal”, “summarily dismissed”, “threshold of arguability”.
Constitution of Australia – Federal Jurisdiction
75. Original jurisdiction of High Court
In all matters:
- arising under any treaty;
- affecting consuls or other representatives of other countries;
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
- between States, or between residents of different States, or between a State and a resident of another State;
- in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
76. Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
- arising under this Constitution, or involving its interpretation;
- arising under any laws made by the Parliament;
- of Admiralty and maritime jurisdiction;
- relating to the same subject-matter claimed under the laws of different States.
77. Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
- defining the jurisdiction of any federal court other than the High Court;
- defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
- investing any court of a State with federal jurisdiction.
Extract from majority judgement (6 of the 7 judges sitting)
The irrelevance of the merits of the constitutional defence
34 There remains to consider whether, in order to have given rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, the constitutional defence asserted by the appellants needed to meet some threshold degree of arguability and, if so, what that threshold was. The question is said in informed contemporary commentary to be not yet finally resolved[45].
35 The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
36 That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is “unarguable” or if the claim or defence is “colourable” in that it is made for the purpose of “fabricating” jurisdiction[46].
…
41 The respondent, with the support of the Attorney-General of the Commonwealth and some other intervenors, invites this Court to depart from that principled and longstanding approach. The invitation is to put in its place a requirement that, to operate to characterise a justiciable controversy as a matter described in s 76(i) or s 76(ii) of the Constitution, a claim or defence asserted in reliance on a Commonwealth law or in reliance on the Constitution must meet a threshold of arguability consistent with the raising of the claim or defence in a court not amounting to an abuse of the process of that court. The invitation is rejected.
42 To adopt the suggested approach would blur the distinction between the existence of jurisdiction and the exercise of jurisdiction. It would confuse the jurisdiction that any court or non-court tribunal must have to decide the limits of its own jurisdiction with the power that a court alone must have in the exercise of its jurisdiction to safeguard the integrity of its processes. Applied to this Court, to a court created by the Commonwealth Parliament or a court of a State on which federal jurisdiction is conferred by a Commonwealth law, such an approach would result in a perverse fragmentation of jurisdiction by splintering off from jurisdiction those aspects of a genuine controversy most readily resolvable in the exercise of judicial power. Applied by a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii), it would inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution.
[Tax Month – May 2022 – Previous Month, 15.5.22]