The proceedings on the complaint are to be transferred to the Magistrates Court pursuant to s 131(2) of the Tasmanian Civil and Administrative Tribunal Act 2020.

Anti-Discrimination - Assertion of Federal matters - Transfer to Magistrates Court.

Tasmanian Civil and Administrative Tribunal Act 2021, ss 87, 131;

Disability Discrimination Act 1992 (Cth);

Food Act 2003 (Tas);

Food Standards Australia and New Zealand Act 1991 (Cth)

Commonwealth Constitution, s 109.

Hindle v Elliot [2024] TASCAT 45;

Burns v Corbett [2018] HCA 15.

Respondent: G Dimitriou/M Stirling (Master Grocers Australia Ltd)

1. On 12 December 2023 Ms Borst and Mr Gaull filed a complaint with the Office of the Anti-Discrimination Commissioner (the ADC) respectively alleging direct, indirect discrimination and offensive, humiliating, intimidating, insulting or ridiculing conduct by the respondent, and discrimination on the basis of association with a person who has a disability.
2. On the evidence before the Tribunal, the complainant owns an alpaca named Violet. Violet is described as an assistance animal. Within the material provided by the complainant Ms Borst to the ADC was a medical certificate from her physician stating that Violet is used as part of the complainant's therapy.
3. The complaint arose out of Ms Borst and Mr Gaull entering the IGA Everyday Orford supermarket with Violet on 9 December 2023. Both were asked to leave the store because Violet, as livestock, was not permitted in the store.

1. On 12 September 2024 the ADC referred the complaint to the Tribunal pursuant to s 78(2) of the Anti-Discrimination Act 1988 (the ADA).
2. In the material provided to the Tribunal by the ADC were references by both the complainant and the respondent to the Disability Discrimination Act 1992 (Cth) (the DDA).
3. At the first directions conference in relation to this matter on 14 November 2024, this issue was raised, and when it was indicated the respondents were seeking to raise a jurisdictional matter, directions were given for the provision of written submissions addressing this issue.
4. In accordance with the directions, the respondent filed written submissions on 12 December 2024 and again on 21 February 2025.
5. The complainants have failed to provide written submissions in accordance with the directions of 14 November 2024. As a consequence of this, a further directions conference was conducted on 16 April 2025. During this directions conference I explained the basis of the respondent's application and clarified with the complainants that this application sought an order pursuant to s 87 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act), that because of a jurisdictional issue, their complaint should be struck out.
6. Whilst it was clear that the complainants had previously had some difficulty understanding the complex nature of the respondent's application and submissions, by the conclusion of the directions conference they indicated that they were content for me to determine this matter without them providing any further material or response submissions.
7. Mr Stirling for the respondent indicated that the respondent had nothing further to add in addition to their written submissions of 12 December 2024 and 21 February 2025.
8. I reserved my decision indicating I would publish my reasons.

1. In its written submissions, the respondent identified the issue of Federal jurisdiction.
2. In summary, they indicated:

• To determine the inquiry it would be necessary for the Tribunal to either:

(a) Interpret the DDA to provide meaning to the divisions of the Act; or > > (b) Determine the inquiry and complaint by application of the DDA.

• The Tribunal would also need to consider the respondent's defence pursuant to s 24 of the ADA which it was asserted relied upon the Food Act 2003 (Tas) which would necessarily involve a detailed consideration of the Food Standards Australia and New Zealand Act 1991 (Cth) (the FSANZ Act).

3. There are no similar provisions to s 54(a)(v) and (vi) of the DDA in the ADA. This raised the possibility that there is a potential inconsistency between the Acts. The extent of any inconsistency would mean the relevant provisions of the ADA may be found invalid pursuant to s 109 of the Constitution. Section 109 provides that "when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall to the extent of the inconsistency be invalid".
4. Resolving this complaint on this basis, and also that asserted by the respondent in relation to the FSANZ Act, may also require an exercise of Federal jurisdiction as it would involve interpretation of the meaning of the word "inconsistent" in s 109 and a determination as to the effect of that interpretation on the ADA.
5. Even if the FSANZ Act issue is not ultimately determined to be an exercise of Federal jurisdiction, once a non-colourable assertion of Federal jurisdiction is made in respect to a complaint of discrimination under the ADA, the Tribunal loses its jurisdiction in respect of all of the justiciable matters in dispute (my emphasis).
6. Deputy President Grueber in Hindle v Elliot [2024] TASCAT 45 summarised the authorities for this proposition in some detail.
7. On the evidence before me, there is nothing in the assertion of the possible defence arising under the DDA, nor under the FSANZ Act, in the contention of inconsistency with the ADA that indicates that the assertion by the respondent is colourable.

1. In its written submissions the respondent seeks that the proceeding (complaint) should be struck out in its entirety pursuant to s 87 of the TASCAT Act.
2. Section 87 states:

The Tribunal may, at any time, make an order striking out all, or any part, of any proceedings if it considers that the matter involved in the proceedings, or any aspect of it, would be more appropriately dealt with by another tribunal, a court or any other person.

3. Having considered this application, I do not consider this would be the appropriate course, nor the appropriate order for the Tribunal to make.
4. With the commencement of the TASCAT Act, s 131 was inserted which states:
   1. Transfer to Magistrates Court of applications involving federal jurisdiction

(1) If a person has standing to make an application to the Tribunal in the exercise of its original jurisdiction under section 72 or its review jurisdiction under section 74, the application may, if the Tribunal orders under subsection (2) that proceedings on the application are to be transferred to the Magistrates Court, be determined by the Magistrates Court in accordance with this Part instead of the Tribunal.

(2) If, following an application made to the Tribunal in the manner and form required under this Act for the kind of application concerned, the Tribunal considers that -

(a) it does not have, or there is some doubt as to whether it has, jurisdiction to determine the application because its determination may involve the exercise of federal jurisdiction; and

(b) the Tribunal would otherwise have had jurisdiction enabling it to determine the application -

the Tribunal may order that proceedings on the application be transferred to the Magistrates Court.

(3) Proceedings transferred to the Magistrates Court under subsection (2) are transferred proceedings.

(4) If proceedings are transferred to the Magistrates Court under this Part -

(a) the application made to the Tribunal will be taken to be duly made as an application to the Court; and

(b) the proceedings may be continued and completed as if steps taken in the proceedings prior to the transfer had been taken in the Court.

(5) The fee payable in respect of the application is the prescribed fee (if any) payable to the Tribunal under this Act.

(6) A party to the transferred proceedings is not required to pay any fees in relation to the transfer of the proceedings to the Magistrates Court unless the Court determines that additional fees are payable under the Magistrates Court (Civil Division) Act 1992 because of a substantial alteration in the nature of the claims in the proceedings.

(7) An order made by the Tribunal under subsection (2) may not be the subject of review or appeal under Part 10.

(8) The Magistrates Court may remit transferred proceedings to the Tribunal for determination if the Court is satisfied that the Tribunal has jurisdiction to determine the matter.

(9) If the Magistrates Court remits transferred proceedings to the Tribunal, the Court may make the orders, if any, that it considers appropriate to facilitate the determination of the proceedings by the Tribunal.

(10) The Tribunal must determine transferred proceedings that are remitted to it in accordance with any orders made by the Magistrates Court and must determine such proceedings in accordance with any such order.

1. This provision was included in the TASCAT Act to deal with the consequences for Tribunals such as TASCAT which are not courts for the purposes of Chapter 3 of the Constitution following the High Court's decision in Burns v Corbett [2018] HCA 15.
2. In my view, an order pursuant to s 131 of the TASCAT Act transferring these proceedings to the Magistrates Court is the appropriate order for me to make.
3. To strike out the complainant's complaint would significantly prejudice the complainant as if that step was taken and a fresh complaint was lodged, the timing of the complainant's allegations, other potential legal defences, and similar non-colourable defences could inevitably be raised by the respondent.
4. For the complainant's complaint to fail completely on a jurisdictional ground especially when Parliament introduced s 131 of the TASCAT Act to deal with situations such as this would also in my opinion be inappropriate.
5. For all of these reasons I determine that it is appropriate to make an order under s 131(2) of the TASCAT Act to transfer this matter to the Magistrates Court.

1. Pursuant to s 131(2) of the Tasmanian Civil and Administrative Tribunal Act 2020, proceedings on the complaint are to be transferred to the Magistrates Court.