9. I have applied these principles to the matter before me.
10. The strike out application is directed at paragraphs 13 - 19 (inclusive) of the Applicants' Amended Outline of Legal Contentions dated 31 March 2011. In summary, two contentions are advanced by the Applicants:
    • (i) section 14 of the ART Act is inconsistent with the Sex Discrimination Act 1984 (Cth) and therefore "inoperative" by virtue of the effect of s 109 of the Commonwealth of Australia Constitution Act 1977 (Cth) ('the Constitution'); and
    • (ii) section 14 of the ART Act is also invalid because it infringes s 117 of the Constitution on the basis that it discriminates against the Applicants by reason that they may access IVF treatment in any other State or Territory, apart from Victoria.
11. The Respondent submits that these contentions are misconceived as the Tribunal cannot deal with the constitutional questions raised. It is on this basis that it is said that these parts of the Applicants' contentions should be struck out.
12. The essence of the Respondent's submission is that the invocation of the Constitution to enable a decision as to the validity of a State law is intrinsically an exercise of federal jurisdiction and as the Tribunal is not a court, it cannot exercise federal jurisdiction.
13. I agree that the Tribunal is not a court for this purpose and accordingly cannot exercise federal jurisdiction.
14. The starting point in respect of my consideration of this matter is the characterisation of the contentions sought to be struck out. All matters arising under the Constitution or involving its interpretation require the exercise of federal jurisdiction.[4] As Dixon J said in Ex parte; McLean:[5]

"The question raised is whether a State law is inconsistent with a Commonwealth law and therefore invalid by reason of sec 109 of the Constitution. This is not a question as to the limits inter se of the constitutional powers of the Commonwealth and of the State. But the question turns upon sec. 109 of the Constitution, and for this reason the matter is a cause arising under the Constitution or involving its interpretation."[6] [emphasis added]

1. It follows that the relevant contentions entail the exercise of federal jurisdiction. The next step is to decide which bodies may exercise federal jurisdiction in this context.
2. Section 77(iii) of the Constitution provides that the Commonwealth Parliament may make laws "investing any court of a State with federal jurisdiction". Subject to some limitations which are not presently relevant, s 39(2) of the Judiciary Act 1903 (Cth) invests "the several Courts of the States" with federal jurisdiction. Section 30(a) of the Judiciary Act 1903 (Cth) provides that the High Court has original jurisdiction "in all matters arising under the Constitution or involving its interpretation". It follows that by virtue of s 77 of the Constitution and ss 30 and 39 of the Judiciary Act 1903 (Cth), a "court of a State" is invested with federal jurisdiction in respect of matters arising under the Constitution or involving its interpretation.
3. The final step is to decide whether the Tribunal is a 'court of a State' within the meaning of these provisions. In my view that question should be answered in the negative.
4. While a body may be characterised as a 'court' for one purpose and not another[7] the expressions 'courts of the States' or 'court of a State' are constitutional terms, in that they refer to institutions of a certain kind within the contemplation of the Constitution. As their Honours Gummow, Hayne and Crennan JJ said in Forge v Australian Security and Investments Commission:[8]

"It may be accepted that the constitution and organisation of State courts is a matter for State legislatures. In that sense, the federal Parliament having no power to alter either the constitution or the organisation of a State court, the federal Parliament must take a State court 'as it finds it'. It does not follow, however, that the description which State legislation may give to a particular body concludes the separate constitutional question of whether that body is a 'court' in which federal jurisdiction may be invested. It is only in a 'court', as that word is to be understood in the Constitution, that federal jurisdiction may be invested."[9]

1. Whether a body can be characterised as a 'court' depends on the context and a body may be a court for one purpose but not another. However, as Kenny J observed in Commonwealth v Anti-Discrimination Tribunal (Tasmania) and Anor:[10]

"Within the Constitution, however, the meaning of the word 'court' is less malleable than elsewhere."[11]

1. The expression 'court of a State' refers to a body that has 'the essential character of a court' that can receive and exercise the judicial power of the Commonwealth. If a body does not have this 'essential character', it cannot receive and exercise Commonwealth judicial power. The relevant characteristics of a 'court of a State' are not easy to define[12] however, the High Court has held that independence and impartiality is the irreducible minimum for a court of a State within s 77(iii) of the Constitution.[13]
2. In determining whether the Tribunal can be characterised as a 'court of a State' it is necessary to look at the Tribunal as a whole.[14]
3. There are a number of indicia which suggest that the Tribunal is a 'court of a State', for example:
   • - in its original jurisdiction the Tribunal exercises powers which have many characteristics of judicial power;
   • - the President must be a Supreme Court judge (s 10) and Vice Presidents must be County Court judges (s 11);
   • - the Tribunal may compel a person to attend to give evidence or produce documents and to give evidence on oath (ss 81, 102 and 104);
   • - the Tribunal may award costs (s 109) and make orders providing for security of a party's costs (s 79);
   • - the Tribunal's orders may be filed in a court and enforced as a judgment of that court (ss 121 and 122);
   • - the Tribunal may grant injunctive and declaratory relief (ss 123 and 124);
   • - a judicial member of the Tribunal may punish a person for contempt (s 137); and
   • - a member of the Tribunal has the same protection and immunity as a judge of the Supreme Court (s 143).
4. In relation to the fact that the Tribunal may be said to exercise judicial power in its original jurisdiction, I note that this is not a determinative factor. As Ipp JA said in Orellana-Fuentes v Standard Knitting Mill Pty Ltd:[15]

"There are many institutions that exercise judicial powers but are well recognised not to be courts."[16]

1. Similarly, in Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) ('Stockland')[17] Spigelman CJ observed:

"The exercise of judicial power is a necessary but not a sufficient condition for the characterisation of a decision-making body as a court, even in a context where there is no constitutional overlay. Furthermore, many powers may be either judicial or executive and their classification may depend on the nature of the body which exercises them. Such powers are neutral as indicia for the characterisation of the decision-maker."[18]

1. There are also a number of indicia against the proposition that the Tribunal is a 'court of a State':
   • - the Tribunal is not called a court;[19]
   • - the non-judicial members of the Tribunal are appointed for a renewable term of five years (ss 12, 13 and 14);
   • - ordinary members of the Tribunal do not have to be legal practitioners (s 14(2)(b));
   • - Tribunal members are not required to take an oath of office; and
   • - in its review jurisdiction the Tribunal 'stands in the shoes' of the administrative decision maker and in certain circumstances may be required to implement Government policy (s 57).
2. Having regard to the considerations set out above I am not persuaded that the Tribunal is a 'court of a State', as it lacks the requisite level of institutional independence.
3. I am fortified in this conclusion by the authorities which have found that the various bodies which were incorporated into the Tribunal upon its establishment were not courts.[20]
4. I also draw support from the fact that other tribunals which are, in some respects, similar to this Tribunal have been held not to be a court of a State such as the NSW Residential Tenancies Tribunal[21] and the NSW Administrative Decisions Tribunal.[22]
5. In Stockland the NSW Court of Appeal held that the Administrative Decisions Tribunal, established under a State Act, was not a 'court of a State'. Spigelman CJ, with whom Hodgson and Bryson JJA agreed, held that:

"For present purposes it is sufficient to conclude that, in order for federal jurisdiction to be permissibly conferred upon it, a 'court of a State' must - exclusively, or at least predominantly - be constituted by judges."[23]

1. It is implicit in observations made elsewhere in his Honour's judgment (at 89) that the absence of security of tenure was an important consideration in reaching this conclusion.
2. For the reasons given I grant the application and strike out paragraphs 13 to 19 (inclusive) of the Applicant's Amended Outline of Legal Contentions dated 31 March 2011.
3. I note that in their written submissions the Applicants submit that if I were persuaded to grant the Respondent's strike out application then I should adjourn the substantive proceeding and refer the relevant parts of the Applicants' contentions to the Supreme Court pursuant to s 96 of the VCAT Act. This submission was not the subject of any oral argument in the proceedings before me. In the circumstances I propose to deal with this issue separately. In the event that the Applicants wish to pursue a s 96 referral they should advise my associate and I will list that matter for a hearing.

[1] Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane and Dawson JJ); Lay v Alliswell Pty Ltd [2001] VSC 385 [14] (Balmford J).

[2] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Forrester v Aims Corporation [2004] VSC 506.

[3] Knight v Secretary to the Department of Justice [2003] VSC 341 [23] (Kellam J).

[4] Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 536 (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ).

[5] [1930] HCA 12; (1930) 43 CLR 472.

[7] Compare Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497, 515 (McHugh JA) and New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173, 209 (Mahoney JA).

[8] [2006] HCA 44; 228 CLR 45.

[10] [2008] FCAFC 104; (2008) 169 FCR 85.

[11] Ibid 139. Also see Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) ('Stockland') [2006] NSWCA 185; (2006) 66 NSWLR 77, 84 (Spigelman CJ) and Maltall Pty Ltd v Bevandale Pty Ltd (1998) 14 VAR 368 per Macnamara DP.

[12]Enid Campbell, 'What are Courts of Law?' [1998] UTasLawRw 2; (1998) 17(1) University of Tasmania Law Review 19-47; Graeme Hill, 'State administrative tribunals and the constitutional definition of "court"' (2006) 13 Australian Journal of Administrative Law 103.

[13] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45, 67 (Gleeson CJ). Also see North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

[14] Stockland 85 (Spigelman CJ); The Commonwealth of Australia v The Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49; Maltall Pty Ltd v Bevandale Pty Ltd (1998) 14 VAR 368, 383 (Macnamara DP).

[15] [2003] NSWCA 146; (2003) 57 NSWLR 282.

[17] [2006] NSWCA 185; (2006) 66 NSWLR 77.

[19] Tana v Baxter [1986] HCA 69; (1986) 160 CLR 572, 581-2 (Brennan J); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153, 175 (Issacs J); Stockland 87 (Spigelman CJ).

[20] Roads Corporation v Melbourne Estates and Finance Co Pty Ltd (No 2) [1993] VicRp 94; [1993] 2 VR 620, Gobbo J held that a Land Valuation Board of Review was not a court within the general meaning of the word 'court' or, more particularly, within s 33 of the Supreme Court Act 1986; Shire of Sherbrooke v F L Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353, 356 (Southwell J proceeded on the basis that the Planning Appeals Board was not a court of law for the purposes of the Administrative Law Act 1978), also see Melbourne and Metropolitan Board of Works v Cullen Melbourne and Metropolitan Board of Works v Opas [1981] VicRp 67; [1981] VR 707 and State Electricity Commission of Victoria v Wright (1997) 12 VAR 354.

[21] Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410.