Applicants v Respondent

3 In the Tribunal proceedings, the ABC filed points of defence denying that its conduct breached s 8 of the RRT Act.[3] The matter proceeded to hearing, and after ten hearing days, the ABC raised a question of whether it was the 'Commonwealth' for the purpose of s 75(iii) of the Constitution. If it was, this would, pursuant to the Constitutional limitation on the power of State legislatures to confer jurisdiction in respect of any matters listed in ss 75 and 76 of the Constitution on a tribunal which is not a court of the State_,_[4] deprive the Tribunal of its jurisdiction.

4 The Tribunal member hearing the proceeding referred it to Justice Woodward, President of the Tribunal, to consider making an order under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), to strike out the proceeding on the basis that its subject matter would be more appropriately dealt with by another body.

5 Justice Woodward determined, after receiving submissions from the parties, that there was a real question going to the Tribunal's jurisdiction to hear the proceeding, and that given the late stage of the proceeding, instead of referring the matter under s 77 it was preferable to refer questions of law to this Court under s 96 of the VCAT Act.[5]

6 On 25 March 2024, Justice Woodward made orders referring the following questions of law to this Court:

1. Is the respondent in proceeding H228/2021 (the Australian Broadcasting Corporation) the Commonwealth or a person being sued on behalf of the Commonwealth for the purposes of s 75(iii) of the Commonwealth Constitution?
2. Is the whole of proceeding H228/2021 nevertheless a "matter" within federal jurisdiction because it involves a matter arising under the Commonwealth Constitution, or involving its interpretation?

7 On 19 April 2024, following directions in this Court, orders were made for the service of notices pursuant to s 78B of the Judiciary Act 1903 (Cth) on the Attorneys-General of the States and Territories. The Attorney-General for the State of Victoria intervened in the proceeding.[6] The Attorney-General made submissions which did not take a position on whether the ABC is 'the Commonwealth' for the purposes of s 75(iii) but focussed on the Tribunal's power and duty to determine the question of jurisdiction.

The constitutional limit on the jurisdiction of State Tribunals identified in Burns v Corbett

8 In Burns v Corbett the High Court held that an implication arises from Chapter III of the Constitution that a State parliament lacks legislative capacity to confer on a tribunal that is not a court of a State within the meaning of s 77(ii) and (iii) of the Constitution judicial power with respect to any matters in ss 75 and 76 of the Constitution.[7] Consequently State legislation conferring jurisdiction on a State tribunal must, consistent with the relevant State statutory interpretation legislation (here, s 6(1) of the Interpretation of Legislation Act 1984 (Vic)), be construed as excluding jurisdiction with respect to these matters. [8]

9 The established constitutional propositions relevant to the jurisdiction of the Tribunal, as a tribunal of the State of Victoria, and to the questions referred to this Court, were recently summarised by the Court of Appeal in Krongold Constructions (Aust) Pty Ltd v Thurin[9] in a way which provides a useful legal background to the issues in this case. The Court of Appeal stated:[10]

It is convenient to reiterate some important but uncontroversial constitutional propositions:

(a) First, only a court established under Ch III of the Constitution or a court of a State within the meaning of that Chapter can exercise federal judicial power.[11]

(b) Second, only the Commonwealth Parliament can confer federal jurisdiction on a court and regulate its exercise.[12]

(c) Third, it follows from the second proposition that State Parliaments have no power to legislate with respect to the conferring of federal jurisdiction or regulating its exercise. This is a limitation on State legislative power. It is not a product of the application of s 109 of the Constitution.[13]

(d) Fourth, federal judicial power is conferred and regulated in respect of a 'matter' within the meaning of Ch III which for present purposes can be described, incompletely, as a justiciable controversy in respect of existing rights, duties or liabilities that might come before a court.[14]

(e) Fifth, the Commonwealth Parliament through ss 39, 68 and 79 of the Judiciary Act 1903 (Cth) has invested State courts with federal jurisdiction and regulated the exercise of that jurisdiction, essentially by 'picking up' State laws so that they apply in federal jurisdiction, subject to the Commonwealth otherwise providing in relevant respects.[15]

(f) Sixth, the determination by VCAT of a 'building dispute' by the making of binding orders involves the exercise of judicial power.

(g) Seventh, although VCAT can and does validly exercise State judicial power, VCAT is not a court of a State within the meaning of Ch III and cannot be invested with or exercise federal judicial power.[16]

10 The observation at (f) relating to a building dispute was made because that case related to an application relating to a domestic building contract made under the Domestic Building Contracts Act 1995 (Vic), with a defence raised under Commonwealth legislation, the Trade Practices Act 1974 (Cth). The Application in this case was made pursuant to the RRT Act. As will be seen below, it is uncontroversial that the determination of the Application by the Tribunal would also involve the exercise of judicial power.

11 To summarise, as relevant to the questions arising in this case, the Constitutional limitation in Burns v Corbett will apply where three conditions are met:[17]

(a) The resolution of the dispute will involve the exercise of judicial power;

(b) The decision maker is not a court within the meaning of Ch III of the Constitution;

(c) The proceeding is of a kind that falls within either ss 75 or 76 of the Constitution.

(i) Relevantly in this case, s 75(iii) of the Constitution gives the High Court original jurisdiction in all 'matters ... [i]n which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party'.

(ii) Section 76 empowers Parliament to confer additional original jurisdiction on the High Court in other 'matters', including relevantly in s 76(i) 'any matter ... [a]rising under this Constitution, or involving its interpretation'.

12 Referred Question (a) focusses on whether the ABC is 'the Commonwealth' for the purpose of s 75(iii). For the reasons set out below, the ABC is not 'the Commonwealth' for this purpose and the answer to this question is 'No'.

13 Question (b) requires a determination as to whether the proceeding is otherwise a 'matter' for the purposes of ss 75 or 76. That question requires consideration of whether, by reason only of the issue arising as to whether the Tribunal has jurisdiction, which requires consideration and interpretation of the Constitution in determining whether the ABC is 'the Commonwealth' for the purposes of s 75(iii) of the Constitution, the entirety of the proceeding is to be regarded as a matter within federal jurisdiction. The answer to Question (b) is 'No' for the reasons explained below.

14 Finally, the judgment addresses the issue raised by the Attorney-General as to the Tribunal's power and duty to determine the question of jurisdiction.

15 The parties filed comprehensive submissions which narrowed considerably the points on which there was any disagreement. Existing authority also addresses many of the issues arising in this case. It is no doubt for this reason that Woodward J confined the first referred question to whether the ABC is 'the Commonwealth or a person being sued on behalf of the Commonwealth' within the meaning of s 75(iii) of the Constitution. The position on the issues antecedent to that question can be briefly stated.

16 The Tribunal is not a court of the State: It was common ground that the Tribunal is not a 'court of a State' for the purposes of Ch III of the Constitution. This was recognised authoritatively by the Court of Appeal in Meringnage v Interstate Enterprises Pty Ltd[18] and each party accepted that conclusion.

17 The Tribunal would exercise judicial power if it was to determine the Application: All parties also submitted that the Tribunal would be exercising judicial power in determining the Application. This conclusion follows from the nature of the orders which, in the exercise of powers under the RRT Act, the Tribunal could make in determining the issues in the dispute the subject of the Application, and the procedures for their enforcement.[19]

18 The Tribunal may, after finding that a person has contravened a provision of Part 2 of the RRT Act (which includes the prohibition on religious vilification in s 8 of the RRT Act), order that:

(a) the person refrain from committing any further contravention of the RRT Act;

(b) the person pay compensation to an applicant for loss, damage or injury suffered as a result of the contravention;

(c) the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention.[20]

19 The Tribunal's order may be registered in a court and enforced as an order of that court.[21]

20 The determination of a statutory contravention, which is the condition for making any of the above orders, involves a determination as to existing rights and liabilities, bearing the character of a judicial function.[22] The kinds of orders that the Tribunal may make, including orders to the effect of an injunction to refrain from taking action; to require payment of compensation, or otherwise to address the effect on the applicant of the contravention, are in the nature of the orders made by Courts.[23] That these orders may also be enforced by registering the orders with a Court reinforces the judicial nature of the powers that the Tribunal is exercising when making such orders.[24]

21 The remaining issue for resolution, in answering Question (a), is whether the ABC is the Commonwealth or is sued on behalf of the Commonwealth.

22 The Applicants submitted that there was no need to analyse this issue, as the ABC had already been authoritatively determined to be 'the Commonwealth' by the judgment of the Full Court of the Federal Court in Re Australian Performing Rights Association and Australian Broadcasting Commission (Re APRA).[25] This was an element of a broader position of the Applicants that there was no proper basis for the questions of law to have been referred to this Court, and that it was inappropriate to do so at the late stage of the proceeding and in light of the delay it would cause.[26] As discussed below, I do not accept that the issue raised by Question (a) has been authoritatively determined. It is, therefore, necessary to consider the current status of the ABC under the ABC Act.

Principles relevant to whether an entity is the Commonwealth

23 The reference to 'the Commonwealth' in s 75(iii) of the Constitution is to organisations or institutions of government assessed in accordance with the conceptions of ordinary life.[27] There is no material difference for present purposes between whether an entity is 'the Commonwealth', or 'a person suing or being sued on behalf of the Commonwealth' in s 75(iii). It is established that the latter phrase was added to ensure that the s 75(iii) jurisdiction of the High Court extended to cases in which the Commonwealth itself was not the nominal defendant or plaintiff, and is not a reason to read references to the Commonwealth in any restricted sense.[28]

24 The reference to the Commonwealth is wide enough to refer to a corporation which is an agency or instrumentality of the Commonwealth, so that incorporation or establishment as a body corporate does not indicate that the entity is not the Commonwealth.[29] The focus of the inquiry, in determining whether a statutory corporation is the Commonwealth, is whether on the one hand the statutory corporation is discharging governmental functions for the Commonwealth, or the Commonwealth is carrying out governmental activity through the corporation;[30] or on the other it is a corporation brought into existence to perform its functions independently of the Commonwealth, and otherwise than as a Commonwealth instrument.[31]

25 The authorities are clear that this is to be determined by reference to the characteristics of the corporation as demonstrated by the legislation by which it was established,[32] and other legislation relevant to the ABC's powers, status and duties. It is not relevant to have regard to the actual activity of the corporation; the statutory provisions are the defining consideration.[33]

26 The question of whether an entity is the Commonwealth for the purposes of the Constitution is distinct from the question of whether it attracts privileges and immunities of the Crown in right of the Commonwealth[34] so that any privilege or immunity under statute would not be determinative of the question.

27 The consideration of whether a statutory corporation is 'the Commonwealth' involves considering two broad matters.

(a) First, the nature of the activities undertaken by the entity and whether they have a governmental character.[35] While it is recognised that there is no specific dividing line between governmental functions and non-governmental functions, there are some functions which are more clearly governmental in nature, such as regulatory functions.[36]

(b) Second, the legal relationship between the entity and the executive government of the Commonwealth, and the degree of control that the executive may exercise over the corporation.[37]

28 In considering the degree of control that the executive may exercise over the statutory corporation and the legal relationship between them, the following matters have been recognised as particularly relevant:[38]

(a) the circumstances of establishment of the corporation and whether the corporation was established in pursuit of a public interest;[39]

(b) whether there are corporators (the absence of corporators being an indicator that the intention of Parliament was to create for the Commonwealth an outward form as a convenient means of carrying on a government activity);[40]

(c) whether the Commonwealth executive participates in the corporation's formulation of policy or in decision making;[41]

(d) whether the Commonwealth has the power to appoint directors;[42]

(e) whether the corporation's staff are appointed as employees under the Public Service Act 1999 (Cth);[43]

(f) whether the corporation is subject to audit by the Commonwealth Auditor-General;[44]

(g) whether the corporation is funded by appropriations from consolidated revenue.[45]

29 The Applicants and the ABC were agreed that the ABC is not the Commonwealth for the purposes of s 75(iii). As noted above, the Applicants contended that this conclusion was compelled by binding authority in Re APRA,[46] and that the agreement of the parties also meant that I could make orders on the day of the hearing, by consent, answering both questions 'no'.[47] Nevertheless the Applicants did make submissions about the application of the above principles to the ABC as constituted by the Australian Broadcasting Corporation Act 1983 (Cth) (ABC Act). The ABC contended that Re APRA did not determine the question of whether the ABC was the Commonwealth for constitutional purposes and was, in any event, persuasive but not binding. Further, it says that it is necessary to apply the relevant considerations to the current ABC Act.[48]

Preliminary issue of whether the question is determined by existing authority

30 I agree that Re APRA does not determine the question of whether the ABC is 'the Commonwealth' for the purposes of s 75(iii) of the Constitution. Re APRA involved a consideration of s 183 of the Copyright Act 1968 (Cth) which provided relevantly in s 183(1):

The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

31 The Copyright Tribunal had stated a case for the Full Court of the Federal Court including a question as to whether the Australian Broadcasting Commission (the entity established under the Broadcasting and Television Act 1942 (Cth)) (1942 Act) was 'an agent or instrumentality of the Commonwealth' for the purposes of s 183.[49] The Full Court considered provisions of the 1942 Act and determined, having regard to the principles in the cases referred to above including Inglis, that:

... the Commission does not fall within the word 'Commonwealth'; nor is it an agent or instrumentality of the Commonwealth for the purposes of s 183.[50]

32 It is apparent from the Court's introductory discussion to the analysis of the issue that its reference to 'the word 'Commonwealth' in this passage was to the word 'Commonwealth' as used in the Copyright Act.[51]

33 The fact that the judgment in Re APRA was considering whether the Commission was the Commonwealth or its agent or instrumentality under specific legislation, rather than the Constitution, is sufficient to conclude that while the decision may be a useful reference, it does not determine the question referred to this Court of whether the ABC is 'the Commonwealth' for the purposes of s 75(iii) of the Constitution.

34 Further, that decision involved a consideration of the Australian Broadcasting Commission, as constated under the 1942 Act. The question before the Court requires consideration of the legislation which now governs the ABC, the ABC Act. The Applicants contended that the ABC Act 'adopted' the effect of the decision in Re APRA, particularly through s 5 which provides that the Australian Broadcasting Commission 'continues in existence ... under the name Australian Broadcasting Corporation', so that the decision remained authoritative in 'demonstrating that the ABC was not the Commonwealth'.[52] Although the continuation of the ABC from its establishment as the Commission may be a relevant matter in considering the status of the ABC under the ABC Act, neither s 5 nor any other aspect of the ABC Act indicates any intention to 'adopt' the effect of the decision in Re APRA.[53]

35 It is, therefore, necessary to consider the relevant matters identified in the authorities as relevant to the status of a statutory corporation, by reference to the ABC Act.

36 The ABC Act, by s 5(1), provides that the body corporate that was in existence by virtue of s 30 of the 1942 Act under the name the Australian Broadcasting Commission continues in force as a body corporate by reason of the subsection, and subject to the provisions of the ABC Act, under the name Australian Broadcasting Corporation.

37 The functions of the Corporation are set out in s 6(1) which states:

6 Charter of the Corporation

(1) The functions of the Corporation are:

(a) to provide within Australia innovative and comprehensive broadcasting services of a high standard as part of the Australian broadcasting system consisting of national, commercial and community sectors and, without limiting the generality of the foregoing, to provide:

(i) broadcasting programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community; and

(ii) broadcasting programs of an educational nature;

(b) to transmit to countries outside Australia broadcasting programs of news, current affairs, entertainment and cultural enrichment that will:

(i) encourage awareness of Australia and an international understanding of Australian attitudes on world affairs;

(ii) enable Australians living or travelling outside Australia to obtain information about Australian affairs and Australian attitudes on world affairs; and

(c) to encourage and promote the musical, dramatic and other performing arts in Australia.

38 The ABC is also required by s 27 to develop and maintain an independent news service for the daily broadcasting of news and information.

39 In Re APRA, Bowen CJ and Franki J observed that 'it cannot be said that broadcasting and television are inalienable government functions'.[54] Justice Sheppard stated:

There is no warrant for taking the view, at least in Australia, that the provision of broadcasting and television services is an ordinary feature of government.[55]

40 I accept the submissions of the Applicants[56] and the ABC[57] that these observations remain true in considering the ABC's functions under the ABC Act, which now include the provision of digital media services and the promotion of the performing arts_._ There is nothing in the nature of these services that makes them an inherently governmental function. Broadcasting, television and media services and promoting the performing arts are activities frequently undertaken by private sector actors.

41 It is also, however, notable that the terms in which the broadcasting, television and related functions of the ABC are described in the ABC Act engage concepts of how the functions are to be performed which may distinguish the functions of the ABC from activity undertaken in the private sector. The ABC is required under its Charter to:

(a) broadcast programs which contribute to a sense of national identity and reflect the cultural diversity of the Australian community (s 6(1)(a)(i));

(b) broadcast programs of an educational nature, taking into account the responsibilities of the States in relation to education (s 6(1)(a)(ii) and s 6(2)(a)(v));

(c) in broadcasting overseas, transmit programs of news, current affairs, entertainment and cultural enrichment that will encourage awareness of Australia and an international understanding of Australian attitudes on world affairs and enable Australians living or travelling outside Australia to obtain information about Australia affairs and Australian attitudes on world affairs (s 6(1)(b)); and

(d) take into account in providing broadcasting services the responsibility of the Corporation as the provider of an independent national broadcasting service to provide a balance between broadcasting programs of wide appeal and specialized broadcasting programs (s 6(2)(a)(iii)).

42 The ABC and related prescribed companies are to be the only providers of Commonwealth funded international broadcasting services (s 31AA).

43 These requirements, both as to content and as to how the ABC is to perform its functions, give to its functions an overlay of community benefit and public interest objectives which may not necessarily characterise broadcasting, television and media services in the private sector. This supports a conclusion that the functions have an element of public character.[58]

44 However, identifying an entity as 'the Commonwealth' requires demonstration of more than a government policy of facilitating the creation of an entity to further some element of the public interest.[59] That is one element only of understanding the nature of the ABC and its relationship with the Commonwealth. The ABC's functions, while not having any inherent governmental character, are required in some respects to be performed in ways which further the executive's policy as to the public interest. Taking this into account, the nature of the functions are ultimately inconclusive in determining the ABC's character. It is more informative to turn to a consideration of the legal relationship between the ABC and the Commonwealth.

The legal relationship between the Commonwealth and the ABC, and the degree of control exercised by the executive

45 It is necessary to consider the ABC as established and regulated by the ABC Act and related legislation holistically to determine whether its relationship with the Commonwealth is such as to make it the Commonwealth, or an agency or instrumentality of it, for the purposes of s 75(iii). Although the entirety of the relationship is to be assessed, the consideration of the various relevant factors identified in the authorities, identified at [28] above, enables that analysis.[60]

The circumstances of establishment of the ABC and whether there are corporators

46 As described above, the ABC was continued in existence by s 5 of the ABC Act from the body corporate that was, immediately prior to the commencing day of the ABC Act, in existence as the Australian Broadcasting Commission by virtue of s 30 of the 1942 Act.

47 The Australian Broadcasting Commission was originally established by s 7 of the Australian Broadcasting Act 1942 (Cth) which established the Commission as a body corporate with perpetual succession and a common seal, with the power to acquire, hold and dispose of real and personal property and being capable of suing and being sued in its own name.[61] The Commission was to consist of five Commissioners, to be appointed by the Governor General. There were no corporators.

48 The absence of corporators was in Inglis and in State Bank of NSW v Commonwealth Savings Bank regarded as a feature suggestive of constitution of a corporation as a convenient means of the executive carrying on a governmental activity.[62]

49 The ABC, as continued in existence under the ABC Act, has pursuant to s 25 a range of general powers and duties to facilitate the performance of its functions and enable it to operate in a general way (including to enter contracts; acquire, hold and dispose of real or personal property; occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of the ABC; and erect buildings and carry out works) and also specifically to enable it to perform its broadcasting and related functions.[63]

Whether the Commonwealth has the power to appoint directors

50 The ABC Act, s 7_,_ establishes a Board of Directors of the ABC. The Board is to be composed of a Managing Director, a Chairperson, a staff-elected Director, and not fewer than four nor more than six other Directors.[64]

51 Other than the Managing Director and the staff-elected Director, the Directors are to be appointed by the Governor-General and hold office on a part-time basis for a period not exceeding five years.[65] The Managing Director is appointed by the Board of Directors for a period of five years.[66]

52 Part IIIA of the Act sets out a process for the merit-based appointment of these Directors, involving a selection process conducted by a Nomination Panel which is not subject to direction by or on behalf of the Government of the Commonwealth.[67] The Prime Minister may recommend to the Governor-General that a particular person be re-appointed as Chairperson, and the Minister administering the ABC Act may recommend that the Governor-General re-appoint a Director, without compliance with Part IIIA.[68] Directors other than the managing director may be removed from office by the Governor-General for misbehaviour or physical or mental incapacity.[69]

53 Current or former members of Commonwealth and State Parliaments, and of the Legislative Assembly of the Australian Capital Territory and of the Northern Territory, and any person who is or was a senior political staff member, are ineligible for appointment as Chairperson or non-executive director for the period of 12 months after they have ceased to hold the relevant position.[70]

54 The remuneration of the directors is set by the Remuneration Tribunal.[71] The Remuneration Tribunal is established by the Remuneration Tribunal Act 1973 (Cth) and itself has a membership that is to be independent of Parliament and the public service.[72]

55 These provisions as to appointment of directors establish a significant degree of independence for the Board of the ABC from the Commonwealth executive.

Whether the corporation's staff are appointed as employees under the Public Service Act 1999 (Cth)

56 The staff of the ABC are engaged by the Corporation and are not employed under the Public Service Act 1999 (Cth).[73] This is a factor indicating some independence of the staff of the ABC from the Commonwealth, as compared to the fact that ASIC's staff are employed under the Public Service Act, a matter identified by the plurality in Edensor Nominees as supporting the conclusion that ASIC was a statutory corporation answering the description of the Commonwealth in s 75(iii) of the Constitution.[74]

Whether the Commonwealth executive controls or participates in the ABC's formulation of policy or in decision making and other considerations relevant to independence_[75]_

57 The functions of the ABC in s 6 of the ABC Act include a description of the ABC as 'an independent national broadcasting service'.[76] The ABC Act contains a range of other specific provisions which are evidently designed to, and would be expected in practice to operate to, secure the independence of the ABC in the performance of its broadcasting and related functions.

58 The Board has duties which are expressed primarily by reference to factors other than government policy or objectives. The Board has a duty to ensure that the ABC's functions are performed efficiently and with maximum benefit to the people of Australia.[77] The Board must ensure that the gathering and presentation by the ABC of news and information is accurate and impartial according to the recognised standards of objective journalism.[78]

59 Importantly, it is an express duty of the Board to 'maintain the independence and integrity of the Corporation'.[79] The ABC Act also provides that the ABC does not have power:

(a) to accept the performance of any service, or the provision or any facility, for the Corporation; or

(b) to accept any gift, devise or bequest to the Corporation, whether offered or made unconditionally or subject to conditions;

where it is likely that that independence or integrity of the Corporation would be affected.[80]

Subject to this Act, the Corporation may determine to what extent and in what manner political matter or controversial matter will be broadcast by the Corporation.

61 The ABC must comply with requirements of s 321D(7) of the Commonwealth Electoral Act 1918 with respect to the broadcasting of any political matter at the request of another person, which imposes obligations to provide certain particulars relating to the source of the information.

62 There are other statutory requirements on the Board in the ABC Act which must be taken into account in assessing the degree to which the ABC's independence includes independence from control by the Commonwealth executive. The first is that s 8(2) of the Act provides:

If the Minister at any time furnishes to the Board a statement of the policy of the Commonwealth Government on any matter relating to broadcasting or digital media services, or any matter of administration, that is relevant to the performance of the functions of the Corporation and requests the Board to consider that policy in the performance of its functions, the Board shall ensure that consideration is given to that policy.

63 The ABC Act expressly provides that nothing in this subsection is to be taken to impose a duty that is enforceable by proceedings in a court.[81]

64 Section 8(2) imposes a requirement only to consider a policy in the performance of its functions, and not to implement that policy or any element of it, which may be contrasted with legislative provisions applying to other statutory corporations which require the corporation to act in accordance with policy or directions of the executive government.[82]

1. Power of Minister to give directions to Corporation in the national interest

(1) If the Minister is of the opinion that the broadcasting of particular matter by the Corporation would be in the national interest, the Minister may direct the Corporation to broadcast that matter over all of its national broadcasting services or over such of them as are specified in the direction. If such a direction is given, the Corporation must broadcast that matter, free of charge, in accordance with that direction.

(3) Subsection (1) has effect subject to section 79A.

(3A) If the Minister is of the opinion that the provision of particular content by the Corporation would be in the national interest, the Minister may direct the Corporation to provide that content on all of its digital media services or on such of them as are specified in the direction. If such a direction is given, the Corporation must provide that content, free of charge, in accordance with the direction.

...

(5) Where the Minister gives a direction to the Corporation under this section, the Minister shall cause a statement setting out particulars of, and the reasons for, the direction to be laid before each house of the Parliament within 7 sitting days of that House after the direction was given.

(6) Except as provided by this section, or as expressly provided by a provision of another Act, the Corporation is not subject to direction by or on behalf of the Government of the Commonwealth.

66 The term 'national interest' is not defined in the ABC Act. In Re APRA, Sheppard J described the power to give directions 'in the national interest' (to the Australian Broadcasting Commission under the 1942 Act) in narrow terms, as follows:

I would not wish to provide any exhaustive definition of what may be included as being in the national interest, but, in general terms, I would think that the matters would be limited to news or information concerning threats to the security of the country, whether from an internal or an external source, and natural disasters or threats to the general health of the community due to some catastrophe.[83]

67 I respectfully agree that the term is to be interpreted in this way. For present purposes, it is sufficient to note that the direction must relate to a matter that is in the opinion of the Minister in the national interest, rather than by reference to any objective or interest of the executive government. It is also conditioned by the obligation to place the particulars of any such direction before Parliament, and is by s 78(3) controlled by s 79A which provides that it is for the ABC to determine to what extent it will broadcast political matter.[84] Other than this narrow power of direction in s 78(1), the ABC is, by reason of s 78(6), not subject to direction by or on behalf of the Commonwealth.

68 It is also appropriate to consider the application to the ABC of provisions of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act), legislation which imposes obligations directed to governance, performance and accountability on 'the Commonwealth, Commonwealth entities, and Commonwealth companies'.[85] Section 11 of the PGPA Act provides for two types of Commonwealth entities; a 'corporate Commonwealth entity', which is 'a Commonwealth entity that is a body corporate', and a 'non-corporate Commonwealth entity', which is a Commonwealth entity that is not a body corporate. A note to that section observes that:

Corporate Commonwealth entities are legally separate from the Commonwealth, whereas non-corporate Commonwealth entities are part of the Commonwealth.

69 The ABC's status as a 'corporate Commonwealth entity' for the purposes of the PGPA Act is noted in the ABC Act.[86]

70 Taking into account the note to s 11 of the PGPA Act, this is indicative of the ABC not being the Commonwealth. However, it is important to recall that the reference to 'the Commonwealth' in s 75(iii) is wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth.[87] In determining, for the purposes of s 75(iii), whether the entity is in fact the means by which the Commonwealth is carrying out activity rather than a separate entity, the fact of incorporation is inconclusive. What is more relevant is that the application of the PGPA Act to the ABC is qualified in material respects by the ABC Act.

71 First, s 22 of the PGPA Act, which permits the Finance Minister to make an order that specified Australian Government policy applies to one or more corporate Commonwealth entities, and requires the entity to comply with that policy, does not apply to the ABC.[88]

72 Secondly, although the ABC is required by the PGPA Act and ABC Act to prepare a corporate plan,[89] s 35(3) of the PGPA Act, which requires a Commonwealth entity to identify in its corporate plan how the entity's activities will contribute to achieving Australian government key priorities and objectives, does not apply to the ABC.[90]

73 Taking into account the provisions of the ABC Act which impose obligations on the Board and the ABC to act independently; which limit the ability of the Commonwealth to give directions to the ABC to the very confined circumstances of a direction being in the national interest and limit any requirements with respect to government policy to an obligation only to consider the policy; and the limited application of Commonwealth governance and accountability controls in the PGPA Act to the ABC, it is clear that the ABC has a high degree of autonomy, and independence from Commonwealth control.

Whether the corporation is subject to audit by the Commonwealth Auditor-General

74 There is no provision for the ABC to be audited by the Auditor-General. Where an entity is audited by the Commonwealth Auditor-General, that has been recognised as indicating a degree of control by the Commonwealth.[91] The absence of that requirement is consistent with the independence of the ABC from the Commonwealth.

Whether the corporation is funded by appropriations from consolidated revenue

75 The ABC receives funding as appropriated by Parliament from the consolidated revenue.[92] The Finance Minister may also lend money (appropriated from the consolidated revenue) on behalf of the Commonwealth to the ABC, on terms and conditions determined by the Finance Minister.[93] The ABC may borrow from someone other than the Commonwealth only with the approval of the Finance Minister.[94] It may also raise revenue from merchandising and related activities, but is prohibited from advertising in its broadcasting and digital functions, and from accepting any payment or other consideration for the broadcasting of any announcement, program or other matter.[95]

76 The ABC is not subject to taxation under any law of the Commonwealth or of a State or Territory.[96]

77 The effect of these provisions is that the ABC is dependent to a high degree on the Commonwealth for the funding of its operations. Its ability to borrow from third parties is subject to some control by the executive in the requirement that any such borrowing be approved by the Finance Minister. It is also true that the provisions make clear a distinction between the Commonwealth, and the ABC as a separate entity which may receive and borrow money from the Commonwealth, or from third parties. This latter aspect is really no more than a recognition that the ABC, as a statutory corporation, has a distinct legal personality to the Commonwealth. As noted above, however, in determining whether the entity is in fact the means by which the Commonwealth is carrying out activity rather than a separate entity, the fact of incorporation is inconclusive.

78 The provisions as to the financing and financing obligations of the ABC are, considered as a whole, a neutral consideration in that they do not establish independence from the Commonwealth, but are also not inconsistent with the ABC being an independent entity.

Other legislation relevant to the status of the ABC

79 The ABC submitted that while not decisive, it was relevant to take into account provisions of other Commonwealth legislation which reinforce the ABC's independence from government. Most relevantly:

(a) The Criminal Code Act 1995 (Cth) provisions relating to secrecy of information, which are in Chapter 5 dealing with 'The security of the Commonwealth', create certain offences for a person who obtained information when they were or are a Commonwealth officer.[97] The definition of 'Commonwealth officer' excludes 'an officer or employee of, or a person engaged, by, the [ABC]'.[98]

(b) The National Anti-Corruption Commission Act 2022 (Cth) provides that the Commissioner may, for the purposes of a corruption investigation, enter any place occupied by a Commonwealth agency.[99] Certain premises are excluded from the operation of that provision, including premises occupied by the ABC.[100]

80 These provisions reinforce the status of the ABC as an entity which is intended to operate independently of the Commonwealth.

The ABC is not the Commonwealth for the purposes of s 75(iii) of the Constitution

81 The above matters considered together, and giving particular emphasis to the provisions which limit the control which may be exercised by the Commonwealth executive over the ABC and its Board, have the effect that the ABC cannot be characterised as an entity through which the Commonwealth conducts its functions. It is rather, an entity established by the Commonwealth to operate as an independent entity.

82 The ABC is not, therefore, 'the Commonwealth or a person being sued on behalf of the Commonwealth' for the purposes of s 75(iii) of the Constitution.

Question (b): is the whole of VCAT proceeding H228/2021 nevertheless a 'matter' within federal jurisdiction because it involves a matter arising under the Commonwealth Constitution, or involving its interpretation?

84 Again, the parties were agreed that this question should be answered 'No'. Their submissions in support of this conclusion were put with some, ultimately relatively minor, differences, but their submissions were also relevant to the separate issue of the Tribunal's power and duty to decide on the jurisdictional question itself. I address that separately below.

85 I have also concluded that the answer to Question (b) is no, for the following reasons.

86 The Applicants' position on Question (b) was that the answer to the question is 'No', because:

VCAT had the power (and duty) to determine the limits of its own jurisdiction. Even if it was necessary to interpret Commonwealth law to decide whether it had jurisdiction in the proceedings, this would not have made H228/21 a matter within federal jurisdiction as the Respondent's raising of the jurisdictional query is not a defence which goes to the merits of the dispute and only goes to the preliminary issue of whether VCAT has jurisdiction.[101]

87 The ABC submitted that answering Question (b) as stated involved considering the issue at two points in time. It submitted that:

(i) Until this Court rules on the jurisdictional issue raised by Q(a), there is an unresolved issue ("controversy") as to whether the ABC is "the Commonwealth" for the purposes of s 75(iii) of the Constitution, and consequently whether VCAT has jurisdiction to determine the proceeding.

(ii) However, if this Court decides that the ABC is not "the Commonwealth" ... then there is no longer any unresolved issue as to whether VCAT has jurisdiction and there is no constitutional impediment to VCAT exercising (State) judicial power to determine the proceeding.[102]

88 It also submitted that despite the constitutional limit on a State tribunal determining federal matters, the Tribunal has a power and duty to form an opinion on whether it has jurisdiction over a proceeding, also citing Citta Hobart Pty Ltd & Anor v Cawthorn.[103] The ABC made submissions as to the nature of the power that the Tribunal would be exercising in considering that jurisdictional question, which are considered further below. However, the ABC contended that the Tribunal may take steps in the proceeding that do not involve it exercising judicial power in a dispute, such as referring the matter to a court under s 77 of the VCAT Act, or referring a question of law under s 96, because that does not involve any exercise of judicial power with respect to a federal matter or controversy. It was submitted that it was appropriate, in this situation of a genuine controversy as to whether the ABC is the Commonwealth, for the Tribunal to have referred the question of law to the Court pursuant to s 96.

89 Given my conclusion that the ABC is not the Commonwealth, it is not necessary, in order to answer Question (b) as at this point in the proceeding, to consider whether there was a matter arising under the Constitution or involving its interpretation prior to this point in time. That question does have a relationship to the issue, raised by the Applicants and noted by the Respondents, and which is central to the Attorney-General's submission, of the Tribunal's power and duty to decide its jurisdiction for itself. However that issue does not have to be explored in detail for the purposes of answering Question (b).

The principles relevant to Question (b): the meaning of a 'matter' and the effect of the issue as to the status of the ABC having arisen for determination on whether the proceeding remains a federal matter.

90 Sections 75 and 76 of the Constitution identify the 'matters' in which the High Court has original jurisdiction and in which the Commonwealth Parliament may make laws conferring original jurisdiction on the High Court. It is these federal 'matters' the adjudication of which is reserved to federal and State Courts.

91 A 'matter' is not co-extensive with a legal proceeding, but is a justiciable controversy which is the subject matter of a dispute that might come before a Court in a legal proceeding.[104] The High Court has observed that a 'matter':[105]

... is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy.[106] What comprises a "single justiciable controversy" must be capable of identification, but it is not capable of exhaustive definition. "What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships".[107]

The requirement that, for there to be a "matter", there must be an "immediate right, duty or liability to be established for the determination of the Court"[108] reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy,[109] and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.[110]

92 A consequence of the recognition that a 'matter' encompasses all claims within the scope of a controversy, and that if a federal claim is genuinely raised and not on its face incapable of legal argument it is sufficient to bring the matter within federal jurisdiction even if it may not be established,[111] is that if a Commonwealth law or the Constitution is relied on as a source of a claim or a defence in a proceeding, the asserted claim or defence operates to characterise the totality of the justiciable controversy as being in federal jurisdiction.[112] It is also established that such a proceeding will continue to be regarded as involving federal jurisdiction even if the federal claim is rejected, or if it is struck out at a preliminary stage.[113]

93 The question in this case is whether the above principles compel the following conclusion: because the issue of whether the ABC is the Commonwealth for the purposes of s 75(iii) was raised, and was the subject of determination in this Court, the proceeding as a whole is a federal matter notwithstanding this Court's determination that the ABC is not the Commonwealth. Put differently, does the determination of the jurisdictional question, involving interpretation of the Constitution, mean that the controversy as a whole has involved adjudication of a federal matter so that the Tribunal would, on that analysis, have no power to the determine the substantive proceeding?

The arguments as to whether the proceeding nevertheless involved a 'matter'

94 The ABC contended that this result will not follow if the reason that federal jurisdiction issue arises is not because of a claim or a defence that is asserted, but because of the identity of the parties - for example because one of the parties might be 'the Commonwealth' or where the matter relates to residents of different States.[114] It is submitted that in the latter category of cases, resolution of the issue 'goes only to the preliminary issue of whether [the Tribunal] has jurisdiction, and not to the merits of the underlying dispute', and that determination as to jurisdiction 'is a step preliminary to the adjudication of the dispute'. It was contended that the federal issue was, therefore, 'severable'.[115] The ABC submitted that this situation can be contrasted to a case such as Citta Hobart where the proceeding involved a mix of federal and State claims and defences.

95 It was submitted that the decision that no jurisdiction exists is necessarily anterior to the exercise of jurisdiction,[116] and that it follows that a decision that jurisdiction does exist must equally be anterior to the exercise of jurisdiction.

96 The ABC notes in support of this position that in Meringnage, where the Commonwealth was named as one of the respondents in Tribunal proceedings, the position was not that the Tribunal had no jurisdiction over the dispute to the extent that it involved the other respondents; it simply did not have jurisdiction to determine the application for relief as against the Commonwealth.[117] It also relied by analogy on Flaherty v Girgis, in which the High Court, although accepting that the determination of questions regarding service under the Service and Execution of Process Act 1901 (Cth) involved the exercise of federal jurisdiction, held it would only be exercising federal jurisdiction in determining the matter if its authority to decide the substantive matter was derived from federal law.[118]

97 The Applicants agreed that the power to determine whether a matter was within jurisdiction was an anterior question, which went only to 'the preliminary issue of whether [the Tribunal] has jurisdiction and not the merits of the underlying dispute'. The mere raising of that jurisdictional question did not, therefore, deprive the Tribunal of jurisdiction.[119] The Applicants' submissions otherwise focussed on the contention that the Tribunal had the duty to consider and decide the question of jurisdiction for itself and should not have referred the questions to this Court.

98 The Attorney-General for Victoria did not make specific submissions as to how Question (b) should be answered. However, the Attorney-General did make helpful submissions as to the status of the Tribunal proceeding following the determination of Question (a) by this Court, which were broadly consistent with the submissions made on behalf of the ABC. The Attorney-General submitted that if this Court finds that the ABC is not the Commonwealth, the proceeding will not be a matter in federal jurisdiction, because the Court's determination of the question 'will not have involved an exercise of federal judicial power (that power being anterior to the adjudication of the legal rights of the parties, and not entailing the adjudication of any federal claim)'.[120] The Attorney-General rejected any need to characterise the issue as one of the federal issue being 'severable', emphasising that the jurisdictional question was anterior to the adjudication of the federal claim.

99 The Attorney-General refined her submissions with respect to the nature of conclusions as to jurisdiction by reference to a decision of the Western Australian Court of Appeal which was delivered days before the hearing, Hanssen Pty Ltd v Owners of Strata Plan 58161.[121] Hanssen involved a dispute about residential apartment complex between the building services provider, Hanssen, and the strata company. The dispute had involved the strata company applying to the Building Commissioner for a building remedy order. That application was transferred to the State Administrative Tribunal. Hanssen applied to the Tribunal for an order dismissing the application on the basis that the proceedings concerned a federal matter by reason that it arose:

(a) under Commonwealth laws, namely the Corporations Act 2001 (Cth), because of Hanssen's status as a corporation under that Act; and/or

(b) under the Constitution or involving its interpretation, on the basis that even if the Corporations Act submission was wrong, the fact that the argument had been genuinely raised in the Tribunal made it a matter arising under the Constitution or involving its interpretation.

100 The Court of Appeal rejected both arguments. Importantly for present purposes, the Court, in considering the second of the arguments, drew a distinction between the 'substantive matter' and the 'jurisdictional matter'. The Court summarised its conclusions, based on that distinction, as follows:[122]

The substantive matter concerns whether the building services were faulty or unsatisfactory, and the consequent rights and liabilities of Hanssen and the Strata Company. The jurisdictional matter concerns the identity of the bodies which have authority to determine the substantive matter. A genuinely raised jurisdictional matter which is not on its face incapable of legal argument by definition arises under s 76 of the Constitution or involves its interpretation. However, the mere existence of a controversy as to which bodies have jurisdiction to determine the substantive matter is insufficient to characterise the substantive matter as a matter arising under the Constitution or involving its interpretation. Hanssen's incorrect assertion that the substantive matter is in federal jurisdiction therefore does not have the self-fulfilling effect for which Hanssen contends. In determining the substantive matter, the Tribunal is not determining a matter arising under the Constitution or involving its interpretation.

101 In coming to this conclusion the Court of Appeal referred to the established distinction between the matter as a justiciable controversy and the proceeding brought for its determination;[123] the authority to the effect that a controversy about the jurisdiction of a particular forum may itself constitute a matter under the Constitution;[124] and noted the differences between cases in which the federal issue relates to the authority of a body to adjudicate a matter, and those in which a federal issue may arise in the context of a claim or defence in the proceeding.[125] The Court then explained its understanding of the independent concepts of jurisdictional controversies and substantive controversies:[126]

In our view, in identifying a matter arising under the Constitution or involving its interpretation, it is necessary to distinguish between:

1. jurisdictional controversies arising under ch III of the Constitution which concern the authority of a court or tribunal to adjudicate on a substantive controversy which is the subject of proceedings before that court or tribunal; and

2. substantive controversies about the validity of a law which do not concern the authority of a court or tribunal to adjudicate on the matter but rather concern the substantive rights, duties and liabilities at issue between the parties.

In either case there will be a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution. In the first class of cases, the matter will arise under s 75 to s 77 of the Constitution or involve the interpretation of those provisions. In the second class of cases the matter will generally arise under a provision standing outside of Ch III of the Constitution .... In the second class of case, the whole of the substantive controversy which is the subject of the proceedings will generally be characterised as a matter identified in s 76(i) of the Constitution. However, this will generally not be so in the first class of cases.

A substantive controversy and a jurisdictional controversy will generally constitute separate matters. If it were otherwise, then any genuinely raised claim that the substantive controversy was within federal jurisdiction would, at least where the claim was not incapable on its face of legal argument, necessarily bring the substantive controversy within federal jurisdiction. A genuinely raised claim, not incapable on its face of legal argument, that a matter not otherwise identified in s 75 or s 76 of the Constitution was within federal jurisdiction would be self-fulfilling, even if the claim was plainly incorrect.

102 The Court of Appeal concluded that the jurisdictional matter did not characterise the parties' rights, duties or liabilities at issue in the substantive matter, and they remained separate controversies, so that even where a jurisdictional issue involves a constitutional question, that will not be sufficient to characterise the substantive matter as a matter arising under the Constitution or involving its interpretation.[127]

103 Counsel for the Attorney-General acknowledged that Hanssen should be followed unless it was plainly wrong, and did not submit that the authority was plainly wrong. The Attorney-General did reserve her position on whether Hanssen was correctly decided, while accepting that the effect of applying that authority would be to determine Question (b) to the effect that there was no remaining federal 'matter' if the ABC is not the Commonwealth.[128]

104 The ABC also relied on Hanssen, taking the position that the decision was correct,[129] at least insofar as it applied to the resolution of this proceeding. It was submitted that Hanssen supported the ABC's submission that a jurisdictional issue going only to the identity of the parties (rather than the underlying dispute) was severable from the dispute.[130] It was submitted that the decision supported the position that 'as long as the Tribunal is looking only at a jurisdictional issue that doesn't go to the underlying dispute, that's a different "matter."'[131]

105 The Applicants also adopted the conclusions in Hanssen that the jurisdictional matter does not characterise the substantive matter, for the reasons given by the Court of Appeal.[132]

The substantive Tribunal proceeding is not a 'matter' arising under the Constitution or involving its interpretation, and the Tribunal has jurisdiction to determine it

106 The characterisation of 'the matter' in this proceeding after a determination by this Court that the ABC is not the Commonwealth involved some complexity and nuance in the parties' submissions. However there was ultimately little, if any, material distinction between the ABC's characterisation of an issue which goes to whether the forum had jurisdiction over the parties being 'severable' from the substantive dispute, and the Attorney-General's observation that issues of jurisdiction involve an anterior question to the adjudication of the substantive legal rights of the parties. The Court of Appeal's focus in Hanssen was on the distinction between jurisdictional matters and substantive matters. The ABC's submissions may have involved some further level of analysis in emphasising the distinction between whether the jurisdictional issue arises because it relates to a claim or a defence that is asserted in the proceeding, or because of the identity of the parties. If there is ultimately any distinction between the reasoning in Hanssen and the positions taken by the ABC and the Attorney-General, it does not affect the way in which Question (b) is to be answered.

107 Firstly, a trial judge of this Court will not depart from a decision of an intermediate appellate Court unless convinced that it is plainly wrong. I am not persuaded that Hanssen is wrong, and the decision directly assists the resolution of Question (b).[133] The question of whether the ABC is 'the Commonwealth' within the meaning of s 75(iii) of the Constitution (for the purposes of whether the Tribunal has authority to determine the proceeding to which it is party) is plainly a jurisdictional matter as described in Hanssen.[134] It is separate to the substantive controversy between the Applicants and the ABC relating to claims under the RRT Act in the Application. The federal nature of the question to be resolved in determining the jurisdictional controversy does not have the effect of characterising the substantive controversy.[135] The binding resolution of the jurisdictional question in this Court, with the determination that the ABC is not the Commonwealth, does not determine the parties' rights and liabilities in the substantive matter, which the Tribunal may proceed to hear and determine.[136]

108 Secondly, applying the reasoning in Hanssen or any variations of reasoning (if they are in fact variations) in the parties' analyses, the same result will arise. That is so at least in this case, where the jurisdictional issue arises because of the identity of one of the parties, rather than a claim or defence in the substantive proceeding before the Tribunal. The jurisdictional issue can be identified as an 'anterior' question in the sense referred to by the Applicants, the ABC and the Attorney-General,[137] as well as being characterised as a separate jurisdictional matter in the sense identified in Hanssen. The distinction identified by the ABC between a jurisdictional question which arises only from the identity of the parties (as in this case) and one which relates to a claim or defence in the substantive controversy between the parties may call for some different analysis in a case involving that second category of jurisdictional question. That is not an issue that need be further considered in this proceeding.

109 The answer to Question (b) is, for these reasons, 'No'.

Did the Tribunal have the power and the duty to decide the question of jurisdiction for itself?

110 As noted above, the focus of the submissions of the Attorney-General for the State of Victoria was that the Tribunal had a power and duty to decide the question of jurisdiction, including in a proceeding of this nature where the jurisdictional question involved interpreting the Constitution to decide whether the ABC was the Commonwealth. The Applicants and the ABC also made submissions on this issue.

111 The Applicants submitted that it was established that Tribunals have 'anterior jurisdiction to determine whether matters which come before them fall within the limits of their jurisdiction', noting that this proposition was confirmed by Citta Hobart and Thurin v Krongold.[138] They submitted that the Tribunal should have determined the question of jurisdiction itself; that it was inappropriate for the ABC to have sought that the Tribunal either transfer the matter pursuant to s 77 or refer a question of law under s 96 (in particular at a late stage of the proceeding in the Tribunal), and that it was wrong of the Tribunal to have referred the question of law rather than simply proceeding to determine the matter itself. The Applicants accepted that the Tribunal had the power under s 96 to refer a question of law which may relate to its jurisdiction, but said that it was obliged first to decide the issue for itself, before referring any question. The Court would then have 'the benefit of the tribunal's consideration of it in light of its vast experience in these matters and the factual matters before it.'[139] It was said that the Tribunal was compelled by authority to decide the matter first before any referral.[140] The Applicants relied in particular on the following observations of Edelman J in Citta Hobart:

Like a court, if there is doubt a tribunal must "satisfy itself whether a claim made to it is within its limited authority".[141] In short, a tribunal must "make up its mind" about its authority to decide.[142]

112 Counsel for the Applicants also relied on an observation of Blackburn J, sitting in the Northern Territory Land and Valuation Review Tribunal, in Re Cilli's Objection, that a tribunal must 'receive and consider, whenever the point is taken, an argument that it has no jurisdiction.'[143]

113 The ABC acknowledged that a tribunal has the power and duty to decide whether it has jurisdiction, but submitted that referring a question of law to this Court was an appropriate course in any case of a contestable question of jurisdiction in any federal matter, not least because the determination of the Court, exercising federal jurisdiction, would give rise to a binding resolution of that federal controversy.[144] On the nature of the Tribunal's power to decide the question of jurisdiction itself, the ABC initially submitted that the Tribunal would be exercising judicial power when deciding its own jurisdiction, on the basis that the power to determine jurisdiction takes its nature from the power it would exercise if it had jurisdiction;[145] but in the course of submissions the ABC refined that characterisation as being an 'incidental power'.[146]

114 The Attorney-General for Victoria made submissions that:[147]

(a) the Tribunal has the duty and power to decide for itself whether it has jurisdiction in a given dispute. That is so even where the issue is whether the dispute is a 'matter' in federal jurisdiction under ss 75 or 76 of the Constitution.

(b) In exercising the power to decide whether it has jurisdiction, the Tribunal does not exercise federal judicial power, but State judicial power or non-judicial power. That decision making process on jurisdiction does not, therefore, transgress the limitation in Burns v Corbett.

(c) It was open where the question of federal jurisdiction is more 'contestable' for the Tribunal to exercise its discretion to refer a question to the Court under s 96 of the VCAT Act.

115 The parties initially took different positions as to the nature of a Tribunal's exercise of power in deciding the question of jurisdiction, including whether it was judicial in nature.[148] This gave rise to potential questions as to whether there may be any limitation on the nature of the issues on which a Tribunal could decide, for example where deciding a question of jurisdiction would, as in this case, involve the Tribunal interpreting the Constitution.

116 Ultimately, the parties were broadly in agreement that the Tribunal would be exercising an incidental power which was not necessary to characterise further, because the effect of the exercise of the power was not to determine legal rights, obligations and duties in a binding way, but to form an opinion and reach a non-binding conclusion.[149] I agree that it was not necessary, in answering the referred questions, to determine the issue of exactly how that power should be characterised. It may be useful, however, to make the following brief observations on the authorities which support the characterisation of the Tribunal's power to decide whether it has jurisdiction as involving a non-binding opinion, the formation of which will not transgress constitutional limitations.

The authorities on the nature of a tribunal's decision as to its own jurisdiction

117 A useful starting point in the analysis is the judgment of Brennan J, sitting in his capacity as President of the Commonwealth Administrative Appeals Tribunal, in Re Adams and the Tax Agents Board,[150] a case cited by the plurality in Citta Hobart.[151]

118 Mr Adams sought review of the Tax Agents Board's decision to cancel his registration, pursuant to a section of the Income Tax Assessment Act 1936 (Cth) which empowered the Board to cancel the registration of a tax agent upon his bankruptcy. Mr Adams contended that the section was unconstitutional. Justice Brennan, before addressing this argument, noted that it raised the question of whether the AAT had the power to consider it. His Honour decided that it could, on the basis that an administrative body had a means to form an opinion, which did not have legal effect, but enabled it to mould its conduct according to the law.

119 In the course of resolving that issue, Brennan J made the following observations:[152]

Neither the Tribunal nor the Board is vested with that power to which the Constitution refers as the judicial power of the Commonwealth. It is to a court in which the judicial power of the Commonwealth is vested that questions of constitutional validity of federal legislation are submitted for decision. A definitive answer to a question of constitutional validity requires the exercise of that judicial power, and can therefore be given only by a court in which that judicial power is vested.

...

It follows that neither the Tribunal nor the Board can give a definitive answer to the question of constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. ...

Although [an administrative body] cannot judicially pronounce upon the limits [of its authority] its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, so that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.

120 Justice Brennan considered the position in the United States where administrative actors have no power or authority to consider or question the constitutionality of legislation, subject to very narrow exceptions. His Honour observed that while there are strong arguments to support the view that an administrative body ought not to refrain from acting on a statute except in a clear case of constitutional invalidity, the administrative body must at least be at liberty in such a clear case of invalidity to refrain from acting, lest it be bound to perform unauthorised and potentially wrongful acts.[153] As to the nature of the administrative body's power, Brennan J concluded:[154]

If it be allowed that there is, in Australian legal theory, a competence in an administrative body to consider and form an opinion upon the constitutional validity of a statute in order that the body may act in accordance with law, the competence to form the opinion and to be informed on the question of constitutional invalidity should not be treated as a jurisdiction invested in the administrative body to reach a conclusion having legal effect. It is merely a means which the administrative body may adopt in moulding its conduct to accord with the law.

121 In Citta Hobart, the plurality discussed the duty of a tribunal to comply with the limits of its own jurisdiction, and the corresponding power to ensure compliance with that duty, and observed:[155]

If not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, that power is necessarily implied on the basis that "everything which is incidental to the main purpose of a power is contained with the power itself".[156]

122 The plurality then made some observations about the nature of the power of different bodies to decide or determine jurisdiction, noting first that the power is neither inherently judicial nor inherently non-judicial, and that rather, the power takes its nature from the nature of the power to which it is incidental.[157]

123 Their Honours then made specific observations about the nature of the power in different bodies.

(a) A court invested with judicial power has jurisdiction to determine judicially whether it has jurisdiction.[158]

(b) A tribunal that is not a court and is invested with non-judicial power has the non-judicial power:[159]

... to "make up its mind" or "'decide' in the sense of forming an opinion' about the limits of its own jurisdiction 'for the purpose of determining its own action'.[160] The authority is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding its conduct to accord with the law."

It was in this context that the plurality cited Re Adams.

(c) As to a State tribunal that is not a court, but on which State judicial power is conferred, it 'must be taken to have incidental jurisdiction to determine whether the hearing and determination of a particular claim or complaint would be within the legislated limits of its State jurisdiction', and that because the power takes its nature from the nature of the power to which it is incidental, it is itself a State judicial power.[161] Their Honours observed:[162]

Accordingly, the State tribunal exercises judicial power when it decides that a claim or complaint in respect of which its jurisdiction is sought to be invoked is or is not a matter of a description referred to in s 75 or s 76 of the Constitution.

124 The position of a body like the Tribunal which is invested both with State judicial power and decision-making powers of a non-judicial nature was not specifically addressed. It would appear from their Honours' discussion that the characterisation in either (b) or (c) above would follow, depending on the nature of the power that the Tribunal would exercise if it was to determine the substantive proceeding.

125 There was no specific discussion in Citta Hobart of the situation where a tribunal invested with State judicial power must engage in interpreting the Constitution for the purposes of determining its jurisdiction, and whether this would properly be described as an exercise of State judicial power, or involve a different characterisation. However, there is some guidance on that issue in paragraph [25] of the plurality's decision, summarised at [123(c)] above, where their Honours addressed the position of State tribunals on which State judicial power is conferred, and cited the decision of the Court of Appeal of the Supreme Court of New South Wales in Wilson v Chan & Naylor Parramatta Pty Ltd.[163] In the passages of that decision cited in Citta Hobart, White JA (with whom Macfarlan and Leeming JJA agreed), described the State tribunal's power to decide questions of jurisdiction as involving a decision which was 'anterior to the exercise of federal jurisdiction', and as resulting in an answer which 'could not be definitive'.[164] White JA cited the decision of Brennan J in Re Adams in characterising the power of the tribunal to consider the limits of its authority as arising so it may be satisfied that its proceedings are in accordance with law, and in order that it may appropriately mould its conduct.[165]

126 This suggests that even taking into account the characterisation by the plurality in Citta Hobart of the power of a state Tribunal invested with State judicial power to decide its jurisdiction as involving State judicial power,[166] that power remains one the exercise of which will not result in a binding decision in the same way as a judicial decision of a court, at least where the jurisdictional question involves a federal matter.

127 Decisions of the Court of Appeal subsequent to the decision in Citta Hobart also indicate that the important consideration in every case is the non-binding nature of a tribunal's determination.

128 In Thurin v Krongold and Krongold v Thurin the Court of Appeal made observations about the Tribunal's duty to decide questions of jurisdiction, in the context of a Tribunal proceeding which would have required the exercise by the Tribunal of judicial power.

129 In Thurin v Krongold, the Court of Appeal referred to the duty of a court or quasi-judicial body such as the Tribunal to identify whether or not it has jurisdiction and noted that it does not entail exercising judicial power, nor the adjudication of any federal controversy.[167]

130 In Krongold v Thurin, the Court of Appeal referred to the authority of a State tribunal that is not a 'court of a State' on which State judicial power is conferred and observed that it has (citing the observations made in the paragraph of Citta Hobart dealing with tribunals invested with non-judicial power):[168]

has authority - in the exercise of non-judicial power - to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action". The authority is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding its conduct to accord with the law".[169]

131 The Court of Appeal concluded that the Tribunal had power to 'form an opinion as to its jurisdiction for the purposes of determining its own action'.[170]

132 Both decisions indicate that an important element of the characterisation of the power of the Tribunal to decide its jurisdiction in a proceeding the resolution of which would involve judicial power is that it does not involve adjudication, and is appropriately to be characterised as forming an opinion.

133 In Thurin v Krongold, the Court of Appeal referred to a decision of the NSW Court of Appeal, Gaynor v Attorney-General for New South Wales.[171] In that case, Leeming JA referred to the 'difference between an authoritative, binding determination of a dispute between the parties by the exercise of judicial power, and the expression of an opinion', the latter being all a State tribunal can do in a proceeding involving a federal issue.[172]

134 The proposition which emerges from the cases appears to be that the Tribunal's power to decide whether it has jurisdiction will in all cases involve forming an opinion which will enable it either to proceed to hear a proceeding if it concludes that it is authorised to do so, or decline to proceed if it is of the opinion that it does not have that authority. That opinion or conclusion will not have determinative legal effect, but will have the important practical effect of permitting the Tribunal to proceed to hearing, or if there is no jurisdiction, to strike out a matter or refer it under s 77 of the VCAT Act.[173] Both avenues would be subject to appeal or review[174] by a Court which can legally determine the jurisdictional questions, but this does not alter the ability of the Tribunal to form the conclusion in order to perform its duty to decide whether it has jurisdiction.

Conclusions on the Tribunal's powers to decide jurisdiction

135 It is unnecessary to make any further observations as to the precise nature of the Tribunal's power to decide its jurisdiction in a case like this. The issues involving interpretation of the Constitution in this case were referred to this Court, which plainly does have jurisdiction to determine them.

136 It is also clear, in my view, that accepting that the Tribunal has a duty to determine its jurisdiction, and a corresponding power,[175] a legally valid way of the Tribunal discharging that duty is to act under s 96 of the VCAT Act and refer a question of law for the opinion of the Supreme Court. The Tribunal will have the opinion of the Court as to jurisdiction and can then act accordingly to ensure that it remains within the limits of its jurisdiction. As observed by Brennan J in Re Adams, the formation of an opinion as to jurisdiction by an administrative body is not one 'which the members must personally exercise' and they may be guided by the competent legal advice of others.[176]

137 Contrary to the Applicants' submissions, the Tribunal was not obliged to analyse and decide the jurisdictional questions itself. The observations in the authorities relied on by the Applicants[177] to support the submission that the Tribunal was obliged to answer the question of jurisdiction itself, but could subsequently refer that question to the Court pursuant to s 96 do not, in my view, have that effect. The authorities emphasise the duty of a Tribunal to decide its own jurisdiction before proceeding or declining to determine a matter, as well as the obligation to determine jurisdictional questions when raised. However there is nothing in the observations which would suggest that the Tribunal, in discharging that duty, may not use a statutory avenue of informing itself on a question of law relevant to its jurisdiction, such as s 96 of the VCAT Act.

138 It was, therefore, open to the Tribunal to obtain an answer to questions relevant to jurisdiction by referring them to this Court under s 96 of the VCAT Act, with a view to, on receipt of the Court's answer to the questions as to whether there was a federal matter arising, forming an opinion or satisfying itself as to its jurisdiction or the absence thereof, depending on the answer.[178]

139 In a case raising a novel or complex issue, the prompt referral of a question under s 96 may be the most appropriate course. As submitted by the ABC, there would be some considerable risk in the Tribunal relying on its own opinion as to the status of the ABC, and, if it formed the view that the ABC was not the Commonwealth, proceeding to determine a case. If a Court later found that the Tribunal was incorrect, it would have invalidly purported to adjudicate a federal dispute.[179] Equally, in other cases, where the question of whether an issue of federal jurisdiction arises is straightforward or has already been decided (such as whether incorporation of a party under the Corporations Act would alone give rise to a federal matter;[180] or where the Commonwealth is named as such as a party)[181] the Tribunal could be expected to make a conclusion itself about the existence or otherwise of jurisdiction to hear a matter.

Conclusion: both referred questions are answered 'No'

140 For the reasons above, the referred Questions are answered as follows:

Question (a): Is the respondent in proceeding H228/2021 (the ABC) the Commonwealth or a person being sued on behalf of the Commonwealth for the purposes of s 75(iii) of the Commonwealth Constitution?

Answer: No.

Question (b): Is the whole of proceeding H228/2021 nevertheless a 'matter' within federal jurisdiction because it involves a matter arising under the Commonwealth Constitution, or involving its interpretation?

Answer: No.

141 The Applicants raised the question of whether an order was required remitting the matter to the Tribunal.[182] As the Tribunal is already seized of the proceeding, there is no requirement for any remittal order. The Tribunal may proceed on the basis of the answers to the referred questions as set out in the orders I will make, and these reasons.

142 The Applicants sought orders that the ABC pay its costs relating to the hearing of the referred questions. They submitted that the circumstances in which the referral was made, including delay on the part of the ABC in raising the question of jurisdiction with the Tribunal and resultant inconvenience and prejudice to the Applicants, and inconsistent positions taken in the course of the proceedings as to the question of jurisdiction,[183] were such that the ABC ought pay both parties' costs of the referral in this Court. The Applicants also renewed submissions, first made in a directions hearing in this referral, that the questions ought not have been referred to this Court.[184]

143 The Applicants accepted that this Court would not, on the referral of the questions of law, make any order in relation to costs incurred by them in the Tribunal proceeding.

144 The ABC submitted that there should no order for costs against it, and that costs in this Court should be the costs in the proceeding.[185]

145 For the reasons discussed above at [136] to [139], it was an appropriate course for the Tribunal to refer the questions to this Court. They involved issues the resolution of which serves a public interest of clarifying the status of the ABC, but also served the interest of the Tribunal ensuring that it did not proceed in a case where there was a risk that the matter was beyond its power to determine. Question (b) involved legal principles of some complexity as to the status of the proceeding, which were not at the time of the referral plainly the subject of appellate authority, given that the judgment in Hanssen was not delivered until days before the hearing in this Court. The issue of whether the proceeding as a whole may involve a federal matter, once the question of whether the ABC was the Commonwealth was raised affected the Tribunal proceeding from the time the issue was genuinely raised, and required resolution. It was appropriate for that issue to be resolved with the assistance of answers from this Court.

146 The ABC conducted the proceedings in this Court in an efficient way. It made submissions which were comprehensive but direct, and which provided assistance to the Court (as did the submissions made by the Applicants and the Attorney-General for Victoria).

147 The Tribunal is empowered by s 109 of the VCAT Act to consider any appropriate costs orders relating to costs in the Tribunal, including costs relating to whether the questions should be referred, and the matters raised by the Applicants may be relevant to any application they wish to make to the Tribunal pursuant to that section.

148 My inclination is that it is not appropriate that the ABC pay the Applicants' costs in this Court. To allow for the possibility that there may be some further matter that it is appropriate for the parties to raise with respect to costs following delivery of this judgment, I will give leave to the parties to make any further submissions as to costs within a week, and will make orders after that time.

149 The Applicants' alternative position was that they sought an indemnity certificate under s 19 of the Appeal Costs Act 1998 (Vic) for the costs of the hearing of the questions in this Court. The ABC did not object to the Applicants seeking a certificate.[186]

19 Cases stated and questions of law reserved for opinion

(1) If in any proceeding -

(a) a case is stated for the opinion or determination of a superior court on a question of law; or

(b) a question of law is reserved in the form of a special case for the opinion of a superior court -

any party to that proceeding other than a party who is or represents the Crown, may apply to the superior court for, and the court may grant, an indemnity certificate in respect of the costs that the party has incurred in respect of the proceeding on the case stated.

(2) Subject to subsection (3), a party granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the party in the approved form, an amount equal to that party's own costs of the proceeding on the case stated that the Board considers to have been reasonably incurred.

(3) The maximum amount payable to a party pursuant to an indemnity certificate granted under subsection (1) is $50 000 or any other amount that is prescribed.

151 The Appeal Costs Act defines 'case stated' as meaning:

(a) a case stated for the opinion or determination of a superior court on a question of law; or

(b) a question of law reserved in the form of a special case for the opinion of a superior court ...

152 I consider that although s 96 of the VCAT Act does not describe the referral in terms of a 'case stated', the process provided for in that section of referring 'any question of law arising in a proceeding to the Trial Division of the Supreme Court or the Court of Appeal for decision' in substance satisfies the description of a case stated.

153 In Director of Public Prosecutions v Norman, Kellam J, in the context of considering s 19 of the Appeal Costs Act, observed:[187]

A case stated is a process that enables a court or a tribunal in the course of proceedings before it to submit to a superior court for its opinion a question of law which arises from the facts stated in the case.

154 His Honour cited Industrial Equity Ltd v Commissioner for Corporate Affairs, where the Full Court of the Supreme Court observed in the context of the power in s 85 of the Magistrates Court Act 1971 to state a case for the determination of the Supreme Court, relevantly for present purposes, that a case stated should set out explicitly all findings of fact on which the question is to be determined, and the Court is required to confine itself to the facts stated.[188]

155 This understanding of a 'case stated' was confirmed by the Court of Appeal in De Simone v Bevnol Constructions (No 2) which addressed the question of whether a certificate under s 19 of the Appeal Costs Act was available in a referral of a question of law under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court of Appeal observed:[189]

It is long established, subject of course to the requirements of any particular statute, that in the case of each procedure it is essential that the "case" state the decision (if any) below, the question and the ultimate facts found by the court below, including those found by inference. ... In Assange,[190] Hayne JA observed that:[191]

The thread that runs through all the authorities to which I have referred is that the court to whom the case is stated must confined itself to the facts that are stated and to the questions that are reserved. As a general rule, the court is not at liberty even to draw inferences from the facts that are stated.

Thus, when Parliament enacted the 1998 AC Act and included the above references to case stated and special case it did so in the context of a well-known understanding and usage of those procedures.

156 The Court of Appeal noted that the power to refer a question of law in s 33(1) of the Charter is not expressed as a power to state a case or a special case, and is rather a discretionary power to refer a question of law of the type mentioned in the section. The Court also referred to Orders 5 and 6 of the Supreme Court (Miscellaneous Proceedings) Rules 2018 relating to a referral of a special question or case stated, or where a provision is made for a question of law to be referred by a person or body other than a Court. The Court observed that both Orders are expressly stated not to apply to a referral under s 33 of the Charter of Human Rights and Responsibilities Act 2006.[192] The procedure for a referral under s 33 is governed by Order 23, which provides for the filing of an originating motion and contemplates the Court giving directions with respect to the filing of affidavits or other material verifying the facts relating to the question referred to the Court.

157 The Court of Appeal observed that the exclusion of referrals under s 33 from Orders 5 and 6 may reflect an appreciation that such referrals may raise issues of a wider nature than arise in ordinary party/party litigation so that it may not be possible to identify the relevant facts required for determination of the reference until it is in the Court.[193]

158 The Court of Appeal held that whether a reference of questions was in fact in the form of a case stated or special case would depend on the terms of the reference objectively considered.[194] As the order in that case only referred the question without stating facts, the Court concluded that it was not a case stated or a special case.[195]

159 In the present case, the orders of the President of the Tribunal set out the questions of law for determination by this Court, and the facts found by the President as relevant to the referral.[196] These are the essential elements of the case stated process as established by the authorities. I am satisfied that the present referral of the questions of law, with the facts found by the President, was a case stated within the meaning of the Appeal Costs Act.

160 The Applicants filed evidence relating to the anxiety and distress caused by the delay to the conclusion of their proceeding in the Tribunal, arising from the referral, and to the status of the Applicants as low income earners or retirees.[197] There may be some doubt as to whether I am permitted to take this evidence into account in a proceeding on referred questions of law, although potentially where the evidence does not relate to the questions of law, there may be no obstacle to taking it into account on a question relating to costs. In any event, I do not think it is necessary to take the evidence into account in deciding whether to grant an indemnity certificate. Section 19 does not identify any conditions for the grant of an indemnity certificate other than that 'a case is stated for the opinion or determination of a superior court on a question of law' and that the applicant for the certificate is not the Crown. Those criterion are made out with respect to the Applicants in this case, who are all natural persons. The exceptions relating to a corporation having paid up share capital of $200,000 or more or subrogated insurers[198] do not apply.

161 I am presently of the view that it is appropriate to issue an indemnity certificate to the Applicants in this case.

162 I propose to make orders with respect to costs as set out below. I will give directions permitting the parties to make any submission on the orders relevant to costs within seven days, and if no submission is made to the effect that these orders are inappropriate, I will make the orders after that time.

1. There be no orders as to costs as between the parties.
2. The Applicants are granted an indemnity certificate pursuant to s 19 of the Appeal Costs Act 1998 (Vic) for their own costs of the proceeding in this Court that the Appeal Costs Board considers to have been reasonably incurred.

[1] Order of Woodward J dated 25 March 2024, Remarks, [E], [U].

[2] Order of Woodward J dated 25 March 2024, Remarks, [D], [E], [U].

[3] Order of Woodward J dated 25 March 2024, Remarks, [U].

[4] Burns v Corbett (2018) 265 CLR 304, 325-326 [1]-[3] (Kiefel CJ, Bell and Keane JJ), 346 [68]-[69] (Gageler J).

[5] Order of Woodward J dated 25 March 2024, Remarks, [Q]-[T].

[7] (2018) 265 CLR 304, 325-326 [1]-[3] (Kiefel CJ, Bell and Keane JJ), 346 [68]-[69] (Gageler J).

[8] Burns v Corbett, 325-326 [64] (Kiefel CJ, Bell and Keane JJ); [120] (Gageler J).

[9] (2023) 414 ALR 1 (Krongold v Thurin).

[10] Krongold v Thurin, 12 [37] (with original footnotes included below).

[11] R v Kirby; ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254.

[12] Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1, [59] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[13] Rizeq, [60]-[61] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[14] Palmer v Ayres (in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq) [2017] HCA 5; (2017) 259 CLR 478, [26]-[27] per Kiefel CJ, Keane, Nettle and Gordon JJ.

[15] Rizeq, [63] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[16] Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group) [2020] VSCA 30; (2020) 60 VR 361.

[17] See Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191, [42] (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing).

[18] [2020] VSCA 30; (2020) 60 VR 361 (Meringnage), [98].

[21] RRT Act, s 23D; VCAT Act, ss 121-122.

[22] Meringnage, 394-395 [102] (Tate, Niall and Emerton JJA).

[23] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 269 (Deane, Dawson, Gaudron and McHugh JJ).

[24] Meringnage, 395-396 [103]-[105] (Tate, Niall and Emerton JJA).

[25] [1982] FCA 272; (1982) 65 FLR 437 (Re APRA); [1982] FCA 272; (1982) 45 ALR 153. The Applicants submitted that Waterhouse v Australian Broadcasting Corporation (Federal Court, Wilcox J, 21 October 1987) was to the same effect: Transcript 02/08/24, T11.3-.07; T23.4-.09.

[26] Applicants' Outline of Written Submissions filed 31 May 2024, [7]-[25]; Transcript 02/08/24, T6.05-17.29.

[27] Deputy Commissioner of Taxation v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219 (DCT v State Bank of NSW), 230 (the Court); Queanbeyan City Council v ACTEW Corporation Limited [2011] HCA 40; (2011) 244 CLR 530, 543 [24] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[28] DCT v State Bank of NSW, 230, 232 (the Court); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 581-582 [42]-[43] (Gleeson CJ, Gaudron and Gummow JJ).

[29] DCT v State Bank of NSW, 230-231; ACTEW, 543 [24]; Edensor Nominees, 580 [39].

[30] DCT v State Bank of NSW, 233 (The Court); SGH Limited v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51, 67-68 [16] (Gleeson CJ, Gaudron, McHugh and Hayne JJ).

[31] Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334, 337-338 (Kitto J).

[32] SGH Limited, 67-68 [16] (Gleeson CJ, Gaudron, McHugh and Hayne JJ), [127] (Callinan J); Edensor Nominees, 581 (Gleeson CJ, Gaudron and Gummow JJ).

[33] Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330, 347-348 (Stephen J), 351 (Mason J); SGH Limited, 102 [129] (Callinan J).

[35] Inglis, 337-338, where Kitto J recognised that 'The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally accepted governmental character may well help in the ascertainment of legislative intention.' (emphasis added).

[36] State Bank of NSW v Commonwealth Savings Bank o_f Australia_ [1986] HCA 62; (1986) 161 CLR 639, 651 (the Court). ASIC, with its regulatory functions, has been determined to be 'the Commonwealth': Edensor Nominees, 580-81 [39]-[40].

[38] See generally the observations of McHugh J in Edensor Nominees, [126]-[127]; and the summary of factors by Callinan J in SGH Limited, 103, [131], cited in ACTEW, 545 [30] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Some of these factors are identified and applied in the cited authorities in considering whether a statutory corporation is 'a State' for Constitutional or other purposes; that does not give rise to any material distinction for present purposes.

[39] Inglis, 339; SGH Limited, 68-70 [17]-[22].

[41] SGH Limited, 103 [131]; ACTEW, [30].

[42] Inglis, 339; State Bank of NSW v Commonwealth Savings Bank of Australia, 650.

[43] Edensor Nominees, 580 [39]-[40], referring to the former Public Service Act 1922 (Cth).

[44] Edensor Nominees, 580 [39]-[40]; State Bank of NSW v Commonwealth Savings Bank of Australia, 651.

[45] Edensor Nominees, 580 [39]-[40]; State Bank of NSW v Commonwealth Savings Bank of Australia, 651.

[46] Applicants' Outline of Written Submissions dated 31 May 2024, [18]-[26]; Transcript 02/08/24, T15.31-17.03.

[47] Transcript 02/08/24, T4.16-.20, T94.05-.11.

[48] Respondent's Submissions in Reply dated 12 July, [4]-[6].

[51] Re APRA, 440: 'Two broad questions arise, namely: A. Is the Commission included in the word 'Commonwealth' in s 183? ...'.

[52] Applicants' Outline of Written Submissions dated 31 May 2024, [25]. Transcript 02/08/24, T8.23-9.06.

[53] There was nothing in the extrinsic material to the ABC Act, including the second reading speech (which was noted by the Applicants), which referred to the Re APRA decision, as might have been anticipated if the legislation intended to adopt an aspect of that decision. Cf Thurin v Krongold [2022] VSCA 226; (2022) 407 ALR 187, [162].

[56] Applicants' Outline of Written Submissions dated 31 May 2024, [31].

[57] Respondent's Outline of Written Submissions dated 10 May 2024, [29].

[58] State Bank of NSW v Commonwealth Savings Bank of Australia, 651 (the Court).

[59] SGH Limited, [22] (Gleeson CJ, Gaudron, McHugh and Hayne JJ).

[60] Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330, 349 (Stephen J).

[61] The Australian Broadcasting Act 1942 was, by an amending Act in 1956 (the Broadcasting and Television Act 1956 (No 33)) amended including by renumbering of sections. Section 7 which had established the Australian Broadcasting Commission became s 30 in the newly amended Broadcasting and Television Act 1942.

[62] Inglis, 337, 339; State Bank of NSW v Commonwealth Savings Bank of Australia, 644, 649-650 (The Court); See also SGH Limited, 103 [131] (Callinan J) and Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 501 (Kirby J).

[72] Remuneration Tribunal Act 1973 (Cth), s 4.

[74] Edensor Nominees, 580-581 [39]-[40].

[75] SGH Limited, [131]; ACTEW, [30].

[82] For example, under the Australian Securities and Investments Commission Act (Cth) s 12 the Minister could give written directions to ASIC regarding the exercise of its functions and powers, a matter which was indicative of its status as a corporation established by a law of the Commonwealth which answers the description of 'the Commonwealth' in s 75(iii) of the Constitution. See Edensor Nominees, 580-581, [39]-[40] (Gleeson CJ, Gaudron and Gummow JJ).

[84] Limitations to which Wilcox J attributed some significance in v Waterhouse Australian Broadcasting Corporation (Federal Court, Wilcox J, 21 October 1987) at [10].

[87] DCT v State Bank of NSW, 230-231; ACTEW, 543 [24].

[89] ABC Act, s 31B and PGPA Act, s 35.

[91] SGH Limited [132], [138], [148] (Callinan J).

[95] ABC Act, ss 25(3), 29, 31(1) and (4).

[97] Criminal Code Act 1995, ss 122.1, 122.2, 122.4.

[98] Criminal Code Act 1995, s 121.1(1).

[99] National Anti-Corruption Commission Act 2022, s 117(1).

[100] National Anti-Corruption Commission Act 2022, s 117(2)(d).

[101] Applicants' Outline of Written Submissions dated 31 May 2024, [47].

[102] Respondent's Outline of Written Submissions dated 10 May 2024, [36].

[103] [2022] HCA 16; (2022) 276 CLR 216 (Citta Hobart).

[104] South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667, 675; Palmer v Ayres, 490 [26] (Kiefel, Keane, Nettle and Gordon JJ).

[105] Palmer v Ayres, 490-491, [26]-[27] (Kiefel, Keane, Nettle and Gordon JJ); See also Thurin v Krongold, [47]-[48] (the Court).

[106] Fencott v Muller (1983) 152 CLR 570, 603.

[108] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 524 [25]; See also at 555 [118]; CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339, 350-351 [26].

[109] Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1, 15 [51].

[110] See Abebe, 528 [32]; Hooper, 15 [55].

[111] Citta Hobart, 232-233 [31], 234 [35]; Thurin v Krongold, [55].

[112] Re Wakim; Ex parte McNally (1999) 198 CLR 511, 584 (Gummow and Hayne JJ). In characterising the dispute it is objective and independent of the parties' intentions or pleadings: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251, 262, [29], [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 474.

[113] Citta Hobart, [31]; [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Moorgate Tobacco Company Ltd v Phillip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457, 476-477: 'If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed on other grounds. ... [I]f the pleadings attracted federal jurisdiction by raising a s 76(ii) matter for determination, that jurisdiction was not lost by subsequent disclaimer or by the primary judge's failure to determine the matter.' (Stephen, Mason Aickin and Wison JJ).

[114] Respondent's Outline of Written Submissions dated 10 May 2024, [38], [46]-[48].

[115] Respondent's Outline of Written Submissions dated 10 May 2024, [46], [48].

[116] Noting the observation of White JA in Wilson v Chan & Naylor Paramatta Pty Ltd [2020] NSWCA 213; (2020) 103 NSWLR 140, [73], that a decision of the NSW Civil and Administrative Tribunal that it had no authority to deal with a matter in federal jurisdiction is 'anterior to the exercise of federal jurisdiction'.

[118] [1987] HCA 17; (1987) 162 CLR 574, 598, (Mason ACJ, Wilson and Dawson JJ), 609 (Deane J, observing that 'Once that federal jurisdiction in relation to service has been exercised and service has been effected however, it is State jurisdiction which is subsequently exercised pursuant to that service except, of course, to the extent that the determination of the substantive issues involves an exercise of federal jurisdiction').

[119] Applicants' Outline of Written Submissions dated 31 May 2024, [35]-[36].

[120] Outline of Written Submissions of the Attorney-General for the State of Victoria dated 21 June 2024, [16].

[121] [2024] WASCA 87 (Hanssen).

[122] Hanssen, [11] (Buss P, Mitchell JA and Hall JA).

[123] Hanssen, [57]-[58], citing Palmer v Ayres, [26] and Citta Hobart, [58].

[124] Hanssen, [59], citing Attorney-General (NSW) v Commonwealth Savings Bank of Australia [1986] HCA 22; (1986) 160 CLR 315.

[128] Transcript 02/08/24, T75.18-76.04.

[129] Transcript 02/08/24, T47.12-.16.

[130] Transcript 02/08/24, T48.08-.14.

[131] Transcript 02/08/24, T50.29-51.01

[132] Transcript 02/08/24, T101.23-.26. Although counsel for the Applicants initially identified the potential for some inconsistency of the statement in Hanssen that '[t]he Tribunal did not have jurisdiction to determine the jurisdictional matter' (at [70]) with the High Court's position in Citta Hobart that tribunals have the duty and power to decide questions of jurisdiction ([21]-[25]), and that to the extent of the inconsistency, Hanssen was plainly wrong, he ultimately accepted that the reference in Hanssen to a lack of jurisdiction to 'determine' a jurisdictional matter could be understood as a lack of jurisdiction to determine authoritatively. Transcript 02/08/24, T29.21-31.07.

[133] Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24, 34-25 [25] (the Court).

[137] Outline of Written Submissions of the Attorney-General for the State of Victoria dated 21 June 2024, [12]; Submission of counsel for the Applicants at Transcript 02/08/24, T7.23-.30, T20.06-.09; Submission of senior counsel for the ABC at Transcript 02/08/24, T68.07-.26.

[138] [2022] VSCA 226; (2022) 407 ALR 187.

[139] Transcript 02/08/24, T96.18-97.01.

[140] Transcript 02/08/24, T95.21-98.19.

[141] Gaynor v Attorney-General (NSW) [2020] NSWCA 48; (2020) 102 NSWLR 123, 155-156 [130]-[132]; Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213; (2020) 103 NSWLR 140, 144 [14].

[142] R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 618.

[143] (1970) 15 FLR 426, 428 (Blackburn J).

[144] Transcript 02/08/24, T66.18-.23.

[145] Respondent's Submissions in Reply, 12 July 2024, [10]-[13].

[146] Transcript 02/08/24, T51.07-.20.

[147] Outline of Written Submissions of the Attorney-General for the State of Victoria dated 21 June 2024, [3]; [14].

[148] See the Outline of Written Submissions of the Attorney-General for the State of Victoria dated 21 June 2024, [3](a), noting that in reaching a decision as to jurisdiction, the Tribunal does not exercise federal judicial power, but rather 'either non-judicial or State judicial power, depending on the nature of the power to which it is incidental'. Cf the Applicants' Outline of Written Submissions dated 31 May 2024, which submitted that the Tribunal had the power to determine its jurisdiction as 'deciding jurisdiction itself is not an exercise of judicial power', citing Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316, [31]. The ABC submitted that the Tribunal's decision as to jurisdiction involves forming an opinion, which is non-binding, and that in the case where the federal issue goes to the identity of the parties, rather than the subject matter of the claims or defence, the determination of whether the Tribunal has jurisdiction is also a step preliminary to the adjudication of the dispute Respondent's Outline of Written Submissions dated 10 May 2024, [43], [45]-[46]. The ABC also rejected the NSW Civil and Administrative Appeals Panel's reasoning in Lux Cuttings at [36]-[37] where it accepted that a jurisdictional objection based on one party being the Commonwealth was not a defence, but engages the Tribunal's ability to determine its own jurisdiction which neither involves interpreting the Constitution nor the exercise of judicial power. The ABC contended that this issue does involve interpretation of the Constitution, and that the jurisdictional objection would also constitute a defence; The ABC also submitted that the Tribunal would be exercising judicial power when deciding jurisdiction in the present case, as the power to determine a body's jurisdiction takes its nature from the power that the body would exercise if it had jurisdiction: Respondent's Submissions in Reply dated 12 July 2024, [10]-[13].

[149] Transcript 02/08/24, T47.18-.28 (ABC), T78.21-.25 (Attorney-General), T100.10-.16 (Applicants).

[150] [1976] AATA 1; (1976) 12 ALR 239.

[156] Burton v Honan [1952] HCA 30; (1952) 86 CLR 169, 177.

[160] Citing R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 618.

[161] Citta Hobart, 230-231 [25]-[26].

[163] [2020] NSWCA 213; (2020) 103 NSWLR 140, 156 [72]-[74] (Wilson v Chan).

[169] Citing Citta Hobart, 230 [24] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

[171] [2020] NSWCA 48; (2020) 102 NSWLR 123.

[173] Thurin v Krongold, [5(c)], [149]-[150].

[174] Whether a Tribunal's conclusion as to its jurisdiction can be challenged in every case by way of appeal pursuant to s 148 of the VCAT Act, or may in some cases involve judicial review, may again depend on the characterisation of the power that the Tribunal was exercising in reaching the conclusion. It is unnecessary to enter on that question here.

[177] Citta Hobart, 229-230 [21] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), [63] (Edelman J); Re Cilli's Objection, 428 (Blackburn J).

[178] Citta Hobart, [24]; Re Adams and the Tax Agents' Board [1976] AATA 1; (1976) 12 ALR 239, 245 (Brennan J); Old UGC Inc v Industrial Relations Commission of New South Wales [2006] HCA 24; (2006) 225 CLR 274, 290 [51] (Kirby J); Gaynor, 155-156 [131]-[132] (Leeming JA).

[179] Respondent's Outline of Written Submissions dated 10 May 2024, [43].

[180] Which is now determined by binding authority in Victoria by the Court of Appeal decision in Thurin v Krongold, [116], [121] (McLeish, Niall and Walker JJA) and in Western Australia by Hanssen, [7] (Buss P, Mitchell and Hall JJA).

[181] The Attorney-General for Victoria referred as an example to Blunden v Commonwealth (2003) 218 CLR 330, 336 [9].

[182] Transcript 02/08/24, T4.22-5.06.

[183] Applicants' Outline of Written Submissions dated 31 May 2024, [54]-[61], [64]; Transcript 02/08/24, T11.08-13.10.

[184] Applicants' Submission in Support of Draft Proposed Orders dated 18 April 2024, for directions hearing of 19 April 2024. The Applicants sought orders setting aside the referral order; alternatively for joining the President of the Tribunal to these proceedings and having a hearing to determine the validity of the questions referred by his Honour. I declined to make those orders.

[185] Transcript 02/08/24, T73.16-.22.

[186] Respondent's Submissions in Reply dated 12 July 2024, [14].

[187] [2004] VSC 43, [8].

[188] [1990] VicRp 68; [1990] VR 780, 782-783.

[189] (2010) 30 VR 211, 215-216 [18]-[19].

[190] R v Assange [1997] 2 VR 247.

[191] [1997] 2 VR 247, 253.

[192] (2010) 30 VR 211, 216 [22]-[24], referring to Order 5.01(2) and 6.01(2).

[193] (2010) 30 VR 211, 217 [27]-[29].

[194] (2010) 30 VR 211, 217 [28].

[195] (2010) 30 VR 211, 217-218 [29], [31].

[196] Order of Woodward J dated 25 March 2024, Remarks, [U].

[197] Affidavit of Michelle Nguyen sworn 18 April 2024, [31]-[32].

[198] Appeal Costs Act 1998, s 35A.