Legislation: ACT Civil and Administrative Tribunal Act 2008, s 22

Australian Capital Territory (Self-Government) Act 1988 (Cth),

s 27

Civil Law (Wrongs) Act 2002

Commonwealth of Australia Constitution Act, ss 75, 76 and 122

Cases: Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1

Brown v Commonwealth of Australia [2013] ACAT 56

Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104

Croker v Commonwealth of Australia and Anor [2005] NSWSC 994

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Forge v Australian Securities and Investments Commission [2006] HCA 44

Jonathan Anthony Crowley v Commonwealth of Australia, Australian Capital Territory and Glen Pitkethly [2011] ACTSC 89

Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51

North Australia Aboriginal Legal Aid Service Inc v Bradley and Another [2004] HCA 31; [2004] 218 CLR 146

Re The Governor, Goulburn Correctional Centre and another; Ex parte Eastman [1999] HCA 44

Residential Tenancies Tribunal of Wales v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410

Trust Company of Australia Ltd v Skiwing Pty (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's) [2006] NSWCA 185; (2006) 66 NSWLR 77

Date of Reasons for Decision: 25 September 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL XD 13/1115

1. Ms Stephanie Bloxham (the applicant) made an application to the Tribunal on 3 July 2013 seeking an order for the payment of $10,000 damages as compensation for loss of her household property as a result of a theft occasioned by the negligence of the Australian Federal Police. On 4 July 2010 the applicant was arrested at her home. She alleges that as she was being removed from her home she asked members of the Australian Federal Police to secure her house but this was not done. While she was in police custody person or persons unknown burgled her house and stole property to the value of $35,000.
2. The Commonwealth of Australia filed a response to the application setting out the following grounds:
   1. that the Commonwealth of Australia is not subject to the jurisdiction of the ACT Civil and Administrative Tribunal;
   2. that the respondent denies that the Australian Federal Police owed a duty of care to the applicant;
   3. that the respondent denies that the Australian Federal Police breached any duty owed to the applicant; and
   4. that the respondent denies that the Australian Federal Police failed to secure the premises of the applicant on for July 2010.
3. A conference was held on 16 September 2013; a settlement was not achieved. The matter was adjourned to 5 December 2013 and directions were made.

1. The matter was heard on 5 December 2013. Ms Bloxham appeared in person and was unrepresented. Mr McNair, solicitor from Norton Rose Fulbright, appeared for the respondent. Mr McNair made the following submissions.
   1. The tribunal does not have jurisdiction to hear this claim.
   2. A State or Territory body that is not a "court" cannot exercise judicial power in any matter falling within the scope of sections 75 and 76 of the Constitution which includes matters to which the Commonwealth is a party. The Commonwealth has regularly resisted proceedings against it in State tribunals on this basis.
   3. ACAT is not a "court" within the meaning of Chapter III of the Constitution, however, at least in its civil disputes jurisdiction, ACAT exercises judicial power. If ACAT heard this claim it would be purporting to exercise federal judicial power other than in accordance with sections 75 and 76 of the Constitution.
   4. This position has not been affected by the recent decision in Brown v Commonwealth[1], which in the Commonwealth's view, should not be followed_._ In the alternative, even if the decision in Brown is accepted, it may be distinguished on the facts in the present proceeding. The peculiarities of the law applying in the Jervis Bay Territory were material to the finding in that case. Ultimately, ACAT cannot validly perform its functions in circumstances where the Commonwealth is a party. Any orders made by the Tribunal will not bind the respondent.
2. The Tribunal accepted the submission by the Commonwealth that the decision in Brown v Commonwealth turned on its own particular facts and was not authority for the proposition that the Commonwealth was as a general principle subject to the jurisdiction of ACAT.
3. The Tribunal determined that the preliminary issue of whether ACAT has jurisdiction over the Commonwealth in this matter should be decided before evidence and submissions on the facts and law relating to negligence would be required. The Tribunal, having heard some evidence from the applicant, requested submissions on the issue of whether the Commonwealth or the Australian Capital Territory was the appropriate respondent to an application for damages based on the negligence of an Australian Federal Police Officer undertaking Australian Capital Territory policing duties. The Tribunal also requested further submissions in relation to the general question of whether the Commonwealth was subject to the jurisdiction of ACAT in relation to civil applications.
4. The Tribunal adjourned the matter to 13 March 2014 and made the following orders:

1. Respondent is to provide to the Tribunal and to the applicant written submissions in relation to the jurisdiction of ACAT on or before 30 January 2014.
2. Applicant is to provide to the Tribunal and to the respondent a written response to the respondent's submissions on jurisdiction by 28 February 2014.

1. On 19 February 2014, the Commonwealth filed with the Tribunal a copy of the Attorney-General's approval for the Commonwealth to object to the Tribunal's jurisdiction to hear this matter. This approval is required under the Model Litigant Rules.
2. The Commonwealth made written submissions which they summarise as follows:
   1. [T]he ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) does not bind the Crown in right of the Commonwealth.
   2. [T]here is a constitutional implication that only a court can exercise judicial power in matters in which the Commonwealth is a party, and, the ACAT is not a court.
   3. [I]n the event that ACAT would somehow have jurisdiction, the interplay between the doctrine of Crown immunity, section 75 (iii) of the Constitution and section 56 of the Judiciary Act 1903 has the effect that ACAT can only deal with the application is the Commonwealth submits to the exercise of ACAT's jurisdiction.[2]
3. Even if contrary to the arguments outlined above it was accepted that ACAT had jurisdiction to deal with a civil dispute application where orders are sought against the Commonwealth, there is no law that takes away the Commonwealth's immunity from suit. That is, ACAT could exercise any jurisdiction only if the Commonwealth submitted to that jurisdiction in the context of the specific proceedings thus surrendering its immunity. The Commonwealth does not submit to the jurisdiction of ACAT.[3]
4. The Commonwealth's submissions did not address the question of whether the Commonwealth or the Australian Capital Territory was the correct respondent.
5. The matter was heard again on 14 March 2014. Mr Chris Behrens, from the Australian Government Solicitor, appeared for the Commonwealth. Miss Bloxham was not present. The applicant provided a medical certificate explaining her absence. The applicant provided no submissions in relation to ACAT's jurisdiction. The Tribunal heard the submissions about jurisdiction from the Commonwealth.
6. The Tribunal, relying on its own investigations, determined that the Commonwealth was the correct respondent. The Tribunal's own investigations established that an Australian Federal Police officer acting in the ACT under the agreement for ACT Policing is an officer of the Commonwealth. See, for instance, Jonathan Anthony Crowley v Commonwealth of Australia, Australian Capital Territory and Glen Pitkethly. [4]
7. ACT policing services are provided by the Australian Federal Police pursuant to an intergovernmental agreement covering the period 2011 to 2016. Clause 11 of that agreement recognises that ACT Policing is a Commonwealth entity.The Australian Federal Police Act 1979 (Cth) [AFP Act] provides at section 64B (1) that the Commonwealth is liable in respect of a tort committed by a member of the Australian Federal Police.
8. The Tribunal also determined that the activity of providing policing services was exclusively a government function and that the Commonwealth was exercising exclusive prerogative power. Therefore, the principal arguments relating to whether or not the Commonwealth is bound by State or Territory law when it engages in day-to-day commercial activities are not applicable. See Residential Tenancies Tribunal of Wales v Henderson; Ex parte Defence Housing Authority[5]; Bropho v Western Australia[6].
9. The Tribunal raised several issues arising from the written submissions prepared by Mr Lloyd SC on behalf the Commonwealth, and requested further submissions. The Tribunal requested further submissions on the following issues:
   1. The AFP Act provides at section 64B (1) that the Commonwealth is liable in respect of a tort committed by a member of the Australian Federal Police. The provision refers to "proceedings in tort" and it is not expressed to be confined to a particular court or tribunal. Taking into account the Australian Capital Territory government's express legislative intention that all tort matters of less than $10,000 were to be heard in ACAT and that such claims are no longer available in the Magistrates Court, was there within section 64B of the AFP Act an implicit waiver of Commonwealth immunity?
   2. Is ACAT a court? The issue of what is a court is relevant; the Tribunal noted case law in which the Queensland Civil and Administrative Tribunal had been described as 'court'. In Re The Governor, Goulburn Correctional Centre and another; Ex parte Eastman,[7] the status of courts created pursuant to section 122 of the Constitution as recipients of the judicial power of the Commonwealth was discussed. The tribunal sought submissions on whether those principles extended to ACAT.
   3. ACAT is not a State tribunal and therefore those cases which deal with the issue of whether a state tribunal can exercise Federal jurisdiction may be distinguishable. The ACT is self-governing as a result of Commonwealth legislation enacted pursuant to section 122 of the Constitution. ACAT sought submissions on whether there was a devolved power in ACT courts and tribunals as a result of being created by delegated Commonwealth legislation.

1. The matter was heard again on 8 May 2014. The applicant was not present. Mr Behrens, Australian Government Solicitor, appeared in person and Mr Lenehan of Counsel appeared by phone for the applicant. The Commonwealth's submissions are summarised below:

1. Section 27 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) provides that except as provided by the regulations, an enactment does not bind the Crown in right of the Commonwealth. The ACAT Act is an enactment of the Legislative Assembly for the ACT. The Regulations do not specify the ACAT Act as an act intended to bind the Crown in the right of Commonwealth, therefore, the ACAT Act does not bind the Crown in right of the Commonwealth. Although ACAT has jurisdiction to deal with the subject matter of the proceedings, that is, an action in negligence, it does not have jurisdiction to entertain proceedings where orders are sought against the Commonwealth of Australia. See Croker v The Commonwealth and Other.[8]
2. It follows from this analysis that the Civil Law (Wrongs) Act 2002 does not bind the Commonwealth, by virtue of section 27 of the Self-Government Act.

The Constitution prohibits ACAT exercising judicial power over the Commonwealth.

1. The Constitution prohibits ACAT from exercising judicial power in matters specified in sections 75 and 76 including matters in which the Commonwealth is a party. There is, in Chapter III of the Constitution, an implied constraint that requires that jurisdiction in matters involving the Commonwealth as a party can only be conferred on courts, whether they be Federal, State or Territory. It follows from the existence of this implied constraint that if ACAT is not a court and ACAT would be exercising judicial power when determining a civil dispute, ACAT will not have jurisdiction where orders are sought against the Commonwealth.

1. In Forge v Australian Securities and Investments Commission,[9] the High Court stated that for a body to be described as a court it must satisfy minimum requirements of independence and impartiality, and needs to be constituted predominantly by judges with appropriate levels of security of tenure and remuneration. The characterisation of a body as a court involves 'a matter of substance, not form': Trust Company of Australia Ltd v Skiwing Pty (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's).[10] There are a number of elements which indicate that ACAT is not a court: it is not called a court, the members of the ACAT are appointed for fixed renewable terms, non-presidential members do not have to have legal qualifications, the presidential members are not judges, some of the matters before ACAT do not involve the exercise of judicial power, the power to appoint members includes the power to suspend members and end appointments and, ACAT is not established as a court of record.

1. The trial of actions for civil wrongs is an exercise of judicial power. ACAT has the same jurisdiction and power as the ACT Magistrates Court when dealing with civil dispute applications. Orders made in civil disputes will involve the application of pre-existing legal principles and standards. ACAT's orders are enforceable.
2. Given that the present proceedings involve the exercise of judicial power, and that they are against the Commonwealth, and thus an exercise of Federal jurisdiction, they can be heard and determined only by a court invested with Federal jurisdiction. ACAT is not a court and is not vested with any Federal judicial power. It follows that ACAT has no jurisdiction in the present matter.
3. The AFP Act provides that the Commonwealth is liable in respect of a tort committed by a member of the Australian Federal Police in the performance of his or her duties. In the absence of a clear intention within that Act to bind the Crown in the right of the Commonwealth, it cannot be understood as intending to 'pick up and apply' the Civil Law (Wrongs) Act 2002 to an action in negligence brought against Australian Federal Police in ACAT. This is a matter of construction of the relevant legislation, and, unless the legislation evinces a clear intention to bind the Commonwealth, it will not do so: Croker v The Commonwealth and Other.[11]
4. The Commonwealth also made submissions in relation to the conferral of power to determine matters in Commonwealth jurisdiction upon the Australian Capital Territory Supreme Court and the issue of whether, as a result of such a conferral of power, it could be argued that ACAT had by a process of devolution also been conferred such power. It was submitted that the Commonwealth cannot confer jurisdiction on ACAT because ACAT could not be said to be a court of the Territory . Any conferral of federal jurisdiction is confined to a court of the Territory.
5. The Commonwealth made submissions in relation to the decisions in Re The Governor, Goulburn Correctional Centre and another; Ex parte Eastman[12] and North Australia Aboriginal Legal Aid Service Inc v Bradley and Another.[13]. Broadly speaking, these decisions confirm that courts created pursuant to the Territory power of the Constitution may be invested with the judicial power of the Commonwealth. Those courts must exhibit the requisite institutional integrity; that is, must meet the minimum characteristics of an independent and impartial court as set out in cases such as Kable v Director of Public Prosecutions[14] and Ebner v Official Trustee in Bankruptcy.[15]
6. The Commonwealth made submissions that ACAT is not a court capable of being vested with the judicial power of the Commonwealth. Only the Commonwealth Parliament can confer Federal jurisdiction on a court of a Territory and the Commonwealth's submission is that ACAT is not a court, and, even if it was the Commonwealth has not conferred jurisdiction upon it.
7. In Trust Company of Australia Ltd Pty (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's)[16], Chief Justice Spigelman set out various matters that were weighed in favour of the Administrative Decisions Tribunal in New South Wales as being regarded as a court of the State and the matters that weigh against it being a court of the State. The Commonwealth submitted that these matters should be considered and applied also to ACAT:
   1. ACAT is not called a court. It is established as a tribunal by section 88 of the ACAT Act
   2. ACAT members are appointed for renewable terms of seven years in the case of presidential members and five years in the case of nonpresidential members.
   3. There is no positive requirement that ACAT members have legal qualifications.
   4. A member may be removed by the government for incapacity, incompetence or misbehaviour.
   5. A court must be and appear to be an independent and impartial Tribunal. In Commonwealth v Anti-Discrimination Tribunal (Tasmania) and Another.[17] Her Honour Justice Kenny discussed the nature of the Anti-discrimination Tribunal and stated "the absence of any provision as to tenure compromises the institutional independence of the Tribunal" [at 236].
8. The Commonwealth's submissions were summed up thus: the judicial power that has been conferred on the Tribunal by the Territory legislature carries with it the consequence that the Tribunal cannot be said to be a court of the Territory effectively and, for that reason, cannot be vested with Federal judicial power. The proposition that follows naturally from those two matters is that it can not entertain the claims as against the Commonwealth because that would be then a matter in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party within the meaning of section 75(iii) of the Constitution and, so, necessarily within Federal jurisdiction.
9. The trial of actions for civil wrongs has been said to fall within that special core of judicial power. The ACT Civil and Administrative Tribunal Act 2008 specifies that ACAT has the same jurisdiction and powers as the ACT Magistrates Court,[18] and the enforceability of ACAT's orders, confers upon them the status of binding or authoritative declarations of right. What would be involved if the Tribunal embarked on an exercise of jurisdiction would be judicial power. There is nothing wrong with that if the Commonwealth is not a party, but the Commonwealth being a party means that this is a federal matter and, therefore, federal jurisdiction would be attracted but federal jurisdiction cannot be exercised by the Tribunal.

1. The Tribunal having considered the submissions made by the Commonwealth has determined that ACAT does not have jurisdiction to hear this matter. A trial of a matter, pursuant to the Civil Law (Wrongs) Act in an action for negligence involves the exercise of judicial power: the Tribunal would be making a binding decision based upon established legal principles and that decision would determine rights and obligations of the parties. Wherever the Commonwealth is a party to a matter, the exercise of judicial power is an exercise of federal jurisdiction. Only a Court properly constituted according to Chapter III of the Constitution may exercise the judicial power of the Commonwealth. ACAT is not such a court.

[1] [2013] ACAT 56

[2] Outline of Submissions of the Respondent, at [9]

[3] Outline of Submissions of the Respondent, at [29]

[4] [2011] ACTSC 89

[6] [1990] HCA 24; (1990) 171 CLR 1

[8] [2005] NSWSC 994

[9] [2006] HCA 44

[10] [2006] NSWCA 185; (2006) 66 NSWLR 77 at 87]

[11] [2005] NSWSC 994

[13] [2004] HCA 31; [2004] 218 CLR 146

[14] [1996] HCA 24; (1996) 189 CLR 51

[15] [2000] HCA 63; (2000) 205 CLR 337

[16] [2006] NSWCA 185; (2006) 66 NSWLR 77 at 83-84

[17] [2008] FCAFC 104

[18] Section 22