Burns v Corbett; Gaynor v Burns - [2017] NSWCA 3 - NSWCA 2016 case summary — Zoe

NSWNSWCA

Burns v Corbett; Gaynor v Burns

[2017] NSWCA 3

Court of Appeal (NSW)|2016-11-30|Before: Bathurst CJ, Beazley P, Leeming JA

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2016-11-30

Before

Bathurst CJ, Beazley P, Leeming JA

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Interpretation Act 1987 (NSW), s 31 Judiciary Act 1903 (Cth), ss 35, 38, 39, 39A, 55B, 79, 80 Acts Interpretation Act 1901 (Cth), s 15C Cases Cited: Ammann v Wegener (1972) 129 CLR 415 APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) [2006] NSWCA 349; 236 ALR 385 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 Bell Group NV (in liq) v Western Australia [2016] HCA 21; 90 ALJR 655 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47 CGU Insurance Ltd v Blakely [2016] HCA 2; 90 ALJR 272 Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85; [2008] FCAFC 104 Commonwealth v Bank of New South Wales (1949) 79 CLR 497 Commonwealth v Mewett (1997) 191 CLR 471 Commonwealth v Queensland (1975) 134 CLR 298 Croft v Dunphy [1933] AC 156 Dalton v NSW Crime Commission (2006) 227 CLR 490; [2006] HCA 17 Dickson v The Queen (2010) 241 CLR 491; [2010] HCA 30 Felton v Mulligan (1971) 124 CLR 367 Fencott v Muller (1983) 152 CLR 570 Ffrost v Stevenson (1937) 58 CLR 528 Hannah v Dalgarno (1903) 1 CLR 1 Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Lorenzo v Carey (1921) 29 CLR 243 Macleod v Attorney-General (NSW) [1891] AC 455 Minister of State for the Army v Parbury Henty & Company Pty Ltd (1945) 70 CLR 459 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 Nagrint v The Ship "Regis" (1939) 61 CLR 688 Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 89 ALJR 975 Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410 Re Wakim; ex parte McNally (1999) 198 CLR 510; [1999] HCA 27 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Sportsbet Pty Ltd v State of New South Wales (2012) 249 CLR 298; [2012] HCA 13 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5 Telstra v Worthing (1997) 197 CLR 61 Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Webb v Outrim [1907] AC 81 Wilson v Minister for Lands (1899) 20 NSWLR 104 Wilson v Minister for Lands (1901) 1 SR (NSW) 177 Texts Cited: K Bailey, "The Federal Jurisdiction of State courts" (1939-1941) 2 Res Judicatae 109 M Leeming, Authority to Decide (2012, Federation Press) G Lindell, Cowen and Zines's Federal Jurisdiction in Australia (4th ed 2016, Federation Press) J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901, Sydney Legal Books) W Wilson, "Formal fallacy", in R Audi (ed), The Cambridge Dictionary of Philosophy (2nd ed 1995, Cambridge University Press) Category: Principal judgment Parties: 2016/224875 (Burns v Corbett)

[6]

HEADNOTE [This headnote is not to be read as part of the judgment] In 2013 and 2014, Mr Garry Burns made separate complaints to the Anti‑Discrimination Board of NSW about statements made by Ms Therese Corbett and Mr Bernard Gaynor which he claimed were public acts which vilified homosexuals, contrary to s 49ZT of the Anti-Discrimination Act. Both complaints were referred to NCAT. At all material times Mr Burns was a resident of New South Wales, Ms Corbett was a resident of Victoria and Mr Gaynor was a resident of Queensland. Although the parties to these two disputes raised numerous constitutional and non‑constitutional arguments, submissions were heard only on the threshold constitutional issue: can the NSW Civil and Administrative Tribunal (NCAT) hear and determine a dispute arising under the Anti-Discrimination Act 1977 (NSW) between a resident of New South Wales and a resident of another State? Mr Burns' disputes in NCAT were matters falling within the diversity jurisdiction conferred on the High Court by s 75(iv) of the Constitution. Section 77(iii), with respect to any of the matters mentioned in s 75 and 76, grants the federal Parliament legislative power to invest any court of a State with federal jurisdiction. Section 39(2) of the Judiciary Act 1903 (Cth) conditionally invests a State court with federal jurisdiction to hear and determine matters falling within one of the classes identified in ss 75 and 76. It was common ground that NCAT: 1. was not a "court of the State" for the purposes of Chapter III of the Constitution, and 2. was exercising State judicial power in resolving Mr Burns' complaints under the Anti-Discrimination Act. Jurisdiction of NCAT Held, per curiam, deciding that NCAT does not have jurisdiction to resolve Mr Burns' complaints:

The effect of s 39 of the Judiciary Act is, by operation of s 109 of the Constitution, to deny any State jurisdiction in State courts when determining any of the matters identified in ss 75 or 76 of the Constitution: at [1]. [2], [27], [55]. Felton v Mulligan (1971) 124 CLR 367, Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457, PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 89 ALJR 975, followed.
Neither the text nor structure of the Constitution implies that a State tribunal cannot determine matters falling within ss 75 and 76. 1. The text of Ch III does not itself mandate a uniform national system within the classes of matters falling within federal jurisdiction. Whether or not there is such uniformity depends on the extent to which the legislative power in s 77 is exercised: [1], [2], [58]-[59], [63]-[64]. 2. Further, although it is settled law that the structure of Chapter III impliedly prevents the conferral of federal judicial power upon bodies other than courts, and the conferral of State judicial power upon federal courts, neither of those undoubted implications assists in sustaining the implication upon the conferral of State judicial power upon State tribunals: at [1], [2], [65].
A State tribunal which is not a "court of a State" is unable to exercise judicial power to determine matters between residents of two States because the State law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act of all such jurisdiction in State courts, and therefore rendered inoperative by virtue of s 109 of the Constitution: at [1], [2], [66], [75], [78], [95]. Felton v Mulligan (1971) 124 CLR 367; Commonwealth v Queensland (1975) 134 CLR 298; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) [2006] NSWCA 349; 236 ALR 385; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4; Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85; PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 89 ALJR 975, Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253, considered.

[7]

Judgment

BATHURST CJ: I agree with the orders proposed by Leeming JA and with his Honour's reasons.
BEAZLEY P: I have had the advantage of reading in draft the reasons of Leeming JA. I agree with his Honour's reasons and proposed orders.
LEEMING JA: Although the parties to these two disputes have raised numerous constitutional and non-constitutional arguments, the threshold issue is simply stated: can the NSW Civil and Administrative Tribunal (NCAT) hear and determine a dispute arising under the Anti-Discrimination Act 1977 (NSW) between a resident of New South Wales and a resident of another State?
The Court heard submissions on that question alone - principally, submissions advanced on behalf of the Commonwealth and New South Wales Attorneys-General who intervened in both matters - and reserved judgment. On the view I take on that question, all other issues go away. For that reason, I shall omit reference to much of the factual and procedural background, which is regrettably complex. It suffices to say that in 2013 and 2014, Mr Garry Burns made separate complaints to the Anti-Discrimination Board of NSW about statements made by Ms Therese Corbett and Mr Bernard Gaynor which he claimed were public acts which vilified homosexuals, contrary to s 49ZT of the Anti-Discrimination Act. Both complaints were referred to NCAT.
It is agreed that at all material times Mr Burns has been a resident of New South Wales, Ms Corbett has been a resident of Victoria and Mr Gaynor has been a resident of Queensland.
In relation to Ms Corbett, the (former) Administrative Decisions Tribunal found that she had breached the Act and ordered her to make a public and private apology: Burns v Corbett [2013] NSWADT 227. Her appeal to (the then newly established) NCAT was dismissed: Corbett v Burns [2014] NSWCATAP 42. The Appeal Panel's orders were entered in the Supreme Court pursuant to s 114 of the Anti-Discrimination Act. Mr Burns thereafter brought separate proceedings in the Supreme Court charging Ms Corbett with contempt for failing to make either apology. Ms Corbett maintains, as part of her defence to that charge, that neither the Administrative Decisions Tribunal nor the Appeal Panel of NCAT had jurisdiction over her, because, inter alia, she is a resident of Victoria. On the basis that the issue was important and might be dispositive, it was removed to this Court: Burns v Corbett (No 2) [2016] NSWSC 612. (I will deal with the specific questions identified for separate determination at the conclusion of these reasons.)
There has been no hearing on the merits of Mr Burns' complaint against Mr Gaynor. Mr Gaynor ultimately succeeded in having the proceedings in NCAT dismissed on the basis that there had been no "public act" in New South Wales: Burns v Gaynor [2015] NSWCATAD 211. Mr Burns has filed an appeal to the Appeal Panel, but that appeal has not been heard. A series of earlier interlocutory decisions resulted in a costs order against Mr Gaynor, payable within 14 days of agreement or assessment, from which Mr Gaynor obtained a grant of leave to appeal: Gaynor v Burns [2016] NSWCA 44. That grant of leave did not include the constitutional issues which Mr Gaynor seeks to raise by summons filed in this Court. By that summons, and by a proposed amendment to the notice of appeal, Mr Gaynor seeks inter alia a declaration that NCAT has no jurisdiction to determine matters pertaining to citizens resident in a State other than New South Wales. He also seeks an order in the nature of prohibition preventing steps from being taken in NCAT or to enforce its orders. (Again, I will deal with the detail of the orders sought at the conclusion of these reasons.) One of the bases on which Mr Gaynor relies is that he is a resident of Queensland.
There is thus no dispute that a New South Wales resident has commenced proceedings under a New South Wales statute against a resident of another State which have been referred to NCAT. In the case of Mr Gaynor, interlocutory orders have been made which are the subject of challenge in this Court, while the substantive proceedings are still pending within NCAT. In the case of Ms Corbett, orders have been made by NCAT, registered in this Court, and are in the process of being enforced.

[9]

Subject matter and source

The term "federal jurisdiction" is used in two quite different ways in connection with Chapter III of the Constitution. It may describe the subject matter of the justiciable controversy, being one which answers one of the nine descriptions in ss 75 and 76 of the Constitution. It may alternatively describe the source of the authority to decide a controversy.
It will be seen that s 77 combines both concepts. The scope of the legislative power conferred by s 77 is delimited by reference to the subject matters described in ss 75 and 76 of the Constitution. But if that legislative power is exercised so as to confer or invest federal authority to decide those subject matters in a federal or state court, then the source of that court's authority is federal.
These days, not much turns on the distinction between the subject matter and the source of federal jurisdiction when one is dealing with federal courts. It is well established that the original jurisdiction of federal courts extends only to the nine classes of matters identified in ss 75 and 76, and that in all cases the federal court will be exercising the judicial power of the Commonwealth: Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27. It was not always thus. When the Constitution was enacted, State courts and indeed the High Court also exercised jurisdiction whose source was imperial legislation. The most familiar example was the imperial admiralty jurisdiction exercised by State Supreme courts (in the case of New South Wales and Victoria, first as Vice-Admiralty courts, later as Colonial Courts of Admiralty). Dixon J was well alive to the complexities in this area when he determined in Nagrint v The Ship "Regis" (1939) 61 CLR 688 that the High Court was a Colonial Court of Admiralty given jurisdiction by the Colonial Courts of Admiralty Act 1890 (Imp). I mention this to illustrate that even in the simplest case of federal courts, it was not always correct to say that their original jurisdiction was exclusively sourced in federal law.
The source of the jurisdiction exercised by State courts, and especially, the Supreme Courts, was and is more complex than is the case for federal courts. After Federation, State courts could and did determine disputes exercising authority sourced in federal laws, in the State's constitution and laws, and in imperial laws (for example, admiralty jurisdiction until 1989). Further, pursuant to the various State Jurisdiction of Courts (Cross-vesting) Acts 1987, they could also exercise authority sourced in the laws of another State.
Some of this complexity is recognised in s 77, in that s 77(ii) refers both to jurisdiction which "belongs to" and which "is invested in" the courts of the States. The latter is (or, at least, includes) a reference to the investment of federal jurisdiction by a law enacted pursuant to s 77(iii). Isaacs J distinguished State jurisdiction and federal jurisdiction in Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142, saying that the former is "the authority which State Courts possess to adjudicate under the State Constitution and laws; federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws". The same distinction was applied in MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 at [23] and CGU Insurance Ltd v Blakely [2016] HCA 2; 90 ALJR 272 at [24].
The foregoing reflects the fact that the essential distinction between jurisdiction which "belongs to" a State court and federal jurisdiction "invested" in a State court turns on the source of the State court's authority to decide. In the former case, the source of a State court's authority to decide is the State constitution and laws. In the latter case, the source of a State court's authority to decide is a federal law enacted pursuant to s 77(iii). As Windeyer J said in Felton v Mulligan (1971) 124 CLR 367 at 393, in a passage approved in Fencott v Muller (1983) 152 CLR 570 at 606, "[t]he existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication." The distinction was explained by Professor Bailey in "The Federal Jurisdiction of State Courts" (1939-1941) 2 Res Judicatae 109 at 111: "Thus, s 77(ii) draws a distinction between the jurisdiction which 'belongs to' State courts and that which is 'invested in' them. The former is their 'State' jurisdiction, even though it exists in respect of some of the matters mentioned in ss. 75 and 76. It belongs to them by virtue of State law, without any necessity for Commonwealth action. The latter, on the other hand, is the 'federal' jurisdiction of State courts. They could not exercise any of it at all except as the Parliament invested them with it."
It will be seen below that Mr Burns' disputes in NCAT with Ms Corbett and Mr Gaynor answer the description of matters "between residents of different States" within the meaning of s 75(iv). The subject matters of those disputes are matters in federal jurisdiction. That of itself says nothing as to the source of any authority to decide those disputes which NCAT might have. It is necessary to bear steadily in mind, when reading the authorities in this area, that "federal jurisdiction" is used in the two different senses described above.

[10]

The exercise of legislative power conferred by s 77

The legislative power conferred by s 77 has been used extensively, and from almost the earliest days of the federation. What follows is not complete (notably, it omits reference to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)), but is sufficient to analyse the issues presented in this litigation.
Section 38 of the Judiciary Act 1903 (Cth) defines the jurisdiction of the High Court in respect of a small class of matters (including, for example, suits between States) to be exclusive. That is an exercise of the power conferred by s 77(ii) and necessarily (subject to exceptions which may for present purposes be passed over) excludes jurisdiction in such matters in other Australian courts.
Section 39 of the Judiciary Act is subject to s 38. In its current form, s 39 provides: "(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section. (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise. Special leave to appeal from decisions of State Courts though State law prohibits appeal (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge."
Although when originally enacted, in 1903, there were additional qualifications to the investment of jurisdiction effected by s 39(2), the section bears essentially the same structure 113 years afterwards. Putting to one side the matters mentioned in s 38, the effect is to take away existing jurisdiction of State courts in respect of the classes of matters identified in ss 75 and 76 and to invest State courts conditionally with federal jurisdiction in all such matters.
There is probably no law in the Australian legal system whose effect is more profound than, and which is so poorly understood as, s 39 of the Judiciary Act. When a State court has before it a matter falling within one of the classes identified in ss 75 and 76, then that State court is exercising the judicial power of the Commonwealth, invested in it by reason of a law enacted pursuant to s 77(iii) of the Constitution. Commonly, that law will be s 39(2) of the Judiciary Act. However, there are many federal laws which in more specific cases invest State courts with federal jurisdiction, especially when regard is had to s 15C of the Acts Interpretation Act 1901 (Cth) which deems there to be an investment of jurisdiction whenever a federal law expressly or impliedly authorises a proceeding to be commenced in a particular court. Even so, the importance of the conditional investment of jurisdiction may be seen in s 39A(1) of the Judiciary Act: Federal jurisdiction invested in State Courts by other provisions (1) The federal jurisdiction with which a Court of a State is invested by or under any Act, whether the investing occurred or occurs before or after the commencement of this section, including federal jurisdiction invested by a provision of this Act other than the last preceding section: (a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2) of the last preceding section; and (b) shall be taken to be invested subject to paragraph 39(2)(c) (whether or not the jurisdiction is expressed to be invested subject to that paragraph), so far as it can apply and is not inconsistent with a provision made by or under the Act by or under which the jurisdiction is invested; in addition to any other conditions or restrictions subject to which the jurisdiction is expressed to be invested.
In short, s 39A ensures that the conditions imposed by s 39(2) apply, irrespective of which federal law invests federal jurisdiction in a State court, so far as that is possible.
The basic elements of the operation of those fundamental provisions in the Australian legal system are well-settled. It is a remarkable feature of the High Court's early decision in Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 that it disregarded the Privy Council's decision in Webb v Outrim [1907] AC 81 five months earlier and upheld the existence of federal power to take away all jurisdiction which "belonged to" State courts, only to invest it as federal jurisdiction subject to conditions. The joint judgment of Griffith CJ, Barton and O'Connor JJ said that: "The result is that the jurisdiction of the State Courts is now derived from a new source, with all the incidents of jurisdiction derived from that new source, one of which is an appeal in all cases to the High Court" (at 1137-1138).
For many decades there were doubts as to the precise operation of these provisions, which are less than ideally drafted. I have elsewhere sought to describe the course of authority on s 39 of the Judiciary Act 1903: M Leeming, Authority to Decide (2012, Federation Press), pp 141-152. It is not necessary for present purposes to address those matters. It is now clear that the effect of s 39 of the Judiciary Act is, by operation of s 109 of the Constitution, to deny any State jurisdiction in State courts when determining any of the matters identified in ss 75 or 76 of the Constitution. This was anticipated by Dixon J in Ffrost v Stevenson (1937) 58 CLR 528 at 573 and Latham CJ in Minister of State for the Army v Parbury Henty & Company Pty Ltd (1945) 70 CLR 459 at 483, was held by Walsh J in Felton v Mulligan (1971) 124 CLR 367, with whom Barwick CJ agreed at 373, and was ultimately endorsed in modern decisions commencing with Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457. In the most recent decision, PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 89 ALJR 975, French CJ, Kiefel, Bell, Gageler and Gordon JJ said at [53]: "The settled effect of [s 39(2) of the Judiciary Act] is that, where a matter which would otherwise be within the jurisdiction of a State court answers the description of a matter within s 75 or s 76 of the Constitution, the State court is invested with federal jurisdiction with respect to that matter to the exclusion of State jurisdiction under s 109 of the Constitution."
I shall return to that line of authority below. What matters for present purposes may now readily be stated. Each of the disputes between Mr Burns and Ms Corbett, and Mr Burns and Mr Gaynor, answers the description of a matter between residents of two States within the meaning of s 75(iv). If those disputes were brought in a New South Wales court, that court would be exercising federal jurisdiction invested by s 39(2) of the Judiciary Act. An appeal to the High Court (subject to the grant by that court of special leave) would lie, in accordance with s 35(2) and s 39(2)(c) of the Judiciary Act. May such a dispute be determined by the exercise of State judicial power in a State tribunal?

[11]

The nature of the threshold constitutional issue arising in this litigation

All parties and both intervening Attorneys-General agreed, in accordance with authority, that NCAT was not a "court of the State" for the purposes of Chapter III of the Constitution: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185; Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 at [8]. Those decisions concerned NCAT's predecessor, the Administrative Decisions Tribunal. There are some differences, including that NCAT has powers to enforce non-monetary orders and in relation to contempt which the Administrative Decisions Tribunal lacked (see ss 72 and 73 of the Civil and Administrative Tribunal Act 2013 (NSW)), but no party suggested that those differences warranted any different outcome or that this Court should not follow those decisions. The Attorneys‑General employed slightly different reasoning processes to reach the same conclusion. However, contrary to a muted suggestion from the Commonwealth, there is no occasion in this litigation to resolve the dispute between them, on which nothing turns, as to whose approach is correct.
All parties agreed that NCAT, in hearing and determining Mr Burns' complaints, was exercising judicial power. They were correct to do so. NCAT was determining whether there had been a contravention of the Anti-Discrimination Act, and, if so, whether a remedy should issue (which could include damages, an injunction, or an apology). If NCAT made such an order, Mr Burns could unilaterally obtain a certificate from NCAT's registrar which, when registered in a court, then "operates as a judgment of the Court": Civil and Administrative Tribunal Act, s 78 (monetary orders); Anti-Discrimination Act s 114 (non-monetary orders). In that way, Mr Burns would be able to obtain a binding, authoritative and curially enforceable judgment independently of the consent of the person against whom his complaint had been brought. Indeed, the pending prosecution of Ms Corbett for contempt starkly illustrates the enforceability of such orders.
The absence of any consent on the part of Ms Corbett or Mr Gaynor is critical. In TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5 at [28], French CJ and Gageler J observed that notwithstanding that a precise definition of the judicial power of the Commonwealth could not be given, its fundamental character was as a sovereign or governmental power exercisable "independently of the consent of those whose legal rights or legal obligations are determined by its exercise". Likewise, the joint judgment of Hayne, Crennan, Kiefel and Bell JJ emphasised the "consensual foundation of arbitration", in contrast with judicial power: at [108]-[109]. And it will be recalled that it was the trustee's consent to be bound by the determinations of the Superannuation Complaints Tribunal which was critical to distinguish the position in Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 at [43]-[44]. This therefore is a plain case of the exercise of judicial power, in accordance with what was held in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
There is of course ordinarily no difficulty in a State tribunal exercising State judicial power. The separation of powers found in Chapter III of the Commonwealth Constitution does not apply to a State: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [69]. But ever since R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, it has been clear that only courts may exercise the judicial power of the Commonwealth. It is impossible for a State tribunal which is not a "court of the State" within the meaning of s 77(iii) to exercise the judicial power of the Commonwealth.

[14]

Commonwealth's primary submission

The Commonwealth's primary submission drew upon the proposition formulated by Gaudron J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102 that there was an "integrated Australian judicial system for the exercise of the judicial power of the Commonwealth", and maintained that the implication was required to prevent the potential for fragmentation, if matters which otherwise would fall within ss 75 and 76 of the Constitution could be determined by State tribunals outside that unified system. It was said that: "The implication for which the Commonwealth contends is therefore required, as a matter of logical or practical necessity, to protect those features of the institutional landscape envisaged by Ch III. In that sense, it may be seen to have an 'essentially structural and functional foundation', similar to that which supports the Kable principle." [Citations omitted.]
The Commonwealth submitted that the entrenched supervisory jurisdiction of State Supreme Courts established by Kirk was no answer to its submission, because even so the concern was with "the undermining of the legislative power conferred by Ch III to provide for a measure of uniformity in the exercise of a jurisdiction that is 'national' in nature".
Although the Commonwealth's submission derived in part from the structure of Chapter III, the Commonwealth focussed also upon the text of s 77, so as to call in aid what it said was the less demanding test for implication based on the terms of the Constitution as opposed to its structure, something which was suggested by Mason CJ in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135. In APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [385], Hayne J observed that there may be room for debate about the way in which the test for such an implication is expressed. It will not be necessary to address this issue in this judgment.
The Commonwealth contended that its submission was supported by authority. First, in Commonwealth v Queensland (1975) 134 CLR 298 at 328, Jacobs J (with whom McTiernan J "substantially" agreed) expressed the following expansive view: "The subject matters under [ss 75 and 76] of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch. III of the Constitution."
Secondly, the Commonwealth relied on what was said by Gummow, Hayne, Heydon, Crennan and Kiefel JJ in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [153]: "The submissions to the contrary, particularly those of the Commonwealth, are to be preferred. There is no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a 'court of a State' and that in respect of a body that is a 'court of a State', they may confer non-judicial powers." [Emphasis added.]
The Commonwealth emphasised the qualification in that passage, and maintained that it reflected a submission made by the Commonwealth and recorded in 237 CLR 501 at 507: "A State Parliament cannot invest bodies that are not State courts with jurisdiction in respect of matters covered by ss 75 and 76. To do so would undermine the operation of s 77(iii) which allows the Commonwealth Parliament to define the extent to which the jurisdiction of any federal court in respect of those matters is to be exclusive of the jurisdiction of State courts." The Commonwealth submitted that "[t]heir Honours apparently accepted that submission".
Thirdly, the Commonwealth also relied upon the broad statements of principles in Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) [2006] NSWCA 349; 236 ALR 385 and Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85; [2008] FCAFC 104 which referred in terms to the power to confer jurisdiction on tribunals. In the former, Spigelman CJ had said (at [56]): "A State Parliament cannot confer on a court, let alone on a tribunal, judicial power with respect to any matter referred to in s 75 or s 76 of the Constitution."
In the latter, Kenny J had quoted that passage from 2UE Sydney with evident approval at [220]. The Commonwealth said of these decisions that: "properly understood, their Honours were doing no more than describing (in cumulative fashion) the operation of the implied limitation identified above (as concerns tribunals) and the operation of the Judiciary Act and s 109 of the Constitution (as concerns Courts) - see particularly Spigelman CJ at 394 [49], [50] and 395 [55] and Kenny J at 134 [209]." [Original emphasis.]
The Commonwealth submitted, by reference to what had been said by Spigelman CJ in 2UE and by Kenny J that: "No member of the High Court in K-Generation found it necessary to refer to these two cases specifically on that point but the reasoning in the plurality's judgment at 544 [153] as cited above is consistent with their correctness."
The Commonwealth acknowledged that those unequivocal passages required "some attenuation" by reference to what had been said in MZXOT concerning those matters in ss 75 and 76 which had belonged to the States. The Commonwealth expressly acknowledged that the State courts had jurisdiction which "belonged" to them, irrespective of any conferral or investment of federal jurisdiction pursuant to s 77(ii) and (iii), in diversity matters.

[16]

State's response

It will not be necessary to summarise all aspects of the State's response to the Commonwealth's primary submission. The State maintained that it retained power to confer the "belonging jurisdiction" - jurisdiction its courts had exercised in the nineteenth century - after Federation, subject to the exercise of legislative power under s 77(ii) of the Constitution. It submitted that statements by Jacobs J, Spigelman CJ and Kenny J on which the Commonwealth relied were wrong in principle, in that they disregarded the undoubted "belonging to" jurisdiction of State courts. According to the State, there could not be an "exhaustive enunciation" in ss 75 and 76 in the sense that it was impossible for State judicial power to determine the matters identified in those sections. It submitted that: "If Jacobs J's dictum is correct, this would mean that, prior to the Judiciary Act, no court in Australia was capable of exercising jurisdiction in any matter mentioned in s 75 or s 76 (including any case involving residents of different States)", a point which had been noted by some commentators.
New South Wales also pointed to the absence of separation of powers at the State level, such that State judicial power could validly be conferred upon a tribunal. In its written submissions, it relied on the result in Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410. It said that the implication proposed by the Commonwealth was not logically nor practically necessary.
In response to the Commonwealth's alternative submission, New South Wales pointed to the text of s 77 of the Constitution and s 39(2) of the Judiciary Act, observing that both were confined to courts and submitting that there could not be an "implied negative stipulation in relation to bodies other than State courts". Thus Mr Sexton observed that "s 77(ii) of the Constitution refers only to courts of a State". It followed, so it was said, that s 109 was not engaged.

[17]

Mr Gaynor's broader submission and its rejection

The submissions advanced on behalf of Mr Gaynor went further than that of the Commonwealth. Mr King submitted that any submission that the "belonging jurisdiction" of State courts "survived the new constitutional compact should be rejected as inconsistent with basal principle and the express words in Constitution sections 74 and 75, and the clear tenor of authority: eg Macleod v Attorney-General (NSW) [1891] AC 455 at 457-458." The submission was maintained and indeed emphasised in oral address: "However, we respectfully submit that it's not correct for the State to argue that, as at 1901, there was a diversity jurisdiction in this Court. That's the fundamental premise upon which my friend proceeds in his argument, and the case of Macleod in the Privy Council, the decision of Lord Halsbury, which we set out in detail in our submissions in reply, demonstrates the falsity of that proposition. One only needs to think about it for a moment to see why the judgment of Lord Halsbury is still pertinent. Indeed, we note that the High Court in the case of Welker, which we referred to in our written submissions, as recently as 1970 adopted Lord Halsbury's judgment; but the point we make is this, with respect, the concept that in 1901 the state courts had the power, judicial power, to decide a hearing between somebody living in Victoria or New Zealand, or anywhere else, and Mr Burns, or somebody in the same position as Mr Burns, is, we say unsupportable."
The Commonwealth rightly disassociated itself from Mr Gaynor's submission. In oral submissions, Mr Lenehan said: "We acknowledge the belonging jurisdiction. The consequence is that there remains a concurrent jurisdiction in the courts of the State in all those cases of federal jurisdiction which would have been in the competence of the courts of the States if no federal courts had existed, and this is the part that we emphasise ..."
It is convenient to address Mr Gaynor's broader submission immediately, in order to reject it. It is, with respect, wrong in principle and inconsistent with authority binding on this court.
To the extent that Mr Gaynor's submission is founded on Macleod, that is a decision about the extraterritorial legislative competence of the colonial legislatures, which says nothing of the jurisdiction of colonial Supreme Courts, which were created pursuant to imperial legislation, with jurisdictions defined by reference to the superior courts at Westminster. In any event, Macleod has been regarded as bad law for many decades. The passage of the advice given by Lord Halsbury in Macleod on which Mr Gaynor relied was reproduced in the unanimous judgment of the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 11. The High Court proceeded to note that the doctrine of extraterritorial legislative incompetence in its application to a Dominion was rejected by the Privy Council in Croft v Dunphy [1933] AC 156 at 163. It may also be noted that there had been, prior and subsequent to federation, an extensive history of legislation dealing with the service and execution of process outside the colonial and state borders, a large part of which involved a jurisdiction between residents of two colonies of States: see The Australasian Civil Process Act 1886 which continued in force after federation (by s 7 of the Constitution Act 1900 (Imp)) until repealed by the Service and Execution of Process Act 1901 (Cth). In Ammann v Wegener (1972) 129 CLR 415 at 443, Mason J referred to "[t]he difficulties which had existed in the Australian colonies in the nineteenth century affecting the service or execution in a colony of process issued in another colony", as did the joint judgment in Dalton v NSW Crime Commission (2006) 227 CLR 490; [2006] HCA 17 at [25].
Mr Gaynor's submission is also contrary to authority. In 1901, Quick and Garran wrote that: "The Constitution, whilst it confers jurisdiction, or enables jurisdiction to be conferred, on the federal courts, in certain cases, does not take away the pre-existing jurisdiction of the State courts in any of those cases. The consequence is that there remains a concurrent jurisdiction in the courts of the States in all those cases of federal jurisdiction which would have been within the competence of the courts of the States if no federal courts had existed": J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901, Sydney Legal Books), p 802.
As much has been confirmed by the High Court. I will return to this below, because it is material to the resolution of the interveners' submissions. For present purposes, it may be noted that in Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 479, the majority addressed what had happened first in relation to the five classes of matters identified in s 75, and then the four identified in s 76: "As Walsh J observed in Felton v Mulligan s 39(1) of the Judiciary Act took away the jurisdiction of State courts in matters in which the High Court had jurisdiction. ... The jurisdiction of State courts in those matters in which this Court might have original jurisdiction conferred on it but in which such jurisdiction was not conferred, was not affected [by s 39(1)]." And it will be recalled that in the passage from PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 89 ALJR 975, reproduced at [27], French CJ, Kiefel, Bell, Gageler and Gordon JJ explained the "settled effect" of s 39(2) of the Judiciary Act as investing federal jurisdiction in State courts where a matter "which would otherwise be within the jurisdiction of a State Court" answers the description of a matter within ss 75 or 76, and that that investment is "to the exclusion of State jurisdiction under s 109 of the Constitution". The reference to s 109 necessarily entails that it is a federal law which excludes State jurisdiction, and not some implication drawn from the Constitution itself.
Mr King was correct to observe that the existing diversity jurisdiction of State courts in 1901 was a fundamental premise of the interveners' arguments in this Court. That premise is entirely sound. Mr Gaynor's submission to the contrary must be rejected.

[19]

Principle

In point of principle, the Commonwealth's primary submission falls down when measured against the express language of the Constitution. The Commonwealth focussed on the text of s 77, but also called in aid the structural features of Chapter III. But Chapter III does not itself mandate a uniform national system within the classes of matters falling within federal jurisdiction. Whether or not there is such uniformity depends on the extent to which the legislative power in s 77 is exercised. The conferral of legislative power by s 77 says nothing of whether such power is to be exercised, and, if so, how it is to be exercised. That choice, which the Constitution leaves to the Commonwealth Parliament to make, cannot sustain an implication denying legislative power to the State irrespective of whether and how federal legislative power is exercised.
If and to the extent that the legislative power conferred by s 77 is exercised, then s 109 of the Constitution will ensure that any inconsistent State law is inoperative. Conversely, to the extent that the legislative power conferred by s 77 is not exercised, then the other provisions in Chapter V of the Constitution, notably ss 106, 107 and 108, suggest that the Constitution, powers and laws of the States continue as they were. That is not merely hypothetical supposition. As New South Wales pointed out, Local Land Boards established under the Crown Lands Act 1884 (NSW) were regarded as being validly empowered at the time of federation to exercise judicial power. One example was a determination of whether a mortgagee took with constructive notice of false statements in a conditional purchase application: Wilson v Minister for Lands (1899) 20 NSWLR 104 (FC); Wilson v Minister for Lands (1901) 1 SR (NSW) 177 (PC) at 183, even though, as Darley CJ observed, the boards were constituted by "men ... without any legal training or any possible knowledge of an abstruse equitable doctrine" (at 109).
Of course, State courts in 1901 did not have authority to decide all the matters identified in ss 75 and 76. The most famous instance may be seen from the litigation culminating in Hannah v Dalgarno (1903) 1 CLR 1, where, prior to the enactment of the Claims against the Commonwealth Act 1902 (Cth), Griffith CJ, Barton and O'Connor JJ said (at 8) that: "Apart from this Act, the Supreme Court of New South Wales had no jurisdiction to entertain an action against the Commonwealth, unless the Commonwealth had voluntarily submitted to its jurisdiction, which is not suggested."
Aspects of that reasoning have been superseded by what was established in Commonwealth v Mewett (1997) 191 CLR 471 and British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; [2003] HCA 47, but it remains quite clear that the State Supreme Courts' "belongs to" jurisdiction did not extend to all the matters identified in ss 75 and 76. In MZXOT v Minister for Immigration and Citizenship, Gleeson CJ, Gummow and Hayne JJ said at [25]: "Perusal of the nine paragraphs of ss 75 and 76 of the Constitution discloses that while some identify controversies well known in the anterior body of general jurisprudence in the colonies (for example, actions in tort or contract between residents of the former colonies), that was not so with respect to other heads of federal jurisdiction. How then could the adjudication of these controversies be said to 'belong to' State jurisdiction? If they could not be so described, there was no occasion for any later federal law to rely upon s 77(ii) and for s 109 of the Constitution then to render inoperative that which did not otherwise exist." [Citations omitted.]
But equally, it is quite clear, as the Commonwealth accepted, although contrary to Mr Gaynor's submission, that State courts in 1901 continued to have jurisdiction, such as that involving the residents of two States, which they had long enjoyed.
To reiterate, the Constitution left it open to the Commonwealth Parliament to have a High Court with original jurisdiction confined to s 75 matters and otherwise not to exercise the powers to create federal courts or to invest federal jurisdiction in State courts. The Constitution also left it open to follow the course adopted in s 39(1) and (2) and to use the power conferred by s 77 extensively, the effect of which was to take away the State jurisdiction which "belonged to" State courts in respect of ss 75 and 76 matters, and reinvesting those courts conditionally with federal jurisdiction in respect of such matters.
Thus, the fact that s 77 empowered the Commonwealth Parliament to exercise the legislative power conferred, rather than mandating any particular outcome, is fatal to the Commonwealth's submission based on an implied restriction. If and to the extent that the Commonwealth Parliament exercised that legislative power, it is through s 109 that the federal purpose will be effectuated.
I can be more concise when dealing with the structural aspect of the Commonwealth's primary submission. Of course, as noted at the outset of these reasons, it is settled law that Chapter III impliedly prevents the conferral of federal judicial power upon bodies other than courts, and the conferral of State judicial power upon federal courts. But neither of those undoubted implications assists in sustaining the implication for which the Commonwealth contends upon the conferral of State judicial power upon State tribunals. Why should Land Boards be unable in 1902 to determine a dispute between residents of two States about land in New South Wales, when the same board had been able in 1899 to determine the same dispute between the same people when they were residents of the former colonies? It is settled law that federation did not remove the "belongs to" jurisdiction of State courts; why ever should it have removed the existing jurisdiction of State tribunals?
In contrast, the Commonwealth's alternative submission sits well with existing settled authority, already mentioned above, culminating in PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 89 ALJR 975 at [53]. Those decisions bind this Court. They hold that the conditional investment of federal jurisdiction upon State courts by s 39(2) engages s 109, thereby excluding State jurisdiction. It is as well to review these authorities, insofar as they direct attention to how s 39(2) engages s 109.
In Ffrost v Stevenson (1937) 58 CLR 528, one question was the relationship between imperial Orders in Council under the Fugitive Offenders Act 1881 (Imp) and the regime under the Service and Execution of Process Act 1901 (Cth), both of which arguably applied to the return to the Territory of New Guinea of a man arrested in New South Wales. In the course of addressing whether the latter was repugnant to the former, Dixon J considered s 109 and the nature of the vesting of federal jurisdiction in State courts under s 39(2) at 573: "It has always appeared to me that, once the conclusion was reached that Federal jurisdiction was validly conferred, then under s 109 it was impossible to hold valid a State law conferring jurisdiction to do the same thing, whether subject to no appeal or subject to appeal in a different manner or to a different tribunal or tribunals, or otherwise producing different consequences."
This was an obiter passage in a dissenting judgment, reflecting Dixon J's nuanced approach to inconsistency, and was contrary to what had been said in Lorenzo v Carey (1921) 29 CLR 243, but it has proven influential and anticipated what is now settled law. Its force was rapidly appreciated by Latham CJ in Minister of State for the Army v Parbury Henty & Company Pty Ltd (1945) 70 CLR 459 at 483, who suggested that this aspect of the operation of federal jurisdiction might require further consideration.
In Parbury Henty at 505, Dixon J returned to the very broad purpose of s 39(2) in the following terms: "The provision was meant to cover the whole field of Federal jurisdiction so that the conditions embodied in the four paragraphs of sub-s 2 should govern its exercise whether the cause of action, the procedure and the liability to suit arose under existing or future legislation. To that end it invested State courts with the full content of the original jurisdiction falling within the judicial power of the Commonwealth .... An acknowledged purpose was to exclude appeals as of right to the Privy Council, and it was intended to exclude them over the whole field of Federal jurisdiction. That jurisdiction was, therefore, conferred in its entirety, leaving it to future legislation to bring into being new subject matters and deal with procedure and liability to suit. The contrary view would mean that to proceedings under a great number of provisions of Federal law, of which ss 245 and 246 of the Customs Act may serve as an example, the conditions of s 39 would not apply.
In Felton v Mulligan (1971) 124 CLR 367 at 411, Walsh J reviewed previous authorities and said that "Section 39(1) of the Judiciary Act took away the jurisdiction of the State courts in matters in which this Court had jurisdiction". His Honour then dealt with the drafting difficulty in s 39, insofar as s 39(1) was directed only to the five classes of matters identified in s 75, while s 39(2) was directed to the entirety of matters which fell within federal jurisdiction, and rejected the analysis in Lorenzo v Carey. His Honour said at 412-413: "In my opinion the problem must be resolved by treating the Commonwealth law as paramount and as excluding, in relation to the matters to which that law applies, the operation of the laws under which the State jurisdiction of the court would be exercised. ... The supremacy of the laws of the Commonwealth over the legislation of the State of New South Wales is established by covering cl 5 and s 109 of the Constitution. ... Doubts have been expressed by Professor Cowen and by Professor Sawer as to the availability of s 109 to meet the problem under discussion. ... Those writers have suggested that s 39 does not disclose an intention 'to cover the field', but, on the contrary, indicates that the intention was not to override, in all the matters to which s 39(2) refers, the jurisdiction which already belonged to the State courts. But in spite of difficulties created by the manner in which s 39 has been framed, my conclusion is that the laws under which the State courts would exercise their 'belonging' jurisdiction are made inoperative by s 39. If sub-s (2) thereof had simply invested the State courts with federal jurisdiction without adding the conditions and restrictions to which the investing was expressed to be subject, there would be perhaps no conflict with any laws under which the State courts already had jurisdiction. But when the conditions which have been attached to the grant of federal jurisdiction are considered, I think it should be held that Parliament intended that in the federal matters to which the section relates the only jurisdiction to be exercised by the State courts was to be federal jurisdiction, the exercise of which would be subject to the specified conditions."
The analysis of Walsh J was expressly approved in Moorgate Tobacco Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 479 by Stephen, Mason, Aickin and Wilson JJ: "As Walsh J observed in Felton v Mulligan [(1971) 124 CLR at pp 411-412], s 39(1) of the Judiciary Act took away the jurisdiction of State courts in matters in which the High Court had jurisdiction. This was achieved by making the jurisdiction of this Court exclusive of that of State courts. The jurisdiction of State courts in those matters in which this Court might have original jurisdiction conferred on it but in which such jurisdiction was not conferred, was not affected. However, by s 39(2) State courts were invested with federal jurisdiction in both classes of matter. We agree with the reasons given by Walsh J [(1971) 124 CLR at pp 412-413] for 'treating the Commonwealth law as paramount and as excluding, in relation to the matters to which that law applies, the operation of the laws under which the State jurisdiction of the court would be exercised'. The supremacy of Commonwealth law in this respect is based on s 109 of the Constitution and covering cl 5."
That position is now to be regarded as settled. In addition to what was said in PT Bayan Resources TBK v BCBC Singapore Pte Ltd at [53] which is reproduced above, the same points were made in MZXOT. The joint judgment of Gleeson CJ, Gummow and Hayne JJ at [24] said: "The accepted view is that the denial of jurisdiction which otherwise 'belongs to' the courts of the States manifests the operation of s 109 of the Constitution (with respect to the Judiciary Act provisions) upon the State laws which otherwise provide for the jurisdiction of the courts of the States. Those State laws are rendered 'inoperative'. If this reasoning be applied to the present situation, it is by operation of s 109 of the Constitution that there is denied the competency of any State court, in the absence of a federal law investing it with federal jurisdiction, to adjudicate upon the action the plaintiff brings against the Minister for judicial review."
That "accepted view" followed a reference in the previous paragraph to the phrase "the jurisdiction of the High Court" including a reference to original jurisdiction conferred by ss 75, thereby including s 75(iv) matters. In the following paragraph, their Honours referred to a further ground for that outcome, namely, that some of the subject matters of federal jurisdiction were novel and did not fall within jurisdiction which "belonged to" the State Supreme Courts. However, their Honours drew a distinction with "controversies well known in the anterior body of general jurisprudence in the colonies (for example, actions in tort or contract between residents of the former colonies". The passage unambiguously proceeds on the basis that State courts continued to have jurisdiction in relation to matters answering the description in s 75(iv) between residents of two States.
To similar effect, the joint judgment of Heydon, Crennan and Kiefel JJ stated at [180] that: "Once a State Supreme Court is validly invested with federal jurisdiction, pursuant to s 77(iii), then under s 109 of the Constitution a State law conferring jurisdiction to do the same thing is no longer valid or is inoperative. Section 39(1) of the Judiciary Act operates to remove the jurisdiction of State Supreme Courts in all nine matters enumerated in ss 75 and 76 in which this Court has original jurisdiction, and additional jurisdiction conferred by Parliament, and then invests jurisdiction in those State courts in some, but not all, of those enumerated matters."
Substantially the same considerations apply for regarding s 39(2) as engaging s 109 so as to render State conferral of judicial power on State courts inoperative as render State conferral of judicial power on State tribunals inoperative. Putting to one side s 38, the essence of s 39(2) is to invest federal jurisdiction conditionally, so as to ensure that appeals lie to the High Court, and to do so universally, in all matters falling within ss 75 and 76. To the extent that matters falling within ss 75 or 76 are determined by the exercise of judicial power which is not qualified in the way achieved by s 39(2), that alters, impairs or detracts from the federal law.
New South Wales' submissions directed attention to the fact that s 39(2) referred only to State courts, and that the context in which it appeared was in a provision investing jurisdiction on State courts. The State submitted that: "It is beyond both the words used and the use of those words in context to accede to the Commonwealth's contention that s 39(2) includes an implied negative stipulation in relation to bodies other than State courts."
However, it is not necessary to discern an "implied negative stipulation" in order for s 109 to be engaged. The submission resembles that advanced by Professors Cowen and Sawer which was rejected by Walsh J in Fenton v Mulligan in the passages reproduced above. It is sufficient, in order for s 109 to operate, for a State law, if operative, to alter, impair or detract from the federal law. If that is so, there is no need to inquire whether the federal law was intended to be a complete statement of the law governing the area: Telstra v Worthing (1997) 197 CLR 61 at [28]; Dickson v The Queen (2010) 241 CLR 491; [2010] HCA 30 at [13]. The issue instead must turn upon the proper interpretation of the federal law in question, having regard to its subject, scope and evident purpose: Dickson at [34].
Although the balance of the State's submission has a sound textual base and is not without force, ultimately, I conclude that it treats the operation of s 39(2) too narrowly. To reiterate, the effect and purpose of s 39 of the Judiciary Act is that where any matter identified by ss 75 or 76 is determined by a court, that will occur by the exercise of the judicial power of the Commonwealth, and be subject to an appeal to the High Court. If a State law permitted the determination of a matter identified by ss 75 or 76 by the exercise of judicial power but not subject to an appeal to the High Court on the terms mandated by s 39(2), then it would alter, impair or detract from the conditional and universal operation of federal law. (I note that it was not contended that the alteration or impairment or detraction was trivial: Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33 at [41]. Given the importance of the federal purpose reflected in s 39, New South Wales was correct to adopt that course.)
Further, acceptance of the State's submission would give rise to the following difficulty. Suppose a State law validly authorised a tribunal to determine a dispute between residents of two States. There might or might not be a right of appeal from that tribunal's decision to a court, but even if there were no appeal, this Court's supervisory jurisdiction extending to jurisdictional error would be available. On the State's argument, the tribunal would be exercising State judicial power, but the court hearing an appeal or exercising judicial review would be exercising federal jurisdiction invested by s 39(2). That seems strange, particularly in light of the further consequences which turn on the presence of federal jurisdiction (for example, ss 79 and 80 of the Judiciary Act). If the State's submission were accepted, then there could be different incidents to litigation at first instance in a State tribunal and on appeal or in judicial review. Another example emerges from s 55B(4) of the Judiciary Act: a legal practitioner with a right to practise in any State court would be entitled to appear in the State court hearing the appeal or judicial review, even if he or she were not admitted in that State, but the same person might not be entitled to appear in the State tribunal. Considerations of this nature were applied by a unanimous High Court in Dickson v The Queen at [20]. Such considerations illustrate one reason why acceptance of the State's submission results in an alteration or impairment of or detraction from s 39(2) of the Judiciary Act.

[20]

Authority

I turn to authority. Such authority as there is does not alter either of the conclusions reached above.
As already noted, the line of authority as to the breadth of the purpose and operation of s 39 of the Judiciary Act is aligned with an acceptance of the Commonwealth's submission based on s 109.
It is true that there are passages in the authorities, notably in the judgment of Jacobs J in Commonwealth v Queensland (1975) 134 CLR 298, which has been applied at the intermediate appellate court level, which are expressed in universal terms and which may be read as supporting a conclusion that it was beyond power for State Legislatures to confer jurisdiction upon State tribunals to determine the matters described in ss 75 or 76.
However, there are two difficulties with those decisions. The first is that they were not decisions where arguments based on both legislative incapacity and s 109 inconsistency had been advanced; it follows that it may be unsafe to rely upon them in support of either the Commonwealth's primary submission or its alternative submission. The second is that those decisions need to be reconciled with MZXOT insofar as they fail to attend to the "belongs to" jurisdiction of State courts. MZXOT confirms that although State courts did not have any s 75(v) jurisdiction in respect of officers of the Commonwealth aside from federal law, State courts did have jurisdiction belonging to them (which is to say, State jurisdiction in the sense used by Isaacs J in Baxter) to determine disputes between residents of two States (notwithstanding that the subject matter was a matter in federal jurisdiction).
The first difficulty may be illustrated with Kenny J's comprehensive judgment in the Tasmanian ADT Case. I acknowledge that on a fair reading of the reasons as a whole, her Honour accepted the Commonwealth's submission that there was an implication derived from Ch III. That emerges most clearly from her Honour's reasons at [222]. However, as her Honour noted at [165], no submission based on s 109 was pressed before her Honour, and for that reason, it was not necessary for her Honour to distinguish between whether the State law was ineffective through want of power or because of the effect of s 109. That led to statements which, in light of the refined submissions advanced in this Court, may be seen to be somewhat imprecise. For example, at [208], her Honour said: "There is nothing to prevent the Tribunal from exercising the judicial power of the State of Tasmania. For the reasons that follow, I accept that, if the Tribunal were to proceed to conduct an inquiry into Mr Nichols' complaint, it would be purporting to exercise the judicial power of the Commonwealth. This is the effect of s 75(iii) of the Constitution, the structural considerations inherent in Ch III and recognised by authority, and the terms of s 39 of the Judiciary Act." [Emphasis added.]
Similarly, at [209], her Honour said: "The effect of s 75(iii) of the Constitution and s 39 of the Judiciary Act is that only the judicial power of the Commonwealth can be exercised by a court in a proceeding to which the Commonwealth is a party."
The references to the Judiciary Act are of course entirely apt to support the conclusion that the tribunal could not validly exercise judicial power in a case where the Commonwealth was a party. However, any constitutional implication must hold irrespective of whether s 39 was enacted. The foregoing is not intended as a criticism of the judgment; it shows the danger in using broadly stated reasoning which was directed to a different submission.
It is as well to set out the entire passage in the reasoning of Jacobs J in Commonwealth v Queensland (1975) 134 CLR 298 at 327-328 on which reliance is placed: "In my opinion the judicial power delineated in Ch III is exhaustive of the manner in and the extent to which judicial power may be conferred on or exercised by any court in respect of the subject matters set forth in ss 75 and 76, 'matters' in those sections meaning 'subject matters'. This is so not only in respect of federal courts but also in respect of State courts whether or not they are exercising jurisdiction conferred on them under s 77(iii). In respect of the subject matters set out in ss 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch III and if in respect of those matters an investing with federal jurisdiction of a State court does not enable it to perform the particular judicial function, then in respect of those matters the State court cannot under any law exercise that judicial function. Therefore, if in respect of those matters a State court exercising federal jurisdiction cannot give 'advisory opinions' it cannot in respect of the same matters give such opinions in exercise of some State jurisdiction. Chapter III of the Constitution is so constructed that the limits of the Commonwealth power to invest State courts with federal jurisdiction with respect to the matters mentioned in ss 75 and 76 mark out the limits of the judicial power or function which in any case State courts can exercise in respect of those matters. A State thus could not empower one of its courts to give advisory opinions on those subject matters. The court would be exercising judicial power but not a judicial power envisaged by Ch III and able to be conferred on it by the Commonwealth. It is then no answer to say that the State is conferring a judicial power which the Commonwealth is unable to confer. There is here no residuary State power, because Ch III is an exhaustive enunciation." [Emphasis added.]
True it is that that language is broadly expressed - more broadly than any of the other judgments. With the utmost respect to Jacobs J, the generality of that passage cannot be reconciled with the State courts' undoubted exercise of "belongs to" jurisdiction prior to the enactment of the Judiciary Act in 1903 in respect of matters between the residents of two States. Indeed, the Commonwealth properly acknowledged that it is necessary to have regard to the subsequent decision in MZXOT, which decision confirms the existence of a "belongs to" jurisdiction in State courts, at least in relation to claims between residents of two States. If the words "there is here no residuary State power" are to be read as supporting the implication for which the Commonwealth contends, then they cannot be reconciled with this aspect of MZXOT.
Further, nothing in Commonwealth v Queensland turned upon the capacity to confer judicial power on a tribunal. Once again, there is a difficulty in relying on broadly stated aspects of reasons in a case to support a proposition which was not determined by the case. This point was made by Walsh J in Felton v Mulligan, when reliance was placed on appeals which had been brought to the Privy Council from Supreme Courts exercising federal jurisdiction, but where no point had been taken that that could not occur. Walsh J said at 413: "[L]eave to appeal to the Privy Council has been granted by the Supreme Court in respect to decisions which, if the contention of the respondents is right, must have been decisions to which s 39(2)(a) applied because they were decisions upon matters arising under laws of the Commonwealth Parliament. I think that this is so, but in those cases the question now under consideration was not raised and they cannot be treated as authorities against the conclusion which I have reached."
The same point was made by Lord Porter delivering the judgment of the Privy Council in Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 638 when he said, accepting Barwick KC's submissions (recorded at 560-561) criticising the appellant's reliance on broad language in a judgment, that: "These words must (as must every word of every judgment) be read secundum subjectam materiam. They were appropriate to their context and must be read in their context."
Thirdly, much the same applies to the reasoning in 2UE Sydney, which was heavily based on the statement by Jacobs J. With great respect to Spigelman CJ, the force of that reasoning, insofar as it supports the conclusion that the inability of a State tribunal to determine a matter arising under s 76, is affected by the way in which the submission had been advanced (namely, that covering clause 5 conferred jurisdiction on a State tribunal) and cannot be reconciled with the fact that the "belongs to" jurisdiction of State courts was not swept away by federation. The same applies to Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253, upon which the Commonwealth placed qualified reliance. Lustig takes the matter no further.
Fourthly, the Commonwealth's elaborate submissions based on what was submitted and determined in K-Generation are ill-founded. It is true that Mr Gageler's submission on behalf of the Commonwealth was ultimately to the same effect as was made in this Court (see transcript, 5 November 2008, p 104). It may be that the formulation of principle in the reasons at [153] on which the Commonwealth relies was influenced by that submission, although for my part I doubt whether it is proper to construe the precedential authority of the passage in the judgment in the fashion for which the Commonwealth contended. But let it be assumed, favourably to the Commonwealth, that all those steps are made out. There is a world of difference between confirming that a State legislature may confer judicial power with respect to subject matter outside the matters identified in ss 75 and 76 on a body which is not a court and denying that a State legislature may do so with respect to a matter identified in ss 75 and 76. The former is self-evident; the latter - which is the issue presented in these proceedings - is far from straightforward.
The Commonwealth's submission displays the same fallacy as would be disclosed by deriving from the premise "If it is raining, then the street is wet" the conclusion that "If it is not raining, then the street is not wet." That is a fallacious mode of formal reasoning, which may lead to a slippery fall in real life (it is described as "Improper Transposition" by W Wilson, "Formal fallacy", in R Audi (ed), The Cambridge Dictionary of Philosophy (2nd ed 1995, Cambridge University Press) pp 316-317). This mode of reasoning cannot safely be used to derive support for the proposition presently being considered from what was said in K-Generation.
Finally, although its written submissions treated Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 as having a ratio which "must include the fact that a State administrative tribunal which is not a 'court of a State' is not prevented from exercising authority over the Commonwealth", Mr Sexton very properly drew this Court's attention to statements in that case holding that that tribunal did not exercise judicial power, or at least doubting that that was the case. McHugh J said that for the purpose of the present proceedings, the tribunal was a quasi-legislative body: "It makes, not declares, rules": at 460. Gummow J accepted Mr and Mrs Henderson's submission that the tribunal was an administrative body: at 474-475. Dawson, Toohey and Gaudron JJ "very much doubt[ed] whether proceedings before the tribunal are judicial proceedings rather than proceedings of an administrative tribunal": at 448. It follows that the proposition that a State tribunal exercising judicial power could determine a s 75(iii) matter is not supported by the reasons of five of the judges who participated in Re Residential Tenancies Tribunal.

[22]

Burns v Corbett

Three questions were referred to this Court under r 28.2 of the Uniform Civil Procedure Rules: (a) Did the Administrative Decisions Tribunal have jurisdiction to resolve the complaint under s 49ZT Anti-Discrimination Act 1977 (NSW) made by the plaintiff against the defendant? (b) Did the Appeals Panel of the NSW Civil and Administrative Tribunal have jurisdiction to resolve the said complaint? (c) Is the judgment obtained by the filing of the certificate in the registry of the Supreme Court in accordance with s 114 of the Anti-Discrimination Act 1977 (NSW) valid and enforceable against the defendant even if the orders of the relevant Tribunal the subject of the certificate are void or voidable?
The Commonwealth proposed that the third question be reformulated so as to read: "Having regard to the answers to (a) and (b), are the orders that appear in the document headed 'Judgment/Order' entered on 23 October 2015 in matter no 2014/00270109 valid and enforceable against the defendant?"
The Commonwealth's proposal was based on the observations that (a) the question was not the characterisation of the tribunal's orders being void or voidable, but instead that they were made without jurisdiction, and (b) it was more accurate to refer to the effect of s 114 upon the filing of a certificate, rather than to "the judgment obtained by the filing of the certificate". There was no opposition to either reformulation, and common ground that there was power to do so. The Commonwealth's criticisms are sound. In particular, the statement in State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [21] that it is "necessary to exercise great care in using words like 'void', 'voidable', 'irregularity' and 'nullity'" is equally applicable to the issues that arise in this matter. The question should be reformulated as proposed.
The reasons set out above entail that the first and second questions be answered negatively. Just as State law is inoperative to authorise a determination by NCAT of a matter between the residents of two States, it likewise is inoperative to deem a certificate issued by NCAT's Registrar to have the effect of a judgment if it is filed in this Court. It follows that the answer to the third question is also negative. The consequence is that at no time was there an enforceable obligation upon Ms Corbett to make an apology (public or private) to Mr Burns. Lest there be any doubt about the position in other cases, the fact that an order of a superior court is set aside on appeal is not of itself an answer to a charge of contempt based on non-compliance with it while it is in force: see the decisions collected in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [17]. The different result in the present case derives from the force of s 109 of the Constitution upon a State law which has at all times been inoperative and has therefore never given any legal effect to a certificate filed in a court.

[23]

Gaynor v Burns

Mr Gaynor appears to have three originating processes pending in this Court. Passing over a number of irregularities as to parties and the proceedings in which they have been filed, the first two are summonses in materially identical terms seeking declaratory and injunctive relief. The declarations sought in paragraphs 4 and 5 go to matters which have not been argued. The declaration sought in paragraph 3 was that NCAT was not a "court of the State" within the meaning of s 77(iii) of the Constitution, something which is common ground between the parties. There is no utility in making any such declaration. The declarations sought in paragraphs 1 and 2 are too broad. This Court should instead declare that NCAT was not authorised to decide the three complaints made by Mr Burns concerning Mr Gaynor which were referred to it by the President of the Anti-Discrimination Board.
Mr Gaynor also seeks an order in the nature of prohibition prohibiting Mr Burns from "proceeding further with the complaints before [NCAT] specified in the Schedule to the Submissions of the Plaintiff dated 29 August 2016". Those submissions identify 28 complaints said to have been lodged with the Anti-Discrimination Board and 12 proceedings in NCAT. Of the latter, one was withdrawn, two stayed pending appeal, one dismissed but subject to appeal, six set down for case conference, and one "unknown".
Mr Burns opposed this Court making any such order. It is not appropriate to do so. First, the proceedings are not presently before this Court. Secondly, there is no evidence of the formulation of those proceedings. Thirdly, it is clear that even according to Mr Gaynor's submissions, the information is incomplete (for example, the status of one is "unknown"). Fourthly, nothing in these reasons stands against the Anti-Discrimination Board attempting to resolve a claim. Fifthly, it is not clear that this Court's reasons will extend to all of those proceedings which have been referred to NCAT (for example, I have in mind what was held in Watson & Godfrey v Cameron (1928) 40 CLR 446 to the effect that if one of the defendants were a resident of New South Wales, there would not be a matter "between residents of different States" within the meaning of s 75(iv)). Sixthly, no such order is necessary, because Mr Gaynor may by application in each of the proceedings seek such orders as he may be advised.
The third originating process is an appeal from an adverse order as to costs made by NCAT against Mr Gaynor. After leave had been granted by this Court, the State of New South Wales intervened in the proceedings pending in NCAT. No party nor intervener suggested that that altered the fact that the dispute remained one answering the description in s 75(iv). Mr Gaynor submitted that it would be unnecessary to decide the appeal if the primary argument succeeded (transcript, 30 November 2016, p 3).
In those circumstances, it is appropriate to accede to Mr Gaynor's submission, and simply dismiss the appeal. It will be clear from the foregoing that the costs order made against Mr Gaynor by NCAT cannot be enforced.
I turn to costs. The principal submissions in this Court were advanced by the intervening Attorneys, who do not seek costs. My present view is that there should be no order as to costs in this Court. Although Ms Corbett and Mr Gaynor have been successful, they did not have primary carriage of the argument that has been dispositive. Mr Gaynor's submissions on that issue have been rejected. Mr Gaynor had also sought to advance a suite of additional arguments which it has not been necessary to determine.
However, because the Court advised the parties at the commencement of the hearing that it would hear argument only on the threshold issue relating to diversity jurisdiction, it is possible that one or more parties might wish to be heard as to the question of costs. The orders I propose will permit that to occur, with any dispute being resolved on the papers.
The formal orders I propose are as follows. In Burns v Corbett (proceeding 2016/224875):
Reformulate question 3 referred to this Court, and answer questions 1, 2 and 3 as follows: "(a) Did the Administrative Decisions Tribunal have jurisdiction to resolve the complaint under s 49ZT Anti-Discrimination Act 1977 (NSW) made by the plaintiff against the defendant? No. (b) Did the Appeals Panel of the NSW Civil and Administrative Tribunal have jurisdiction to resolve the said complaint? No. (c) Having regard to the answers to (a) and (b), are the orders that appear in the document headed 'Judgment/Order' entered on 23 October 2015 in matter no 2014/00270109 valid and enforceable against the defendant? No."
In the event that Mr Burns or Ms Corbett seeks to contend for an order as to costs in this Court, grant leave to that party to file and serve, within 7 days of today, the order for which he or she contends, and submissions not exceeding 5 pages in support of that order, with the other party to supply submissions in reply 7 days thereafter.
Relist the matter at a time to be fixed before the primary judge for directions for the further conduct of the proceeding.
Gaynor v Burns: in each proceeding (2015/251109 and 2016/204768):
Declare that NCAT was not authorised to decide the three complaints made by Mr Burns concerning Mr Gaynor which were referred to it by the President of the Anti-Discrimination Board by letter dated 11 July 2014.
Otherwise dismiss Mr Gaynor's summons in each proceeding.
In the event that Mr Gaynor or Mr Burns seeks to contend for an order as to costs in this Court, grant leave to that party to file and serve, within 7 days of today, the order for which he or she contends, and submissions not exceeding 5 pages in support of that order, with the other party to supply submissions in reply 7 days thereafter. In 2015/251109, dismiss the appeal.