76 The last-mentioned ground would seem particularly apt for a dismissal grounded in Ministerial dissatisfaction with a particular decision of the Tribunal, or for reasons otherwise arbitrary or capricious. Moreover, there is a right, enforceable by the Supreme Court, to obtain reasons for a decision: ss 28-37. Practically speaking, a member of the Tribunal with a right to challenge suspension or dismissal before an independent Supreme Court may be in a stronger position than a Supreme Court judge faced with a hostile government which happens to control both Houses of the legislature.
77 Not only would the Minister be constrained by the potential of an order setting aside a dismissal decision but there would be the prospect of controversial litigation with all its concomitant expense, delay, discovery of embarrassing documents and publicity.
78 The second respondent relied on Henderson, but I am inclined to agree with the applicants that it has little relevance to the issue of the present case now under consideration, although it will need to be considered later. Mr Henderson owned a house which he leased to the Defence Housing Authority, a Commonwealth body. He sought the Authority's permission to inspect the premises and provision of a key for that purpose. This seemingly humdrum event provoked massive constitutional litigation. Mr Henderson asked for orders from the New South Wales Residential Tenancies Tribunal, a body established under the Residential Tenancies Act 1987 (NSW). A majority of the High Court held that the matters dealt with by the State Act did not fall within the Commonwealth's exclusive powers under s 52(ii) of the Constitution, that the State Act was not inconsistent with the Commonwealth legislation establishing the Authority, and that the principle in Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 did not prevent the valid operation of the State Act in the circumstances.
79 As a fourth alternative, the Commonwealth in Henderson argued that s 64 of the Judiciary Act did not operate to subject it to the orders sought under the State Act. Section 64 provides that in "any suit" to which the Commonwealth or a State is a party, the rights of parties shall be as nearly the same as in a suit between subject and subject. (There appears to be a misprint at 190 CLR, 429 where the arguments are summarised; "invalid" should be "valid".) While the Commonwealth argued that "suit" in s 64 refers to a suit "in a court properly invested with federal jurisdiction" (at 417), it seems the State of New South Wales did not assert the contrary. Its counsel (at 417) accepted there was no "suit in federal jurisdiction", as did Mr Henderson's (noted by Gummow J at 474). It was not necessary to decide the s 64 point.
80 There have been decisions of the Victorian Civil and Administrative Tribunal some of which hold, and others of which deny, that that body is a court. Recently Judge O'Connor of the Appeal Panel of the New South Wales Administrative Decisions Tribunal held that that body was a "court" both in the "general sense" and "in the Judiciary Act sense": Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31], [39]. His Honour analysed in detail the decision in Orellana-Fuentes. He observed at [31] that the Court of Appeal had taken a "balance sheet approach", comparing conventional attributes of a court in the Australian system with elements in the structure that deviated from the conventional attributes, many of which were plainly of a non-judicial character and did not connote the level of independence expected of a court. He found at [43] that the key factors which tipped the balance were the "significant administrative and non-judicial attributes". These are discussed in the judgement of Ipp JA in Orellana-Fuentes at [44]-[51] and notably included the conciliation function of Arbitrators, who were members of the Commission (and appointed by the Commission's President, in itself something "foreign to the notion of a court": [42]) and the reference of medical disputes to "approved medical specialists". Comparable features were not present in the body under consideration in Radio 2UE, nor are they present in the Tribunal. Indeed a feature of the Anti-Discrimination Act is the conferral of conciliation functions on the Commissioner, rather than the Tribunal, whose role, undoubtedly a judicial one, comes into play after conciliation has failed.
81 Judge O'Connor at [50] made the following point which in my opinion is equally applicable to the position of the Tribunal in Tasmania:
"The Division is the exclusive jurisdiction in New South Wales for the determination of complaints of unlawful discrimination. Its importance in the legal institutional framework of New South Wales should not be understated. It deals with a type of complaint commonly seen as involving the protection of fundamental human rights. The Parliament could have, but did not, choose to vest the jurisdiction in the traditional courts. It established a specialist jurisdiction, with special procedures and a special bench. Had the Parliament gone the other route, this present issue would not arise."
His Honour at [53] thought it would
"be a strange result if modern adjudicative functions like the Equal Opportunity Division were not seen to be 'courts' within the meaning of the Judiciary Act."
82 I conclude that the Tribunal is a court of the State of Tasmania for the purposes of receipt of federal jurisdiction.
Section 109 inconsistency
83 Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
84 A law of a State will be inconsistent with a law of the Commonwealth:
· where simultaneous obedience to both laws is impossible: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259;
· where one law takes away a right, power or authority conferred by the other law: Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 464;
· where the State law would alter, impair or detract from the operation of the Commonwealth law or the exercise of a power under the Commonwealth law: Telstra Corporation v Worthing (1999) 197 CLR 61 at 76, Victoria v Commonwealth (The Kakariki) (1937) 58 CLR 618 at 630-631, APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403 at [41]-[45]; and
· where a law of a State enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]; Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465-466; Ex parte McLean (1930) 43 CLR 472 at 483.
85 At the time of Eleanor's death she was a member of the Tasmanian Squadron of the organisation known as the Air Training Corps, which was established under s 8(1) of the Air Force Act 1923 (Cth). More recently, by an amendment to s 8(1), that body was continued in existence under a new name, the Australian Air Force Cadets (AAFC). By s 8(2) the AAFC is to consist of persons appointed in accordance with the regulations to be officers or instructors in that body and persons who volunteer and are accepted in accordance with regulations as cadets. Officers and instructors in the AAFC do not become members of the Air Force by virtue of that appointment (subs (3)). Cadets are not members of the Air Force (subs (4)). Cadets must be above such age as is prescribed (the age of twelve years and six months has been prescribed) and less than 20 years (subs (5)). They cease to be a cadet when they attain the age of 21 or such lower age as prescribed (subs (7)). Subsection (7) provides:
"The regulations may make provision for and in relation to the organization, maintenance, regulation, control and discipline of the Australian Air Force Cadets, and, in particular, for and in relation to:
(a) The periods and conditions of service of members, other than conditions of service with respect to which determinations under s 58B of the Defence Act may be made; and
(b) The promotion of members."
By subs (9), the Chief of Air Force is to administer the AAFC, subject to the Regulations, to any determinations in force under s 58 B of the Defence Act and to the directions of the Minister. The regulation making power is conferred on the Governor-General by s 9.
86 Members of the AAFC, not being members of the Australian Defence Force, are not subject to the military discipline and justice system created by the Defence Force Discipline Act 1982 (Cth) and the Defence Force Discipline Appeals Act 1955 (Cth). Provisions relating to the governance and discipline of the AAFC are to be found primarily in:
· The Cadet Forces Regulations 1977 (Cth)
· The Australian Air Force Cadets Policy Manual issued by Air Marshall A G Houston, Chief of Air Force, in the exercise of the power conferred by s 8(9) of the Air Force Act.
87 The Cadet Forces Regulations deal with the circumstances in which a cadet may be discharged from the AAFC, either at his or her request (reg 13(1)) or otherwise than on request (reg 14(2)). Regulation 14(2) provides that a member (i.e. an instructor or cadet) may be discharged for a number of reasons including;
"(a) That the member is unsuitable to be a member
(b) That the member's attendance at the activities and training program of his unit has been unsatisfactory
(c) That the member is medically unfit."
There are other reasons (d) to (g) dealing with circumstances unrelated to any failing by the cadet, e.g. where the member is enrolled in a unit at a school and has ceased to attend that school. In case of termination for reasons (a), (b) or (c) the cadet must be notified of the reasons for the intended discharge and given an opportunity to contest it: reg 14(3).
88 The Manual, in the submission of the applicants, with which I agree, comprehensively covers issues relating to the rights and responsibilities of members of the AAFC.
89 Chapter 19 of the Manual is entitled "Harassment and discrimination" and deals in considerable detail with those topics. It is said in par 2 to contain "Air Force policy applicable to the AAFC on what constitutes unacceptable behaviour, the means of dealing with incidents and the measures to be taken to make members of the AAFC aware of this policy". Paragraph 5 of Ch 19 provides that incidents should be resolved between individuals involved or through a process of conflict resolution wherever possible. Assistance should be provided from "outside the group or unit where this is likely to be helpful". Other unacceptable behaviour "of a more serious nature will result in administrative or disciplinary action or charges under either civil or criminal law".
90 Paragraph 10 of Ch 19 states that the AAFC is committed to eliminating discriminatory practices. Paragraph 12 provides that sexual offences are not to be investigated within the AAFC. Any allegations of sexual offences are to be referred to the appropriate civil authority. Paragraph 25 also provides that incidents involving sexual offences involving a minor must be reported to the police and relevant State authority. Each Regional Liaison Officer (RLO) is to seek legal advice on the requirement under State legislation to comply with the provisions of mandatory reporting of suspected physical or sexual abuse and inform their OOC/IOCs of their duty of care to comply with any requirements".
91 Paragraph 29 of Ch 19 provides (emphasis in original):
"Where all efforts to resolve a conflict internally have failed or the complainant cannot confront the issue internally then they [sic] have the right to use other avenues of complaint as detailed below:
(a) The police or other State authority. If a member does not believe the chain of command is appropriate or the situation requires urgent action, then the police or relevant State authority may be contacted. Where minors are involved State legislation is to be adhered to.
(b) The Ombudsman. In some circumstances a member may have grounds for not wishing to complain to any authority within the chain of command or to state service agencies. The Ombudsman may accept the complaint for investigation, if satisfied that it is appropriate to do so.
(c) The Human Rights and Equal Opportunity Commission. Members also have the right to refer the matter to the Human Rights and Equal Opportunity Commission (HREOC), although this avenue may not satisfy the immediate requirement of stopping the harassment or discriminatory practice, and acting against the offender in a timely manner. Further information can be obtained from the website www.humanrights.gov.au."
92 Paragraph 34 of Ch 19 provides:
"Sexual harassment and other forms of discrimination may be unlawful and result in civil action under the relevant Discrimination Act. Sexual offences may result in criminal proceedings. A member is to be assisted to report any allegation of sexual assault to civil police and various State authorities as required by law within that State and offered counselling support without delay."
93 The applicants submitted that "the provisions of s 8 of the Air Force Act (particularly s 8(9)) and the Regulations deal in a comprehensive manner with the employment, dismissal and discipline of members (including officers and instructors) of the AAFC". They provide, it was said, detailed procedures for addressing grievances, including discrimination, by utilizing the military chain of command. It was put that those procedures do not contemplate, and leave no room for, the operation of, "an alternative layer of regulation arising under State anti-discrimination law". Section 8 and the Regulations, it was said, can be seen to express the Commonwealth Parliament's intention to regulate exhaustively and exclusively the relationship between the Commonwealth and members of the AAFC and the relationship amongst members of the AAFC. They cover the field and the Anti-Discrimination Act, to the extent that it attempts to enter that field, can have no valid operation.
94 In The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563 Mason J said:
"…a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with the Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law."
95 The present case, in my opinion, is an example of the principle of which Mason J speaks. The applicants' focus on s 8(9) of the Air Force Act draws particular attention to the Manual, issued by the Chief of Air Force in the course of exercising his statutory power and duty to administer the AAFC. The exercise of that power and duty is of course subject, amongst other things, to the Cadet Forces Regulations. But the Regulations themselves, relevantly for present purposes, do not go beyond the specific grounds available for discharge and the procedure to be followed in relation thereto. Plainly the legislators, including those who made the Regulations, contemplated that the vast bulk of other administrative provisions essential for the conduct of the AAFC would be left to the Chief of Air Force in the exercise of his power and duty under s 8(9).
96 The Manual, as has been seen, is replete with express references to State authorities and State laws (and also Commonwealth authorities, the Ombudsman and the Human Rights and Equal Opportunity Commission, entirely unconnected with the Air Force). This is hardly surprising. Cadets are not members of the Australian Defence Force. Although they engage in activities and training of a military kind, they do not undertake the obligations and restrictions of military life. Since cadets may be thirteen or even younger, children in the most literal sense, the AAFC is, as is said in Ch 19 par 6 of the Manual, in loco parentis with respect to those who are minors. Discrimination, sexual harassment and like conduct have only become the subject of legislative attention in the last few decades. It can give rise to difficult and delicate problems, especially where children and young people are concerned in activities with older instructors. It is not an area in which the military is perceived to have any special expertise.
97 The present case is the polar opposite of the kind of situation dealt with in Australian Mutual Provident Society v Goulden (1986) 160 CLR 330, discussed in APLA at [42]-[43]. In Goulden the High Court held that the Life Insurance Act 1945 (Cth) made detailed provision for supervising and regulating the statutory funds of life insurers, including the classification of risks and the setting of premiums. It would "alter, impair or detract from" the Commonwealth scheme if a registered life company were prevented by State anti-discrimination legislation from classifying different risks differently or for setting different premiums for different risks. In the present case, there is no intention manifested by the Air Force Act or the Regulations to create a scheme to deal exclusively within the AAFC with discriminatory conduct involving cadets. As was submitted by the second respondent, the Manual, far from being a comprehensive code, is predicated on the continuing operation and availability of State legal regimes as part of a bed of underlying law.
98 The applicants relied on Dao v Australian Postal Commission (1987) 162 CLR 317. Section 42(1) of the Postal Services Act 1975 (Cth) gave the Commission power to appoint persons as officers for the purposes of the Act. Section 42(2) provided that a person should not be appointed unless the Commission was satisfied, after the person had undergone a medical examination required by the Commission, as to his health and physical fitness and that he possessed such educational qualifications, or met such other requirements (if any) as were required by the Commission. The Commission dismissed Ms Dao and the other appellant from temporary employment, and refused them permanent employment, because in their medical examinations they failed to attain a specified minimum body weight determined by reference to their height and sex according to a scale prepared and used by the Commonwealth Department of Health. The Commission determined on this basis that they did not possess the standard of physical fitness required. The appellants complained before the New South Wales Equal Opportunity Tribunal that they had been discriminated against on the ground of their sex, contrary to s 25(1) of the Anti-Discrimination Act 1977 (NSW). The High Court held that the ss 25 and 113 of the State Act (which empowered the Tribunal to award damages and reinstatement) would result in "a clear usurpation … of the responsibility resting on the Commission under the Commonwealth Act" and were "clearly in collision with s 42 … and must therefore, by force of s 109 of the Constitution, give way." (at 335). Their Honours cited the statement of Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260:
"If, according to the true construction of the Commonwealth law, the right is absolute, then inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)."
99 If the present case were concerned with a complaint under the Anti-Discrimination Act about the discharge of a cadet under reg 14 (2) (a), (b) or (c) it might be said that there was a direct collision between State and Commonwealth law of the kind that occurred in Dao. However, Ms Campbell's case is not directed at any exercise of the power of discharge. It does not trespass on that confined area of Commonwealth statutory power. By stipulating the grounds on which, and the procedure by which, cadets may be discharged the Commonwealth did not evince an intention to exclude generally the operation of a Tasmanian law outlawing discriminatory conduct in the areas of activity specified in s 22(1), and particularly education and training; cf the discussion of Wardley in Dao at 336.
100 In any case, it is difficult to see how Ms Campbell's complaint on her own behalf is affected by any provision of the Air Force Act or the Cadet Forces Regulations.