(ii) That the listing of the complaint for hearing before me on 5 and 6 May 2025 is vacated.

Jurisdiction of Tribunal - Federal matter -- Meaning of "defence".

Tasmanian Civil and Administrative Tribunal Act 2020; ss 131,

Anti-Discrimination Act 1998; ss 71, 78, 79,

Maritime Transport and Offshore Facilities Security Regulations 2003 (Cth).

Citta Hobart Pty Ltd v Cawthorn (2022) HCA 16;

Moorgate Tobacco Co Ltd V Philip Morris Ltd and anor [1980] HCA 32; (1980) 31 ALR 161;

Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367;

LNC Industries v BMW (Australia) Ltd (1983) HCA 31;

Australian Solar Mesh Sales Pty Ltd v Anderson [2000] CFA 864;

Moorgate Tobacco Company Ltd v Philip Morris Ltd [1980] HCA 32.

1. On 10 April 2025 I ordered that this complaint be transferred to the Magistrates Court pursuant to s131(2) of the Tasmanian Civil and Administrative Tribunal Act 2020, (the TASCAT Act), and that the listing for hearing of the complaint before me on 5 and 6 May 2025 be vacated. I indicated that I would deliver written reasons for so ordering. What follows are those written reasons.
2. This complaint had been listed for inquiry hearing on 5 and 6 May 2025, and the hearing allocated for me to conduct. The complaint involves an allegation that the first respondent, when it declined to employ the complainant in 2023, treated the complainant less favourably than it otherwise would have done because in 2015 he had been convicted of a certain criminal offence. The complainant's case was that this conviction was irrelevant to his proposed employment, and that by relying upon it the respondents[1] had discriminated against him on the grounds of a matter of irrelevant criminal record in contravention of s16(q) of the Anti-Discrimination Act 1998 (the AD Act).
3. The respondents' answers to this included that the conviction was not an irrelevant one, because, among other reasons, the conviction fell within a class of convictions which by virtue of the Maritime Transport and Offshore Facilities Security Regulations 2003 (Cth) ("Commonwealth Maritime Regulations") purportedly rendered him ineligible for issue of a Maritime Security and Identification Card (MISC) and Aviation Security Identification Card (ASIC), absent him obtaining waivers from the relevant authority, which at that point he had not obtained.

1. On reviewing the file papers in this matter ahead of the hearing, and upon giving consideration to the Tribunal's jurisdiction, I became concerned that by reason of this issue involving the Commonwealth Maritime Regulations, the Tribunal might not have jurisdiction because the complaint and its determination may involve a 'federal matter'. If the complaint and its determination involve[2] a 'federal matter' not 'colourably' raised, the law is clear - this Tribunal does not have jurisdiction to adjudicate such a matter - see the High Court's decision in Citta Hobart Pty Ltd v Cawthorn (2022) HCA 16. In that decision, Keifel CJ and Gageler, Keane, Gordon, Steward and Gleeson JJ in their joint judgment stated that situations where a matter will arise under a law made by the Commonwealth Parliament and so relevantly be a "federal matter" include where a law made by the Commonwealth Parliament is or has been "relied on as the source of a claim or a defence that is asserted in the course of the controversy"[3], and that reliance is not "colourable"[4].
2. I did not reach a firm view on the question of whether a federal matter had become involved, and in any event considered it appropriate to seek the views and assistance of the parties' representatives. By email dated 26 March 2025 the Tribunal wrote to the representatives for the parties raising the question and inviting them to confer and also provide written submissions by midday 9 April 2025. One of the parties requested an extension of time to deliver written submissions, leading to me listing a pre-hearing conference for 10 April 2025. On 9 April 2025, the representatives for each respective party notified the Tribunal that they were of the view that determining the complaint would require an exercise of federal jurisdiction[5], because it will require that the Commonwealth Maritime Regulations be "considered and examined in a way more than of an incidental nature [and in fact such examination] is likely to be a key consideration at the hearing", as counsel for the applicant expressed it. The applicant's counsel requested that an order be made to have the matter transferred to the Magistrates Court pursuant to s131 of the TASCAT Act. The respondents' counsel advised that his clients neither consented to nor opposed an order for transfer.
3. In the present case, my principal concern had not so much been that the complainant's claim arises under a Commonwealth law, but rather that the question is whether the respondents, when relying upon the Commonwealth Maritime Regulations to assert that the complainant's subject-matter criminal conviction in 2015 is in fact not an 'irrelevant' criminal record, are putting a 'defence' sourced in Commonwealth law. In these reasons for decision I deal with the matter on this basis.

Relevant meaning of "defence" - narrow or broad?

1. In relation to this question, the point which particularly concerned me was whether, in order to constitute a "defence" for these purposes, is it sufficient that the matter which has been raised is a potential basis for arguing that the complainant has not established all of the essential elements of his cause (broad meaning), or is it the case that "defence" means something narrower than this, and is confined to something which, even though the complainant may have established all of the essential elements of his cause, operates to nevertheless defeat the complainant's cause (narrow meaning)? For example, in editions of the Bullen & Leake pleading practice texts, the elements and defences to causes of action are broadly so divided, and likewise in various texts on tort law.
2. If the broad meaning applies, then this complaint clearly is a matter where the respondents are bringing a "defence" sourced in Commonwealth law. If however the narrow meaning applies, then on first considerations it is not so clear that the respondents are relying upon a "defence" sourced in Commonwealth law - perhaps really all that is happening is that the respondents are contending that the complainant has not established all of the essential elements of his claim, because one of the elements he must establish is that he was discriminated against on the basis of a matter of irrelevant criminal record, and the Commonwealth law means that he has not established this essential element of his claim as he has not established that the criminal conviction which he says the respondent used against him is in fact an "irrelevant" conviction.
3. It is to be noted that many cases speak of a federal matter arising when a "right or duty" is sourced in Commonwealth law. For example, in the High Court's decision in Moorgate Tobacco Co Ltd V Philip Morris Ltd and anor [1980] HCA 32; (1980) 31 ALR 161, Stephen, Mason, Aickin and Wilson JJ at p 170 stated:

The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So, too, federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds. (Emphasis added)

Although the word "matter" in s 76(ii), as we have seen, has often been translated as embracing "right", "title", "duty", "privilege", "protection", "immunity", and "defence", its content should not be confined to these terms and to what they denote. "Matter" is the subject matter for determination in a legal proceeding (Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265 ; Carter v Egg and Egg Pulp Marketing Board (Vic) [1942] HCA 30; (1942) 66 CLR 557 at 586-7); in our opinion it extends to a claim that a party satisfies or does not satisfy a statutory description, whether it be a qualification or a condition, when conformity with that description is made essential to the grant of a right for which the federal statute makes provision (emphasis added).

5. It might be thought that a matter of defence falling within the broad but not within the narrow definition of "defence" is not really a matter where the respondent or defendant is being accorded any "right" or "duty", but rather they are simply being accorded grounds for denying the complainant's cause or claim. In order to provide the respondent with a right or duty, perhaps, so the argument would run, the defence must be a defence as narrowly defined by me above.
6. However, case law seems to suggest otherwise.
7. In Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, the applicant sued for payment under a deed purportedly settling a matrimonial causes claim. The respondent defended upon the basis that the deed purported to oust the jurisdiction of a Court exercising jurisdiction under the Matrimonial Causes Act (1959-1966) (Cth), and so was void or unenforceable. The primary question was whether, even though the applicant's claim was brought under the law of contract, and so based upon common law and not arising under a Commonwealth law, the matter became a federal matter when the respondent raised his defence. The High Court, by a four to three majority held that it did. The majority judges were Barwick CJ, and McTiernan, Windeyer and Walsh JJ.
8. At pp 402-3, Justice Walsh stated:

As was pointed out in Starin v New York [1885] USSC 199; (1885) 115 US 248, at p 257 [1885] USSC 199; (29 Law Ed 388, at p 390) by Chief Justice Waite - 'The character of a case is determined by the questions involved: Osborne v Bank of the United States [1812] USSC 8; (1824) 9 Wheat 738, at p 824 [1812] USSC 8; (6 Law Ed 204, at p 224). If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the Act of 1875; otherwise not.' > > In some of its aspects the judgment in that case would not now be accepted but, in my opinion, the passage quoted provides a correct guide to the manner in which it may be determined whether or not a question of federal jurisdiction has arisen.

9. This seems to support that it is not necessary that a 'right or duty' arise out of Commonwealth law - it is sufficient if a claim, howsoever it potentially might arise, may be defeated by a Commonwealth law.
10. At p 407 Walsh J further stated:

Accordingly, by the answer which the respondents made to the applicant's claim, they must be taken to have asserted that the right given by the Act to obtain an order for maintenance was a right which, upon a consideration of the scope and policy of the Act, was seen to be a right which could not be restricted by the private agreement of the parties and that the deed on which the applicant relied did attempt to restrict that right in a manner which the statute did not permit. The applicant denied those assertions. In dealing with them it was necessary to decide not only what was the effect of the deed and what were the promises, express or implied, made by the applicant as a party to it, but also to decide whether any covenant express or implied found in the agreement amounted to an abrogation or curtailment of the right to invoke the jurisdiction of the court which was contrary to the policy and the intention of the Act. The defence raised by the respondents could not succeed unless an affirmative answer was given to that question. Likewise the applicant's claim could not succeed unless it received a negative answer.

It is not a question that is lurking in the background. It stands on the threshold. Before it could be said that the deed was void as against public policy it was necessary to decide whether or not it was saved from annihilation by the sanction of the Supreme Court. That is a question that arises under the Act, a matter of federal jurisdiction, and it is to my mind inseparably and inescapably involved in the case. It is not a question, like that in Miller v Haweis [1907] HCA 44; (1907) 5 CLR 89, which could be by-passed to determine the case.

12. In the High Court's decision in LNC Industries v BMW (Australia) Ltd (1983) HCA 31, Gibbs CJ and Mason, Wilson, Brennan Deane and Dawson JJ in their joint decision stated:

It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v Mulligan [1971] HCA 39; [1972] ALR 33; 124 CLR 367 at 374, 382, 396, 408, 416. On the other hand, a matter may arise under a law of the Parliament, although the interpretation or validity of the law is not involved: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154. The conclusion reached by Latham CJ in that case, and stated in a passage at p 154 that has often been cited with approval, is "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law". Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan (124 CLR) at 408.

13. In the Full Court of the Federal Court decision of Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864, in holding that the determination of the plaintiff's claim for breach of duty of care against its patent attorneys did involve a federal matter, Burchett J (with whom Wilcox and Tamberlin JJ agreed) quoted a number of passages from the High Court's decision in Moorgate Tobacco Company Ltd v Philip Morris Ltd [1980] HCA 32, and stated at [12]:

In one aspect, what this means is that when a federal law is pleaded in defence of a claim that in itself lay entirely within a State jurisdiction, or even though the federal law is not pleaded, when it becomes a necessary issue in the case, a change comes over the jurisdiction the court is exercising, and the matter, though originally in State jurisdiction, turns into a matter calling for the exercise of federal jurisdiction. In Ovid's Metamorphoses, the fleeing Daphne was transformed into a laurel tree as a defence against the too eager suit of Apollo. The Australian Constitution is scarcely less dramatic than the myth: upon a defendant raising a defence under federal law, or a federal issue otherwise being raised for decision, the suit itself becomes metamorphosed into a federal matter.

In the present case, I conclude that the appellant's action sought relief for the allegedly defective performance, and for negligence in the performance, of a contract of retainer aimed at the securing of a right which was the creation of federal law, namely a right to a patent for an invention. Such an action would fall within the principle stated in LNC Industries Ltd v BMW (Australia) Ltd at 581. Even if that were wrong, the action would have been transformed into an action in federal jurisdiction upon the filing of a defence raising directly the question whether the appellant had an entitlement under the Patents Act 1952 or the Patents Act 1990 (ibid at 582) (emphasis added).

15. I interpret these passages as supporting that when considering whether a matter involving a Commonwealth law constitutes a potential "defence", that term is to be accorded a broad, not narrow, meaning.

1. Returning to the matter at hand, what is before the Tribunal is a complaint for inquiry. This does not involve the issues being set out in or defined by formal pleadings. Nevertheless, the law is clear that the Tribunal is to examine what the issues are, and assess if it involves a federal matter that has not been colourably raised.
2. The respondent contends that the complainant's 2015 criminal conviction is not irrelevant due to regulations which are a law (subordinate legislation) made by the Commonwealth Parliament. Determination of whether the respondent's contention is the case appears to be going to involve, as counsel for the applicant in his email of 9 April 2025 put it, consideration and examination of the Commonwealth law "in a way more than of an incidental nature" and in fact such consideration and examination "is likely to be a key consideration at hearing". Applying the passages I have recited above, the result is that the respondent is asserting a defence arising out of a law made by the Commonwealth Parliament.
3. There is no suggestion that the respondent's raising of the matters is colourable.
4. In these circumstances I have formed the view that the Tribunal does not have jurisdiction or at least there is some doubt as to whether it has jurisdiction, because determining the matter may involve the exercise of federal jurisdiction, for the purposes of s 131(2) of the TASCAT Act.
5. As I previously mentioned, in his same email of 9 April 2025, counsel for the complainant requested an order that the complaint be transferred to the Magistrates Court pursuant to s 131(2) of the TASCAT Act. Counsel for the respondents expressed agreement with counsel for the complainant that a federal matter has been raised and that determining the complaint will involve an exercise of federal jurisdiction.
6. Taking this into account, and the views I reached myself as expressed above, and also being of the view that:

(a) the original application to the Tribunal has been made in the manner and form required under the TASCAT Act for the kind of application it is (primarily because the original application is an application to the Tribunal under its original jurisdiction and was made following a complaint under the AD Act lodged by the applicant with Equal Opportunities Tasmania ("EOT"), which EOT referred to the Tribunal under s 71(1)(c) of the AD Act (following an extension under s 78(2) of the AD Act), and as to which EOT also provided a referral report under s 79 of the AD Act);

(b) the Tribunal does not have the jurisdiction or there is some doubt as to whether it has jurisdiction, because determining the matter may involve the exercise of federal jurisdiction; and

(c) but for the emergence of the Federal legislation question, the Tribunal would have had jurisdiction to determine the complainant's complaint,

1. that pursuant to section 131(2) of the Tasmanian Civil and Administrative Tribunal Act 2020 the proceedings on the complaint are transferred to the Magistrates Court; and
2. that the listing of the complaint for hearing before me on 5 and 6 May 2025 is vacated.

[1] The second respondent is a person purportedly involved in the decision of the first respondent prospective employer to not employ the complainant.

[5] Using this expression being equivalent to asserting there is a 'federal matter' involved.