Johnson v Dibbin; Gatsby v Gatsby

Background to the Appeals and the Separate Questions

Johnson v Dibbin

1. On 13 December 2014, Ms Johnson, as tenant, and Ms Dibbin, as landlord, entered into a six month residential tenancy agreement for premises at Banora Point, just south of Tweed Heads in northern New South Wales. Ms Johnson paid the required rental bond and went into occupation. On 15 June 2015, Ms Johnson vacated the premises in response to a termination notice served by Ms Dibbin.
2. On 25 June 2015, Ms Dibbin applied to the Tribunal, in proceedings RT15/41349 (the Dibbin matter), for an order under s 175 of the RT Act that the rental bond be paid to her. This was to cover, in part, the cost of repairing damage and cleaning. Ms Dibbin also sought compensation for damage, cleaning expenses or repairs in excess of the amount of the rental bond. The Tribunal may make an order for compensation under s 187(1)(d), for example, in an application under s 190 of the RT Act.
3. On 15 July 2015, Ms Johnson applied, in separate proceedings RT15/44353 (the Johnson matter), for repayment of rent under s 45 of the RT Act because the premises were uninhabitable due to "serious mould", an order under s 187(1)(d) for compensation for mould damage to possessions and for "cat injury due to property" as well as a "full bond refund", which can be ordered under s 175.
4. At the time of both applications, Ms Johnson resided in Queensland and Ms Dibbin resided in New South Wales.
5. On 21 September 2015, the two applications were heard together. The decision and reasons, dealing with both applications, were given on 19 November 2015. The orders were: "1. The tenant's application [RT15/44353] is dismissed. 2. The tenant is to pay the landlord the sum of $4,400.00 immediately. 3. The rental bond board is to pay the landlord the whole bond moneys on bond number P160833-5. Any amount received is to be credited against the money order."
6. On 11 December 2015, Ms Johnson filed a notice of appeal (AP15/66120) against the Tribunal's decision in both proceedings RT15/44353 and RT15/41349.
7. At the hearing of the appeal on 6 April 2016, the Appeal Panel, constituted by Principal Member David Patten and Senior Member Sabine Thode, raised the issue of whether the Tribunal had authority to hear and determine the proceedings as they appeared to involve the exercise of federal judicial power. Consequently, the Appeal Panel reserved its decision, noting that a preliminary jurisdictional issue had arisen and called for further submissions. Further, the Appeal Panel caused a registry officer to write, on 19 April 2016, to the parties in the following terms: "I refer to the proceedings before the Appeal Panel on 6 April 2016. Noting that Ms Johnson lives in Queensland and was so living when these proceedings were commenced and that according to documents filed Ms Dibbin resides in NSW the Panel raised the question whether it has jurisdiction to hear the appeal having regard to section 75(iv) of the Commonwealth Constitution and the fact that the proceedings are between residents of different states. This Federal jurisdiction can only be exercised by a Federal Court or by a State Court properly so called and it is considered that the Civil and Administrative Tribunal would be held not to be a court for that purpose. The effect of this would be that the Tribunal has no jurisdiction to make any order in the dispute between you both. At the hearing on 6 April 2016 the Appeal Panel reserved its decision on the constitutional question. You are now both invited to make within 21 days such submissions as you wish to make on the question. You should also be aware that there are other proceedings in the Tribunal where the same issue is raised. That case is next before the Tribunal for directions on 9 May 2016. What is proposed is that subject to any submissions you make, the jurisdictional issue in your case will be decided upon the papers but probably not until after the decision in the other case for the practical reason that in the other case the parties are represented by counsel and it is possible that the Attorney General will intervene. Please advise if you would like further clarification of the matter."
8. On 10 May 2016, Ms Johnson provided a number of written submissions to the Tribunal.
9. On 18 May 2016, Ms Johnson's appeal, together with the Gatsby v Gatsby appeal (AP15/67274) and the Burns v Gaynor appeal (AP15/62110), was listed for directions before the President. This was because, in each of those other appeals, substantially the same issue concerning proceedings between residents of different States arose. The only significant difference was that the first instance proceedings in Burns v Gaynor were based on alleged contraventions of the Anti-Discrimination Act 1977 (NSW) not on the RT Act. In this way, the Appeal Panel came to deal with the Johnson appeal, the Gatsby appeal and Burns v Gaynor at the same time.

Gatsby v Gatsby

1. From at least 2015, Ms Deva Gatsby resided in premises at Terranora, just south of the Queensland border, in New South Wales. The premises were owned by her mother, Ms Berri Gatsby. On about 27 May 2015, Ms Berri Gatsby sent to her daughter, by post, a notice of termination of a residential tenancy agreement. Ms Berri Gatsby then lodged an application, RT15/56639, (the Gatsby matter) seeking a termination order for non-payment of rent and an order for possession of the premises. Termination can be ordered under s 87 of the RT Act, if the tenant has breached the residential tenancy agreement, for example, by not paying rent. When a termination order is made, s 83 of the RT Act requires that the Tribunal also make an order for possession of the premises.
2. Ms Deva Gatsby opposed the making of the orders and contended that her mother had given her the premises and that there was, in fact, no residential tenancy agreement falling within the operation of the RT Act.
3. At the time the application was made, Ms Berri Gatsby resided in Queensland and Ms Deva Gatsby resided in New South Wales.
4. On 30 November 2015, the matter was heard and the following orders made, accompanied by written reasons: "1. The Residential Tenancy Agreement is terminated in accordance with: •s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. •failure to pay rent in accordance with agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 29-Feb-2016"
5. On 17 December 2015, Ms Deva Gatsby filed a notice of appeal, AP15/67274. One of the grounds of appeal appeared to be that the Tribunal erred in finding that there was a residential tenancy agreement and therefore the Tribunal was not empowered to make the orders that it did.
6. On 2 May 2016, the issue of whether the Tribunal had authority to hear and determine the matter the subject of the appeal was raised and the Appeal Panel, constituted by Senior Member John Harris SC and Senior Member Sabine Thode, adjourned the appeal for further directions on 9 May 2016. In addition, the Appeal Panel expressly noted that: "it was not in dispute that: (a) the residential address of the appellant was at the time of the Application in RT 15/56639 and is [XX] Terranora NSW 2486, and (b) the residential address of the respondent was at the time of the Application in RT 15/56639 and is [XX] Palm Beach Qld 4221."
7. On 4 May 2016, the Divisional Registrar wrote to the parties to the Gatsby appeal as follows: "In these proceedings, a significant but difficult legal question has arisen as to whether the Tribunal has the power to deal with your case. The Principal Registrar has written to the Minister for Innovation and Better Regulation, as the Minister responsible for the administration of the Residential Tenancies Act 2010 (NSW), and sent a copy of that letter to the Attorney General, to inform them of the potential problem. A copy of that letter will be sent to you as well. As you are aware, your case has been listed for a directions hearing at 9:15am on Monday 9 May 2016. As this is too soon to allow the Minister and the Attorney General to consider their positions, this directions hearing has been cancelled and you do not have to attend by telephone or in person on 9 May 2016. Your case has been listed for further directions at 9:30am on Wednesday 18 May 2016 so that the Minister and the Attorney General can, if they wish, intervene in the proceedings with a view to having the problem resolved. If you wish, you can attend the directions hearing on 18 May 2016. Alternatively, if you wish to wait for the problem to be resolved and not take part in this aspect of the case, you can do so. If you do not appear on 18 May 2016, the Tribunal will not dismiss your case because you failed to attend but will proceed on the basis that you do not wish to take part in this aspect of the case. The Tribunal will keep you informed of the progress of the case, after 18 May 2016."
8. In this way, the Gatsby appeal came to be listed on 18 May 2016, at the same time as the Johnson appeal and the Burns v Gaynor appeal.

The Johnson appeal and the Gatsby appeal in NCAT and Burns v Corbett; Burns v Gaynor in the Court of Appeal

1. On 18 May 2016, the Solicitor General appeared at the directions hearing on behalf of the Attorney General in order to intervene, under s 44(4) of the NCAT Act, in the Johnson appeal, the Gatsby appeal and Burns v Gaynor. The Appeal Panel ordered that the Attorney General be joined as a party in each of the three appeals. It also stood the appeals over for a week to allow the Attorney General to consider her position.
2. On 25 May 2016, the solicitor for Mr Gaynor, the respondent in Burns v Gaynor, indicated that he proposed to file a summons in the Supreme Court seeking a declaration that the Tribunal (including the Appeal Panel) did not have jurisdiction to hear and determine proceedings involving a matter between residents of different States. In these circumstances, the three appeals were stood over to 22 June 2016 to allow this to occur.
3. On 22 June 2016, since Mr Gaynor had instituted the foreshadowed proceedings in the Supreme Court, the Appeal Panel stood the three appeals over for further directions and listing for hearing, if appropriate, on 25 October 2016.
4. Mr Gaynor's application in the Supreme Court was eventually heard by the Court of Appeal on 30 November 2016, at the same time as another matter in the Supreme Court involving Mr Burns and a Ms Corbett.
5. As the Appeal Panel and the parties in the three NCAT appeals were awaiting the outcome of the proceedings in the Court of Appeal, the NCAT appeals were stood over to 14 February 2017.
6. On 3 February 2017, the Court of Appeal handed down its decision in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (Burns v Corbett).
7. Because the parties and the interveners agreed for the purpose of those cases that NCAT was not a "court of a State", the Court did not lay down any legal rule concerning that issue: Burns v Corbett at [29]. As Gleeson CJ said in Coleman v Power (2004) 220 CLR 1 at [79]; [2004] HCA 39: "The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia. Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues. Because of the concession, the present case, for example, can be an authority only for a limited rule of constitutional law."
8. Nor, in those cases, was the Court of Appeal required to consider whether the Tribunal was exercising judicial power in determining proceedings under the RT Act.
9. In order for the significance of the Court of Appeal's decision to be considered and to clarify whether there would be an application for special leave to appeal to the High Court from the Court of Appeal's decision and the extent of any special leave that may be granted, the three appeals in the Tribunal were stood over, eventually to 18 July 2017.
10. On 18 July 2017, the Appeal Panel ordered, in both the Johnson and the Gatsby appeals, that: "1. The questions of whether the Tribunal had authority to hear and determine the matters: (a) on the basis that it is exercising executive and not judicial power when it determines the matters under the [RT Act]; or (b) on the basis that the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth), be determined separately and before each appeal is otherwise heard."
11. At that time, the Appeal Panel also formally noted that it proposed to approach the New South Wales Bar Association to request that the Association assist the Tribunal by nominating counsel to make submissions as a contradictor in the two appeals on a pro bono basis. As a result of that approach, the Appeal Panel received the very considerable assistance of written and oral submissions by Mr Kennett of Senior Counsel and Ms Winnett, instructed by Ms Lim, solicitor.
12. In September 2017, Pt 3A (ss 34A to 34D) was introduced into the NCAT Act by the Justice Legislation Amendment Act (No 2) 2017 (NSW) to remedy the perceived wider problem arising out of Burns v Corbett. The effect of Pt 3A is to allow the District Court or the Local Court to determine matters between residents of different States if they could otherwise be determined by the Tribunal but cannot be to the extent the Tribunal cannot exercise federal judicial power - see ss 34B and 34C and, in particular, ss 34B(2) and s 34C(3).

Lack of significance of Pt 3A of the NCAT Act for the present appeals

1. Neither the Solicitor General nor any party nor the contradictor referred to or relied on Pt 3A of the NCAT Act in relation to either of the separate questions (a) or (b). We think this approach is correct. Nonetheless, for the sake of completeness we make the following brief observations here.
2. The need for Pt 3A arises only if Burns v Corbett lays down the general legal rule that NCAT is not a "court of a State" and consequently cannot exercise federal judicial power. As we have explained above, Burns v Corbett does not lay down any such general rule. Further, Pt 3A does not have a role to play if the Tribunal is not required to exercise judicial power in resolving a matter. As a result, if either separate question (a) or (b) should be answered "yes", Pt 3A will be unnecessary and the Tribunal will be able to determine matters under the RT Act between residents of different States.
3. Finally, Pt 3A does not relate to the nature, functions or processes of the Tribunal or the extent to which NCAT meets the requirements for a Ch III court. Consequently, consideration of its provisions provides no significant assistance in answering either of the separate questions.

The hearing on 22 November 2017

1. At the hearing on 22 November 2017, Ms Johnson appeared by telephone. None of Ms Deva Gatsby, Ms Berri Gatsby or Ms Dibbin, appeared in person or could be contacted on the telephone numbers available to the Tribunal. The Solicitor General, with Mr Pulsford, appeared for the Attorney General, intervening. Mr Kennett SC, with Ms Winnett, appeared and made submissions as contradictor.
2. Given the nature and importance of the questions to be considered at the hearing and the fact that all parties were aware of the issues and written submissions and had been given notice of the hearing date, the Appeal Panel considered it appropriate to proceed with the hearing in the absence of Ms Deva Gatsby, Ms Berri Gatsby and Ms Dibbin.
3. In the light of submissions received before the hearing on 22 November 2017, the Appeal Panel ordered, at the commencement of the hearing, that the form of the separate questions be amended so that they were as follows: "1. Prior to the appeal in matter AP15/66120 [the Johnson appeal] otherwise being heard, the following questions are to be separately determined: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/41349 and RT 15/44353: (a) because in doing so it was exercising administrative and not judicial power? (b) if the answer to question (a) is "no", because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?" and "1. Prior to the appeal in matter AP15/67274 [the Gatsby appeal] otherwise being heard, the following questions are to be separately determined: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/56639: (a) because in doing so it was exercising administrative and not judicial power? (b) if the answer to question (a) is "no", because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)."

Constitutional background

1. For present purposes, the relevant constitutional background to the questions that are to be addressed is contained in Leeming JA's judgment in Burns v Corbett [2017] NSWCA 3 at [9] to [28], with which the Chief Justice and the President of the Court of Appeal agreed at [1] and [2] respectively. It is unnecessary to repeat it here.

Question (a) - Was the Tribunal exercising administrative or judicial power when determining proceedings under the RT Act?

1. Question (a) in each appeal concerns whether the Tribunal when determining the Johnson, Dibbin and Gatsby matters was exercising judicial or administrative (or executive) power. Each of those matters arose under the RT Act.
2. We have concluded that the Tribunal, when dealing with matters under the RT Act, is exercising judicial power on two independent but related bases. The first is that, having regard to the principles concerning judicial power, the general nature of the Tribunal and the functions performed by the Tribunal under the RT Act, the Tribunal is exercising judicial power. The second relies on authority which establishes that when powers under the RT Act are exercised by a body that is a court, that body is exercising judicial power. We shall deal with each in turn.

First Basis - Judicial power, the general nature of the Tribunal and its functions under the RT Act

1. Consideration of whether the Tribunal is exercising judicial power when performing functions under the RT Act requires us to address: (i) the nature of judicial power and when judicial power is being exercised; (ii) the general nature and functions of the Tribunal; and, (iii) the Tribunal's powers and functions under the RT Act, especially in the particular matters relevant to the present appeals.

Judicial power

1. There was no significant contest before us as to the principles concerning judicial power and when it is being exercised.
2. At the outset, when considering the nature of judicial power and how it is to be distinguished from executive or administrative power, it should be acknowledged that it has proved difficult, if not impossible, to frame an exclusive and exhaustive definition of judicial power, as explained in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-9; [1991] HCA 58 (Precision Data). Nonetheless, relevant principles have been established in the authorities and can be applied by general reasoning to the circumstances of particular cases - The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373; [1970] HCA 8 (Tasmanian Breweries). In addition, sufficient justification, or further support, for the conclusion that the power is judicial may also be found in: 1. analogy with an admittedly judicial function - Tasmanian Breweries at 373 and Cominos v Cominos (1972) 127 CLR 588 at 607; [1972] HCA 54 (Cominos); and 2. history - Tasmanian Breweries at 373 and 387.
3. At the level of general principle, the essential character of judicial power, especially in the context of the judicial power of the Commonwealth, stems from the unique and essential function that judicial power performs by "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion" - Rizeq v Western Australia [2017] HCA 23 at [52]; 91 ALJR 707 (Rizeq) (footnotes omitted).
4. The quelling of controversies in the exercise of judicial power involves "a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons" - Tasmanian Breweries at 374, consistently accepted by the High Court subsequently (see for example TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533 at [27]; [2013] HCA 5 (TCL); Palmer v Ayres [2017] HCA 5 at [72]).
5. A second dimension of judicial power concerns the process by which the function is exercised, namely an open public enquiry (unless the subject matter necessitates exception) and the observance of the rules of procedural fairness - TCL at [27], and see Precision Data at 189. Taking this somewhat further, Kitto J elaborated upon the process and the end required for the exercise of judicial power in Tasmanian Breweries, at 374-5, as follows: "the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified."
6. Thus, not only is an open, public and procedurally fair process generally required for the exercise of judicial power: 1. the process must be one which involves the application of the relevant law to the facts as found; and, 2. there must be an end or result, which, so long as it stands, entitles and obliges the persons whose controversy has been quelled to observe the rights and obligations so determined.
7. When considering whether the process involves the application of the law to the facts, it is important to bear in mind that legal tests or outcomes often involve an element of discretion. The exercise of a discretion in the quelling of controversies does not mean that the power being exercised is not judicial power. Kitto J quoted in Tasmanian Breweries (at 377) the following passage from The Queen v Spicer; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR 312 at 317 (WWF): "The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards."
8. Administrative policy, as opposed to judicial discretion, can be seen as being involved where the considerations are "of general policy and expediency alien to the judicial method", to adopt the language of Kitto J in The Queen v Spicer, Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 305 (BLF). It must, however, also be acknowledged that the application of public interest criteria has a long history as part of the judicial function and the intrusion of policy considerations in decision-making does not necessarily negative the exercise of judicial power or deprive a tribunal of the character of a court - K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501 at [82]; [2009] HCA 4 (K-Generation).
9. Mason J (as he then was) observed in Cominos at 608: "It is not an objection to the judicial character of a power that its exercise is not a mere matter of applying a formula to the facts as found, and that it involves the court in making a judgment after taking into account and evaluating a number of considerations. The making of orders under the testator's family maintenance legislation is an example of a function not essentially dissimilar [from the awarding of maintenance in matrimonial proceedings] which has always been regarded as judicial."
10. The end or result which flows from the exercise of judicial power was described in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 as "a binding and authoritative decision". Indeed, the enforceability of decisions given in the exercise of judicial power may serve to characterise a function as judicial when it is otherwise equivocal - Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268; [1995] HCA 10 (Brandy). Furthermore, "where a tribunal is able to give a binding and authoritative decision and is able to take action to enforce that decision, 'all the attributes of judicial power are plainly present'" - Brandy at 268-9.
11. Nonetheless, it is not essential to the exercise of judicial power that a tribunal should be called upon to execute its own decision - Brandy at 269. A decision of the Human Rights and Equal Opportunity Commission that became binding and enforceable only upon registration in the Federal Court was held to be made in the exercise of judicial power - Brandy at 270-1. Similarly, an order of a court of petty sessions for the payment of money was made in the exercise of judicial power even though execution of such an order was by means of a warrant granted by a justice of the peace as an independent administrative act - The Queen v Davison (1954) 90 CLR 353 at 368.
12. Yet another dimension of the exercise of judicial power, especially federal judicial power, is the overriding necessity for the function always to be compatible with the essential character of a court as an institution that is, and is seen to be, both impartial between the parties and independent of the parties and of other branches of government in the exercise of the decision-making functions conferred on it - TCL at [27].
13. The second and third dimensions appear to be what underlies the proposition, in Precision Data at 189, that a function may be judicial or administrative depending on the way in which it is to be exercised.
14. Finally, in this context it can be noted that Deane, Dawson, Gaudron and McHugh JJ observed in Brandy at 267: "Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not. These difficulties were recognized by the Court in [Precision Data at 188-9]: 'The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.' One is tempted to say that, in the end, judicial power is the power exercised by courts and can only be defined by reference to what courts do and the way in which they do it, rather than by recourse to any other classification of functions. But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive."
15. In the light of these principles, we turn to consider the general nature and functions of the Tribunal.

The general nature and functions of the Tribunal

1. The intention of the New South Wales Parliament as to the general nature of the body it created by enacting the NCAT Act is to be discerned by the proper construction of the Act. While the Act must be read as a whole, it is useful to start with the objects set out in s 3.
2. The objects stated in s 3 of the NCAT Act indicate that the Parliament intended to create a body that is: 1. "independent" - s 3(a); 2. first a "Civil" and secondly an "Administrative" decision making body - s 3(a); 3. able primarily to "make decisions as the primary-decision maker" in relation to certain "matters" - s 3(b)(i). These include, relevantly for present purposes, matters under the RT Act; 4. to "resolve the real issues in proceedings justly, quickly and cheaply with as little formality as possible" - s 3(d); 5. to make decisions that are "timely, fair, consistent and of a high quality" - s3(e); 6. to be "accountable and [have] processes that are open and transparent" - s3(f); and 7. to operate so as to promote "public confidence in tribunal decision-making … and in the conduct of tribunal members" - s 3(g).
3. To be an independent, civil decision making body whose decisions are required to be just, as well as quick, cheap, timely, fair, consistent and of high quality and whose processes are to be open and transparent and constrained by as little formality as possible can be seen as proper aims of every court exercising civil jurisdiction in New South Wales. The objects of the NCAT Act do not in any way suggest that the Parliament intended the Tribunal to be an emanation of the executive arm of government or some other form of non-judicial body. Nor do they provide any warrant for assuming that the Tribunal is a body whose decisions are not required in every case to be in accordance with law, whose processes are not required in every case to be just and fair or whose members and decision making are not required in every case to be independent and impartial.
4. As required by s 33 of the Interpretation Act 1987 (NSW), a construction of the other provisions of the NCAT Act that would promote these objects is to be preferred to a construction that would not.
5. The other provisions of the NCAT Act are, in our view, consistent with, and promote, the objects in s 3. Those provisions confirm that the Tribunal is required to act in a judicial manner by judicial processes. Nothing in the NCAT Act is incompatible with the essential character of a court as an institution that is, and is seen to be, both impartial between the parties and independent of the parties and of other branches of government in the exercise of the decision-making functions conferred on it.
6. In particular, we note the following: 1. The Tribunal has a Rule Committee, established by s 24 of the NCAT Act, which has made the Civil and Administrative Tribunal Rules 2014. The Tribunal is thus able to prescribe and regulate its practice and procedure in the same manner as superior and inferior courts with similar committees. 2. The NCAT Act confers on the Tribunal "jurisdiction", in the sense of authority to decide, in respect of "matters" in "proceedings" which are instituted by way of an "application" or "appeal" between "parties" - see, for example, ss 28(1) and (3), 29(2) and (4), 32(5) and 44. Where it is "necessary in the interests of justice", these applications and appeals and other documents may be amended - s 53. Procedural irregularities do not nullify proceedings and may be cured by order of the Tribunal - s 53(3) and (4). This language and these provisions bespeak a clear legislative intention that the Tribunal should act in accordance with processes that are judicial in description and nature and should keep an accurate record of its proceedings. 3. The specific types of "jurisdiction" conferred on the Tribunal are set out in ss 29 to 33 of the NCAT Act. They are predominantly judicial not administrative in nature. They are: 1. "general jurisdiction", which is the authority to make decisions in a "matter" where legislation other than the NCAT legislation enables the Tribunal to make decisions in respect of that "matter" and the "matter" does not fall within the Tribunal's other types of jurisdiction - s 29. Relevantly, the Tribunal exercises general jurisdiction when dealing with matters under the RT Act; 2. "administrative review jurisdiction", which is the authority to make decisions in the circumstances provided in s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and in accordance with that Act - s 30. This jurisdiction involves the exercise of executive or administrative power but it only accounts typically for between 1 and 2% of proceedings in the Tribunal. (The data supporting this statement, taken from the NCAT Annual Report, is set out in Appendix 1 to these reasons); 3. "external appeal jurisdiction", which is the authority to make decisions in respect of decisions of an external (that is, external to the Tribunal) decision maker if legislation provides that an appeal may be made to the Tribunal against any such decision - s 31; 4. "internal appeal jurisdiction", which is the authority to make decisions, in accordance with ss 80 and 81 of the NCAT Act, in respect of decisions of the Tribunal determining a matter over which the Tribunal has general or an administrative review jurisdiction (subject to the exceptions in s 32(3) and the Division Schedules of the NCAT Act) - s 32 (and s 17(3)); 5. "enforcement jurisdiction", which is the authority to make decisions when dealing with contempt of the Tribunal, in accordance with s 73 of the NCAT Act, or with an application under s 77 for a contravention of a civil penalty provision of the NCAT Act - s 33. 1. Section 36 of the NCAT Act reflects the object in s 3(d) and requires the Tribunal to seek to give effect to the "guiding principle", which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". This same wording is used in s 56(1) of the Civil Procedure Act 2005 (NSW) (CP Act) to describe the "overriding purpose" of that Act and the rules of court, applicable in the New South Wales courts specified under s 4 of the CP Act. The use of the same wording in both the CP Act and the NCAT Act indicates that the Parliament intended the Tribunal to be held to the same standards of justice, speed and efficiency as the courts of this State. In relation to the first element of the guiding principle, a "just" resolution in this context is to be understood as one that is reached in accordance with the principles of natural justice - with an independent and impartial decision maker and a procedurally fair hearing process - and that is also in accordance with law and results from applying the law to the facts as found rationally based on the evidence. 2. The Tribunal is to conduct proceedings in accordance with the rules of natural justice - s 38(2) and (5)(c) - and by way of "hearings" that are "open to the public", subject to exceptions in appropriate cases - ss 49 and 50. 3. Consistently with being a court, the Tribunal can "reserve" its decision - s 56. Decisions of the Tribunal, when members of a multi-member panel are not in full agreement, are to be determined in accordance with s 57 which provides, in summary: questions of law are determined by a majority of the legally qualified Members; and questions of fact by a majority of all Members. The actual application of s 57 in any specific case depends on the particular constitution of the panel. 4. The Tribunal has both a general power to award costs if there are "special circumstances" under s 60(2), and an unfettered power to award costs in various types of matters prescribed in the NCAT Rules, the Division Schedules of the NCAT Act or enabling legislation - see for example, rr 38 and 38A of the NCAT Rules, cl 23 of Sch 5 to the NCAT Act and cl 13 of Sch 5D to the Health Practitioner Regulation National Law (the National Law) (noting s 17(3) and s 35 of the NCAT Act); 5. The Tribunal must give a written statement of reasons, on request by a party, if a written statement has not already been given, setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, the Tribunal's understanding of the applicable law and the reasoning processes that led the Tribunal to its conclusions - s 62(2) and (3). This is subject to provisions in the Division Schedules to the NCAT Act, such as cl 11 of Sch 6, and enabling legislation, for example s 165M of the National Law, which also require the giving of written reasons. In addition, there is a general duty to give reasons, oral or written - Collins v Urban [2014] NSWCATAP 17 at [44] to [64]; 6. The Tribunal has the power to correct the record of decisions and reasons in the case of obvious error - s 63; 7. The Tribunal's orders are final, subject to the provisions concerning appeals and stays (see ss 80 and 43(3) of the NCAT Act), judicial review (s 69 of the Supreme Court Act 1970 (NSW)) and similar provisions which allow decisions to be set aside in limited circumstances where the interests of justice so require. They are also binding and enforceable. These follow from the following: 1. non-compliance, without lawful or reasonable excuse, is either an offence under s 72(1) of the NCAT Act or a contravention of s 72(3) which the Tribunal can punish by the imposition of a civil penalty under s 77; 2. non-compliance with a Tribunal order can amount to contempt of the Tribunal by operation of s 73(2) of the NCAT Act and a person who does not comply is liable to be dealt with for contempt under s 73(5) and (6); 3. money orders can be enforced as judgment debts by registration in the registry of an appropriate court under s 78 (see also s 97E of the Community Land Management Act 1989 (NSW) and cl 13(3) of Sch 5 to the National Law for other enforcement mechanisms for orders involving the payment of money); and 4. in the case of possession orders under the RT Act, these can be enforced by the issue of warrant for possession under s 121 of the RT Act; 1. the Tribunal's non-interlocutory decisions can be appealed as of right on a question of law either to the Appeal Panel, the Supreme Court or (in very limited cases) another court - ss 32, 80(2)(b), 82-83 and the special appeal provisions in the Division Schedules, Schs 3, 4, 5 and 6 to the NCAT Act, and in enabling legislation. Interlocutory decisions of the Tribunal can generally be appealed by leave to the Appeal Panel - s 80(2)(a) - and in other cases by leave on a question of law to the Supreme or another court - ss 82-83 and the special appeal provisions referred to earlier.
7. These provisions are all consistent with the Tribunal's processes being judicial in nature. They do not suggest that a Parliamentary intention that the Tribunal act in a manner that is less than fully judicial or that its decisions should have less than judicial consequences. The Tribunal meets the description, in Brandy at 268-9, of "a tribunal [that] is able to give a binding and authoritative decision and is able to take action to enforce that decision" and thus the conclusion follows that "all the attributes of judicial power are plainly present".
8. The Solicitor General, however, contended that the following were aspects of the NCAT Act that told against the Tribunal exercising judicial power: 1. The lack of enforceability and finality of non-monetary orders; 2. The Tribunal not being required to determine matters in accordance with law; 3. The Tribunal not being bound by the rules of evidence; 4. The lack of a right to legal representation in the Tribunal; 5. The possibility that RT Act matters might be heard by a Member who was not legally qualified.
9. We address each in turn.

Enforceability and finality of orders

1. It was conceded that monetary orders of the Tribunal are made enforceable as judgment debts by registration in a registry of an appropriate court, under s 78 of the NCAT Act. Brandy at 270-1 establishes that enforcement of decisions by registration does not mean that the body is not exercising judicial power.
2. The Solicitor General's submission was that the Tribunal's non-monetary orders under the RT Act do not have the necessary character of enforceability or finality. The lack of enforceability was said to arise because such orders were not "designated orders" under s 72(1) of the NCAT Act and only attracted the operation of s 72(3), which is a civil penalty provision. Although the Tribunal can impose a civil penalty under s 77 for contravening s 72(3), only "an authorised official" can make an application under s 77. Thus, it was said a party could not enforce compliance with a non-monetary RT Act. On this basis, it was contended that these orders are not enforceable or final in the way that orders made in the exercise of judicial power should be.
3. We do not agree with this suggestion. Orders under the RT Act are made in the Tribunal's general jurisdiction and take effect on the date on which they are given or such later date as may be specified in the order - s 61 of the NCAT Act. From that date, parties must comply with such an order, subject, of course, to any order staying or setting aside the original order. In this regard, the Tribunal's orders are not materially different from those of courts exercising judicial power.
4. This finality is reinforced by enforceability. Tribunal orders are enforceable by various mechanisms. If a person contravenes an order, without lawful or reasonable excuse, they are liable to either criminal or civil sanctions, as a result of s 72(1) or (3).
5. In addition, non-compliance with an order of the Tribunal can amount to contempt of the Tribunal and be punished accordingly - s 73(2) and (5) of the NCAT Act and Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, Witham v Holloway (1995) 183 CLR 525 at 530. Contempt proceedings can be initiated by a party. Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 is an example of this type of enforcement of an RT Act order being sought in the Tribunal.
6. In the particular case of orders for possession under the RT Act, these can be enforced through the issue of a warrant for possession by the Principal Registrar, under s 121 of the RT Act. This is analogous to the order made in the exercise of judicial power where execution was by means of a warrant granted by a justice of the peace as an independent administrative act referred to in The Queen v Davison (1954) 90 CLR 353 at 368.
7. These mechanisms for enforcement confirm that an order of the Tribunal is final and binding, except to the extent that there is a further order staying or setting aside that order.
8. Further, we do not accept the specific submission that a party cannot bring proceedings under s 77 for the imposition of a civil penalty against a person who has contravened, without reasonable excuse, a tribunal order in breach of s 72(3) of the NCAT Act. A party can commence such proceedings provided the party has the written consent of the Attorney General (as the relevant Minister under s 75) or of another person or body authorised by the Attorney General for that purpose. Section 75 of the NCAT Act provides, in part: "Proceedings for an offence against a provision of this Act or on an application under section 77 may be commenced only by any of the following persons (an authorised official): … (b) a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose."
9. For these reasons, we do not accept this submission concerning ss 72(3), 75 and 77.
10. It was next submitted that cl 8 of Sch 4 of the NCAT, which permits a party to renew proceedings if an order is not complied with, indicates a lack of finality in the Tribunal's orders. That clause, being found in Sch 4, only applies to proceedings in the Consumer and Commercial Division. It provides: "(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. … (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal."
11. The terms of subcll (1) and (2) indicate that the renewal right only arises if the order in question is not complied with within the period specified by the Tribunal. As we read it, cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, orders. Clause 8 does not deprive Tribunal orders of finality.
12. In summary, the provisions of the NCAT Act to which the Solicitor General drew attention do not, in our view, have the effect that the Tribunal's orders lack finality, are not binding or are unenforceable. The ways in which Tribunal orders take effect and may be enforced rather support the conclusion that the Tribunal is acting judicially and exercising judicial power in matters in its general jurisdiction, including RT Act matters.

Not determining matters in accordance with law.

1. It was further submitted that s 38(4) of the NCAT Act, which requires the Tribunal to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms", means that the Tribunal "is not required to act strictly according to law". This submission should also not be accepted.
2. Such provisions are not uncommon in statutes establishing courts or empowering them to act. A number of Court of Appeal decisions hold that such provisions do not require or permit a court or tribunal to decide otherwise than according to law, whether statute or common law, especially where the decision is appealable on a question of law - Daley v SAS Trustee Corporation (2016) 91 NSWLR 525 at [98]; [2016] NSWCA 111, O'Farrell v Allianz Australia Insurance Ltd [2015] NSWCA 48 at [16] and see also Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-31. Non-interlocutory, first instance decisions of the Tribunal are appealable on a question of law, either to the Appeal Panel, the Supreme Court or (in very limited cases) some other court. Appeals from other decisions on a question of law are available but generally subject to leave. All decisions of the Tribunal are subject to judicial review by the Supreme Court.
3. Even the High Court of Australia, when sitting as the Court of Disputed Returns, is subject to s 364 of the Commonwealth Electoral Act 1918 (Cth). That section is entitled "Real justice to be observed" and provides: "The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
4. In Sue v Hill (1999) 199 CLR 462; [1999] HCA 30, it was held in relation to s 364 of the Commonwealth Electoral Act, at [42]: "… Provisions of this type are not inimical to the exercise of the judicial power of the Commonwealth. They do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness." (footnotes omitted)
5. In State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 at 476-7, the Court of Appeal concluded that a tribunal that was required to make orders that were "fair and equitable to all the parties" was still required to decide matters according to law.
6. For these reasons, we do not accept the submission that s 38(4) permits the Tribunal to act otherwise than in accordance with law.
7. It was further submitted that cl 10 of Sch 4 to the NCAT Act has a similar effect of not requiring the Tribunal to determine matters strictly in accordance with law. Clause 10, which only applies to proceedings in the Consumer and Commercial Division, provides: "(1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal). (2) The Tribunal may: (a) if the party causing the disadvantage is the applicant - order that the proceedings (or part of the proceedings) be dismissed or struck out, or (b) if the party causing the disadvantage is not the applicant: (i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or (ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings). (3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following: (a) the extent to which the party is familiar with the procedures of the Tribunal, (b) the party's capacity to understand, and act on, a direction of the Tribunal, (c) whether the party suffers from a disability, (d) whether the party is acting deliberately in failing to comply with the Tribunal's directions. (4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act."
8. Clause 10, on its terms and properly understood, including in the light of the objects in s 3 and the NCAT Act as a whole, does not enable the Tribunal to determine matters otherwise than in accordance with law. It merely provides a discretionary power designed to assist the Tribunal in the proper management of proceedings in a variety of circumstances.
9. Having regard to these considerations, we do not accept that either s 38(4) or cl 10 of Sch 4 of the NCAT Act indicate that the Tribunal is exercising executive, and not judicial power, in proceedings under the RT Act or more generally.

Not being bound by the rules of evidence

1. Relying on comments in K-Generation at [82], the Solicitor General submitted that the fact that the Tribunal was not generally bound by the rules of evidence, as a result of s 38(2) of the NCAT Act, pointed towards the conclusion that the Tribunal was not a court exercising judicial power.
2. In K-Generation at [82], French CJ held: "The Licensing Court is not bound by the rules of evidence and may inform itself as it sees fit. This can be an indicator of an administrative rather than a judicial body, but it is not determinative. It does not negate the requirement that the Court act lawfully, rationally and fairly. Many important rules of evidence will arise as a consequence of the application of those criteria to the decision-making process."
3. We accept that not being bound by the rules of evidence is often, if not invariably, a characteristic of administrative decision-making bodies. Often, however, courts are similarly not bound by the rules of evidence, whether generally or in relation to particular functions. Such a provision applies, for example, in the Local Court of New South Wales, under s 35(3) of the Local Court Act 2007 (NSW), the Children's Court under s 93(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Family Court under s 69ZT of the Family Law Act 1975 (Cth), QCAT (see Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 (Owen v Menzies) at [15(1)]) and the Liquor Licensing Court the subject of K-Generation (at [30], [79] and [125]). As the High Court explained in the passage from Sue v Hill at [42] quoted above, a provision which renders the rules of evidence inapplicable is not inimical to the exercise of judicial power, including the judicial power of the Commonwealth.
4. McHugh J explained in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 601: "State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation."
5. The nature of the body in question, its processes and functions will usually be a more certain indicator of whether it is an administrative or judicial body. Even though the Tribunal is not generally bound by the rules of evidence, its processes and procedures and the nature of its predominant functions point to the conclusion that the Tribunal is exercising judicial power when it deals with matters in its general jurisdiction, including matters under the RT Act. This is reinforced, in NCAT's case, by the express requirement in s 38(2) of the NCAT Act to comply with the principles of natural justice even when not bound by the rules of evidence. These principles include the duty to act impartially and ensure all parties have the opportunity to be heard, as well as the implicit obligation to act lawfully, rationally and fairly will be likely to have an effect similar to the application of the rules of evidence. As Evatt J observed in The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256: "But this [the inapplicability of the rules of evidence] does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and disadvantage the opposing party. In other words, although the rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'."
6. Further, in the Tribunal, the general inapplicability of the rules of evidence is subject to a number of exceptions. First, s 128 of the Evidence Act 1995 (NSW) does apply to evidence in the Tribunal - s 38(3)(b) of the NCAT Act. Secondly, the rules of evidence do apply in proceedings in exercise of the enforcement jurisdiction (see s 38(3)(a)(i)), in proceedings for the imposition of a civil penalty in the general jurisdiction (see s 38(3)(a)(ii)) and in other cases, for example, proceedings under the Legal Profession Uniform Law and similar proceedings (see cl 20 of Sch 5 noting s 35).
7. In the circumstances, we do not accept that s 38(2) of the NCAT Act should be seen as establishing that the Tribunal is not exercising judicial power when performing its functions under the RT Act or otherwise.

The lack of a right to legal representation

1. The Solicitor General submitted that the fact that, under s 45 of the NCAT Act, a party may be represented by an Australian legal practitioner only if the Tribunal grants leave also points to the conclusion that the Tribunal is not exercising judicial power. No authority was cited in support of this submission.
2. It should be noted that the position concerning representation set out in s 45 is modified by the provisions of the Division Schedules (Schs 3, 4, 5 and 6 to the NCAT Act) by operation of s 17(3). Under Sch 3 cl 9 and Sch 5 cl 2, in virtually all proceedings in the Administrative and Equal Opportunity Division and in all proceedings in the Occupational Division, parties are entitled to legal representation and leave is not required. In addition, by operation of s 35 of the NCAT Act, s 45 (as well as the other provisions of Pt 4) is subject to any enabling legislation. A right of representation can be granted in such legislation - see, for example, s 165J of the National Law.
3. In our view, s 45 should be seen as a provision designed to assist the Tribunal to comply with s 36(4) of the NCAT Act. That subsection provides: "In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings."
4. Thus, s 45 can be seen to be consistent with acting judicially but proportionately. When exercising the discretion under s 45(1) and (3) whether to grant leave for legal representation, the Tribunal will be required to act judicially and exercise the discretion having regard to the relevant circumstances of each case, the guiding principle in s 36(1), the terms of s 36(4), and the scope and purpose of the NCAT Act.
5. When s 45 is viewed in the context the NCAT Act as a whole, the fact that leave for legal representation is required in certain cases, including those under the RT Act, does not provide any substantial basis for concluding that the Tribunal is not exercising judicial power in those cases.

RT Act matters being heard by a non-legally qualified Member

1. Finally, the Solicitor General submitted that the fact that proceedings under the RT Act might be heard by a person who was not legally qualified also pointed to the Tribunal's not exercising judicial power.
2. Constitution of the Tribunal is dealt with generally in s 27 of the NCAT Act which provides, in part: "(1) The Tribunal is to be constituted as follows: (a) in the case of an internal appeal or designated external appeal - by an Appeal Panel of the Tribunal consisting of: (i) one member who is an Australian lawyer, or (ii) 2 or more members (at least one of whom must be an Australian lawyer), (b) in the case of proceedings for contempt of the Tribunal - by one or more of the following members: (i) the President, (ii) any other member who is a current or former NSW judicial officer, (c) in the case of proceedings for a contravention of a civil penalty provision of this Act - by one or more of the following: (i) the President, (ii) a Deputy President, (iii) a principal member who is an Australian lawyer of at least 7 years' standing, (d) in the case of any other proceedings - by one or more Division members of the Division to which the function of dealing with the proceedings is allocated. Note. The functions of the Tribunal are generally exercised in the Divisions of the Tribunal by Division members. However, the functions of the Tribunal when constituted by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to any particular Division of the Tribunal. See section 16 (4). A Division Schedule for a Division may, in some cases, make special provision for the constitution of the Tribunal when exercising functions allocated to that Division (including the qualifications of members to sit in specified kinds of proceedings). It may also provide for certain Division functions to be exercised by a registrar and for the constitution of Appeal Panels in internal appeals against decisions made in the Division. The procedural rules may also authorise a registrar to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal. See section 23 (6). (2) The President may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings. Note. The President may delegate the function of constituting the Tribunal for particular proceedings to a Division Head for a Division of the Tribunal or another member. See clause 12 of Schedule 2. … (4) The President may give directions (whether for particular proceedings, classes of proceedings or generally) as to which member is to preside at proceedings in the Tribunal when the Tribunal is constituted by more than one member. …"
3. As a result of these provisions, matters under the RT Act, which fall within s 27(1)(d) of the NCAT Act, can be heard by a Member who is not a lawyer. This is because not all Principal, Senior and General Members are required to be legally qualified - see s 13 of the NCAT Act. In the Johnson, Dibbin and Gatsby matters the Tribunal was constituted by Members who are legally qualified and have been Australian lawyers for more than 7 years. This is almost invariably the case in RT Act matters since the overwhelming majority of Members assigned to the Consumer and Commercial Division are Australian lawyers of at least 7 years' standing. In the other Divisions, proceedings are presided over by an Australian lawyer of at least 7 years' standing or a judicial officer, with or without other Members composing the panel. Clause 4(2) of Sch 6 to the NCAT Act permits reviews of certain orders previously made in the Guardianship Division by a panel presided over by an Australian lawyer of at least 7 years' standing and for consents for certain treatments to be determined by a legally qualified Member, a professionally qualified Member, such as a medical practitioner or psychologist, and/or a community Member experienced in dealing with persons with impaired decision making capacity.
4. In any event, Members dealing with RT Act matters, like all other Members, are required to decide matters in accordance with law. Their decisions are subject to appeal as of right on a question of law - s 80 of the NCAT Act, read with s 32. This right is supported and made effective by the requirement that they give reasons for their decisions that include identification of the relevant law and an explanation of how it has been applied to the facts as found based on the evidence.
5. The Queensland Court of Appeal in Owen v Menzies rejected a similar submission concerning QCAT members. The President said at [50]: "At the time of federation, Magistrates Courts were commonly constituted by justices of the peace who for the most part were not legally qualified. Indeed, justices of the peace can still constitute a Magistrates Court in Queensland for limited purposes. The fact that many QCAT members determining disputes are not called judges, or may not even be legally qualified, does not mean it is not a court." (footnotes omitted)
6. In all of these circumstances, we do not accept that the fact that a Member who hears a RT Act matter might not be legally qualified means that the Tribunal is not exercising judicial power when determining such matters.

Conclusion on matters raised in the Solicitor General's submissions

1. In summary, we do not accept that the matters raised by the Solicitor General, whether taken alone or together, establish that the Tribunal does not exercise judicial power, either generally or when determining matters under the RT Act. In particular, we believe that the manner in which the Tribunal exercises its powers is consistent with the exercise of judicial power.

The RT Act and the Tribunal's power to make orders

1. The Solicitor General's detailed submissions also focused upon various specific aspects of the RT Act as providing support for the conclusion that the Tribunal was not exercising judicial power when deciding matters under that Act. Consequently, it is necessary for us also to review the RT Act and the Tribunal's powers under that Act to address those submissions.
2. The Johnson and Dibbin matters, on one hand, and Gatsby matter, on the other, involve different types of orders under the RT Act. The Johnson and Dibbin matters relate only to orders for compensation for breach of a residential tenancy agreement and access to the rental bond, whereas the Gatsby matter involves only an order for termination because of breach of a residential tenancy agreement and for possession of the premises in question.
3. It is informative that the long title of the RT Act is: "An Act with respect to the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to residential tenancy agreements; and for other purposes."
4. This indicates that the existence of a residential tenancy agreement is fundamental to the operation of the RT Act and that the parties' rights and obligations are generally their contractual rights and obligations, as provided, supplemented or limited by the RT Act.
5. The definitions of "landlord" and "tenant" in s 3(1) of the RT Act have as their principal meanings "the person who grants the right to occupy residential premises under a residential tenancy agreement" and "the person who has the right to occupy residential premises under a residential tenancy agreement", respectively.
6. By s 6, the RT Act applies to residential tenancy agreements in respect of residential premises whenever made. A number of exceptions and additions are contained in ss 7 to 12, which are not of direct relevance for the purposes of separate question (a); although in the Gatsby appeal they are likely to be relevant if and when the substantive appeal is heard.
7. The provisions in Pt 2 (ss 13 to 22) of the RT Act deal with residential tenancy agreements for the purposes of the Act and specify various requirements in respect of such agreements and their terms. Section 15(3) provides that a standard form residential tenancy agreement must be consistent with the RT Act and the regulations.
8. The rights and obligations of landlords and tenants are dealt with in Pt 3, ss 23 to 73. It should be noted that where a section of Pt 3 imposes an obligation on a tenant or a landlord, in a number of cases it also expressly states that "[t]his section is a term of every residential tenancy agreement" (see for example ss 33(4) and 35(4)).
9. In this way, a tenant's obligations to pay rent and water usage charges, as specified in ss 33(1) and 39(1), become terms of the residential tenancy agreement by operation of ss 33(4) and 39(7). Similarly, it is a term of a residential tenancy agreement that the tenant must: 1. not intentionally or negligently cause or permit any damage to the residential premises - s 51(1)(d) and (5); 2. keep and leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy - s 51(2)(a), (3)(c) and (5); and 3. remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy - s 51(3)(d) and (5).
10. The landlord's obligations under a residential tenancy agreement include the obligation to: 1. provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant - s 52(1) and (4); and 2. maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises - s 63(1) and (4).
11. As we understand it, the contractual obligations set out above are the principal obligations that at least one of the parties in the present appeals contends an opposing party has breached. Relief is sought in each matter based, at least in part, on allegations of breach of one or more of these obligations.
12. Termination of residential tenancy agreements is dealt with in Pt 5 (ss 80 - 118) of the RT Act. Under s 81(1), a residential tenancy agreement terminates only in the circumstances set out in the RT Act. Some of these circumstances are set out in s 81(2) and (3) as follows: "(2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. "
13. The payment and recovery of rental bonds of up to four weeks' rent (see s 159(1)) are dealt with in Pt 8 (ss 157 to 186). For the most part, rental bonds are managed administratively by the "Secretary", who presently is the Commissioner for Fair Trading (see the definition in s 3(1) of the RT Act). The Tribunal's role in relation to rental bonds is essentially limited to making orders under s 175 concerning to whom the rental bond should be paid. If the notification requirement in s 168(1) is complied with, the Secretary may under s 168(2)(b) only pay a rental bond claim "in accordance with an order of the Tribunal or court", unless other provisions of s 168(2), (3) or (4) apply.
14. Disputes arise not infrequently between landlords and tenants as to their rights and obligation under their residential tenancy agreements. The RT Act provides that in many cases those parties can apply to the Tribunal for orders to resolve their disputes. Except for s 119, the RT Act does not prevent landlords and tenants seeking whatever remedies might be available in the courts. Section 119 concerns recovery of possession and forbids a landlord or former landlord from commencing "proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement".
15. The Tribunal's powers to make orders resolving disputes between landlords and tenants are found in various parts of the RT Act but include, most relevantly in the light of the claims and orders made in the Johnson, Dibbin and Gatsby matters: 1. Section 45 which deals with remedies for reduction of rent as follows: "(1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43 (2). (2) The Tribunal may order that: (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount." Section 43(2) provides: "The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are: (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process." 1. Section 87 which deals with termination for breach of residential tenancy agreement by a tenant as follows: "(1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach." 1. Section 83(1) which provides that the Tribunal must also make an order for possession of premises if it makes an order terminating a residential tenancy agreement. 2. Section 175 which deals with powers of the Tribunal concerning rental bonds as follows: "(1) The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond. (2) The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary. (3) An application for an order must be made within the period prescribed by the regulations." 1. Section 190 which deals with applications relating to breaches of residential tenancy agreements in the following terms: "(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made: (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord."
16. These and the Tribunal's other powers to make orders are, where necessary, supplemented or confined by ss 187 and 188, which specify types of orders which the Tribunal may make in proceedings. They are in the following terms: "187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: … (c) an order for the payment of an amount of money, (d) an order as to compensation, … (i) a termination order or an order for the possession of premises, ... (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: … (b) any other breach of a residential tenancy agreement, …. … (4) The Tribunal must not make an order for: (a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or … Note. This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders, to declare that premises have been abandoned, to make orders about holding fees and to make various orders about rental bonds. 188 General order-making power of Tribunal The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders: (a) an order that the Tribunal may make under this Act, (b) an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings, (c) any ancillary order the Tribunal thinks appropriate, (d) an interim order."
17. Finally, in addition to s 119 of the RT Act, to which we have referred above, s 208 amounts to a legislative indication that, although the Tribunal shares jurisdiction with the courts in relation to disputes concerning residential tenancies, the Tribunal is generally intended to be the body which should hear and determine such matters. Section 208 does this by establishing a potential costs penalty if a party brings proceedings in a court rather than the Tribunal. It is in the following terms: "If a court in any proceedings is of the opinion that, having regard to the subject-matter of the proceedings, the taking of the proceedings was not warranted in the circumstances of the case because this Act makes adequate provision for the enforcement by the Tribunal of the rights concerned, the court, unless it is of the opinion that it would be unjust to do so, must order the plaintiff to pay the defendant's costs in such amount as the court determines."
18. The provisions relevant to each matter can be summarised as follows: 1. the Johnson appeal concerned the order in the Johnson matter dismissing the application for orders under ss 45, 175, 187(1)(b) and 190 and the orders made under ss 175, 187(1)(b) and 190 in the Dibbin matter; 2. the Gatsby appeal was against the order under s 87 terminating the residential tenancy agreement (the existence of which was challenged) for breach and the consequential order for possession of the premises under s 83(1), in the Gatsby matter.
19. The Solicitor General made a number of submissions based on particular aspects of the provisions identified above to the effect that they did not involve the exercise of judicial power. It is convenient to deal with those submissions here.
20. Termination orders In relation to s 87, it was submitted that in making a termination order under this provision the Tribunal was not called upon to determine the existence of legal rights and obligations. This was said to be because, even if satisfied of the matters in s 87(4)(a) to (c), the Tribunal still retained a discretion whether to terminate. This situation was submitted to be analogous to the situation in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2013) 218 FCR 447 (Today FM) which Edmonds J described at [47] as "[t]he absence of any direct legal effect of a finding of breach" which his Honour said was "not consonant with an exercise of judicial power".
21. We note that Edmonds J's orders were set aside by the Full Court but restored by the High Court in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2014) 218 FCR 461; [2014] FCAFC 22 and Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 respectively. It is not clear to what extent this particular aspect of the reasoning at first instance was endorsed on appeal.
22. There are a number of comments that should be made about this submission. First, the nature, functions and procedures of the Australian Communications and Media Authority in those cases were materially different from those of the Tribunal when dealing with matters under the RT Act. Secondly, the Authority, being a federal authority not composed of judges with Ch III tenure, was without doubt not a court and could only exercise executive or administrative power. Thus, any reasoning in those decisions is unlikely to be directly applicable to the Tribunal. Thirdly, the situation under consideration by Edmonds J was entirely different from an application for termination of a residential tenancy agreement for breach of the agreement under the specific terms of s 87(4). Edmonds J's comment must be read in the context in which they were made. We do not believe that the comment directly assists us in these appeals.
23. Further and in any event, it appears to us that the Tribunal's being satisfied that the tenant has breached a residential tenancy agreement, under s 87(4)(a), does involve determining the legal rights and obligations of the parties and does have legal effect or consequences. The required satisfaction must be based on conclusions of fact and law such as: there was a residential tenancy agreement; under that agreement the tenant was obliged to do or not do something; and, the tenant breached the agreement by failing to comply with the obligation. In addition, the consequence of the Tribunal's being satisfied that the tenant has breached the residential tenancy agreement is that the power to terminate is enlivened, subject to the Tribunal being satisfied of the matters in s 87(4)(b) and (c). Thus, the Tribunal's being satisfied that there has been a breach is based on a determination of legal rights and obligations and has a very significant direct legal effect.
24. Section 87(4) is not unusual. It is the same as many provisions which confer a discretion to grant relief where the decision-making body is satisfied of certain matters. Granting relied under such a provision involves the exercise of judicial power in many cases. Example of such relief which may be granted by courts exercising federal judicial power can be found in ss 44ZZD(1), 79A(1), 87(1), 152BB of the Competition and Consumer Act 2010 (Cth), to take but a handful of examples from just one statute.
25. For these reasons we do not accept that the terms of s 87 of the RT Act mean that the Tribunal is not exercising judicial power when making a termination order under s 87(4).
26. Rental bond payment orders The Solicitor General also submitted that an order under s 175 of the RT Act concerning to whom the rental bond should be paid was administrative not judicial in nature. In our view, this involves a mischaracterisation of the Tribunal's limited role in relation to rental bonds, which has been explained above. While the "Secretary's" role is administrative, the same is not true of the Tribunal's function in making orders under s 175 of the RT Act. Section 175 empowers the Tribunal to "make an order as to the payment of the amount of the rental bond" "on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond".
27. This indicates that the power under s 175 to make an "order" is to be exercised by way of a judicial process involving an "application" made within a prescribed period and having regard to the legal interests of those who were involved with the tenancy agreement in respect of which the bond was paid. Any order made must be complied with by the Secretary and the parties.
28. Types of orders under s 187 Another submission made by the Solicitor General was that, even if breach of the residential tenancy agreement by a tenant was established, that did not entitle a landlord, such as Ms Dibbin, to compensation by way of an order under s 187(1)(d) or (2) because the Tribunal retained a discretion whether or not to make such an order. This was said to follow from the use of "may" in the chapeaux to s 187(1) and (2). Once again, Edmonds J's comment in Today FM was relied upon to contend that, in making compensation orders under s 187(1)(d) or (2), the Tribunal could not be exercising judicial power. For similar reasons to those we gave in relation to s 87, we do not accept this submission.
29. We also believe this submission may misconceive the role of s 187 and the use of "may" in that provision. Section 187 does not create the legal rights entitling a party to the types of orders listed. Nor does the word "may" in that provision confer a discretion whether or not to grant any relief. Rather, "may" is used to specify various types of orders the Tribunal has permission to make, if a party has established a legal entitlement to relief in the circumstances. The Appeal Panel explained the situation in Corcoran v Far [2018] NSWCATAP 13 as follows at [67] (applying by analogy the reasoning in State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 at 478-9): "…any discretion provided by s 187(1)(d) does not allow withholding all remedies where loss and damage has been suffered in consequence of a breach. Rather, the discretion in this regard may allow a particular type of remedy to be granted where alternatives are available - for example rent reduction as opposed to an award of monetary compensation."
30. The power to vary or set aside previous orders The Solicitor General also submitted that s 188(b) of the RT Act, which provides that the Tribunal may in any proceedings under that Act make an order "that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings", means that orders under the RT Act are not final and binding in the required sense. Thus, it was said, making such orders that are subject to s 188(b) does not involve the exercise of judicial power.
31. In our view, s 188(b) should not be seen as "a significant exception to the principle of finality generally applicable to the exercise of judicial power", as was submitted. Rather, that provision merely confers an appropriate discretion on the Tribunal so that it can ensure that orders previously made in relation to a continuing relationship of landlord and tenant cannot become an impediment to doing justice in later proceedings concerning that relationship. The discretion is obviously one which must be exercised judicially, that is, according to law, within the limits set by the subject matter, scope and purpose of the RT Act and having regard to the particular circumstances of each case. Powers to set aside judgments and orders in appropriate, limited circumstances are well known in courts exercising judicial power - see for example Uniform Civil Procedure Rules 2005 (NSW) r 36.15 and r 36.16 and s 79A(1) of the Family Law Act but note the discussion in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40. These types of provisions do not mean that the original orders are not final or that judicial power is not being exercised when the original orders are made.
32. Conclusion on the submissions concerning the effect of the RT Act For all of these reasons we do not accept the Solicitor General's submissions that the provisions of the RT Act he referred to have the effect that the Tribunal cannot be exercising judicial power when it performs its functions under the RT Act involving those provisions.

Johnson and Dibbin matters

1. We now turn to consider what the Tribunal did in the particular matters and how the principles concerning judicial power should be applied in those circumstances.
2. In her application in proceedings RT 15/41349 Ms Dibbin claimed, in effect, that she was entitled to: 1. a compensation order of the type described in s 187(1)(d) in respect of the moisture damage and cleaning expenses incurred because of the tenant's breaches of the terms of the residential tenancy agreement arising under ss 51(1)(d), 51(3)(c) and (d). Ms Dibbin could make this application under s 190(1); and 2. an order, under s 175, that the rental bond be paid to her to cover, in part, the amount claimed in respect of the moisture damage and cleaning expenses.
3. Ms Johnson disputed Ms Dibbin claims. In Ms Johnson's application in proceedings RT15/44353 she in effect sought: 1. an order for repayment of rent under s 45(2)(b) of the RT Act because the premises were uninhabitable due to "serious mould" and the rent consequently abated; 2. an order of the type described in s 187(1)(d) for compensation for injury to her cat and damage to her possessions because of the mould. She could apply for such an order under s 190(1) as the damage allegedly arose out of a breach of the residential agreement by the landlord not providing the residential premises in a reasonable state of cleanliness and fit for habitation and not maintaining them in a reasonable state of repair, as required by the terms arising under ss 52(1) and 63(1) of the RT Act; 3. a "full bond refund", under s 175, as she had paid the bond and the landlord was not entitled to any amount against which the rental bond might be able to be set off.
4. Ms Dibbin opposed these orders being made.
5. Thus, there was a dispute or controversy between Ms Dibbin and Ms Johnson as to their legal rights and obligations under the residential tenancy agreement, what relief should flow from any breaches and who should receive the rental bond.
6. The NCAT Act and related legislation required the Tribunal to resolve the dispute by taking evidence and submissions in an open, public hearing after permitting both sides the opportunity to lead evidence and make submissions. The Tribunal made various findings of fact based on the evidence, including as to the state of the premises, why they were in that state and the cost of rectifying the problems. It then sought to apply the law, as it understood it, to the facts, made orders and gave reasons for its decision.
7. The Tribunal decided that the mould was caused by the way in which Ms Johnson used the premises not by any breach of the residential tenancy agreement by Ms Dibbin. Accordingly, all aspects of Ms Johnson's application were dismissed (order 1 made on 19 November 2015). The Tribunal also found that Ms Dibbin was entitled to compensation in the sum of $4,400, implicitly accepting that Ms Johnson had breached the residential tenancy agreement in respect of the damage and rubbish removal and expressly in respect of the cleaning costs. It ordered that the rental bond be paid to her, to be credited against the amount of the money order (orders 2 and 3 of 19 November 2015).
8. In summary, the functions performed by the Tribunal in the Johnson and Dibbin matters, in resolving the disputes between this landlord and tenant as to their legal rights and legal obligations arising out of the residential tenancy agreement, involved the ascertainment of the facts and application of the law, as the Member understood it, to those facts. The Tribunal made a decision settling, as between Ms Johnson and Ms Dibbin, for the future, subject to the outcome of the Johnson appeal, various questions as to the rights and obligations between them so as to create new rights to the payment of money and payment of the rental bond, reflected in the Tribunal's orders. In accordance with the principles referred to in Rizeq and Tasmanian Breweries set out above, this should properly be seen as the exercise of judicial power by the Tribunal.
9. This conclusion is reinforced by consideration of the second dimension of judicial power identified in TCL and the nature of the requisite process elaborated upon by Kitto J in Tasmanian Breweries. In the Johnson and Dibbin matters, the Tribunal was required to, and did, exercise its function by a process that involved an open public enquiry and the requirement to observe the rules of procedural fairness. It could not legitimately be said that the Tribunal in reaching its conclusions applied administrative policy, in the sense explained above, rather than the law to the facts as found. The result of the process was orders which, subject to the Johnson appeal and subject to any stay under s 43(3) of the NCAT Act, were final and had the following consequences: 1. the parties were required to comply with them by s 72(3) of the NCAT Act; 2. if Ms Johnson did not comply with those orders, she could also be liable to be dealt with for contempt under s 73(2) and (5); 3. Ms Dibbin could enforce the money order by registering it, under s 78(1) to (3); and 4. The Secretary was required to pay the rental bond to Ms Dibbin, subject to the operation of s 168(4) in the light of Ms Johnson's appeal.
10. These consequences follow, notwithstanding s 188(b) of the RT Act, which was not invoked in this case.
11. Finally, in respect of the Johnson and Dibbin matters, there was nothing in the way in which the Tribunal was required to carry out its functions that was incompatible with the Tribunal being, and being seen to be: 1. impartial between the parties; and 2. independent of the parties and of other branches of government.
12. Accordingly, having regard to the general principles concerning judicial power set out above, we conclude that the Tribunal was exercising judicial power in determining the Johnson and Dibbin matters.

The Gatsby matter

1. In her application in proceedings RT 15/56639 Ms Berri Gatsby, as landlord, sought termination and possession orders on the basis of: "Non payment of rent for many years Non payment of rates, water and associated charges with the property The lack of care being taken with the property resulting in significant damages".
2. Ms Berri Gatsby alleged that Ms Deva Gatsby was allowed to occupy the premises as a residence on the basis that she pay council and water rates and maintain the property at her expense.
3. Ms Deva Gatsby, who occupied the premises, contended that they had been given to her by Ms Berri Gatsby and denied that there was a residential tenancy agreement. She refused to give possession. Thus, there was a dispute between the parties as to their rights and obligations in relation to the property, whether those rights and obligations arose out of a residential tenancy agreement and, if so, had that agreement been breached so as to justify termination.
4. To resolve the dispute between the parties, the Tribunal had to conduct an open public hearing at which it received evidence and submissions on behalf of both parties. The Tribunal's task was then to make findings of fact based upon the evidence and apply the law, as it understood it, to those facts. This it sought to do. The Tribunal concluded (numbered par 1 of the reasons) that there was an arrangement that Ms Deva Gatsby could live in the premises provided she paid all council and water rates and maintained the property and that this arrangement was a residential tenancy agreement as defined in s 13 of the RT Act, with the rent being the payment of those rates and maintenance costs. The Tribunal also found that there was a substantial amount of unpaid rates at the relevant time (numbered pars 5 and 8).
5. The Tribunal was next required to consider whether the requirements relating to the termination notice and other requirements in s 87 were satisfied. It concluded that they were. Because s 87(4) states that the Tribunal "may … make a termination order if it is satisfied" of the matters set out in s 87(4)(a), (b) and (c); the Tribunal was also required to exercise a discretion whether to make the termination order in the circumstances of the case. When implicitly addressing both the matters in s 87(4)(a), (b) and (c) and the discretion whether to make a termination order, the Tribunal said in the "Conclusion" section of its reasons: "The Tribunal has had regard to the factors set out in section 87 of the Act. In particular, the Tribunal has taken into account the unfortunate history of the relationship between the parties and its continued deterioration. However, the respondent has breached the agreement by not paying the rates [details of which were provided previously in the reasons], the notice is given in accordance with section 87, complies with sections 82 and 88, and the applicant is entitled to the orders she seeks. Taking into account the circumstances of the respondent and her children, the order for possession will be suspended for 3 months."
6. As a result, the Tribunal made a termination order as well as the consequential possession order required by s 83 of the RT Act. The possession order was suspended so as to allow Ms Deva Gatsby 3 months in which to vacate the premises.
7. As we have noted above, the discretion to be exercised under s 87(4) is an example of a form of discretion very commonly conferred on courts exercising judicial power to grant or withhold a legal remedy if satisfied of certain matters. Given that the discretion has to be exercised according to law and within the limits set by the subject-matter, scope and purpose of the RT Act, it could not legitimately be characterised as requiring the Tribunal to act on the basis of "general policy and expediency alien to the judicial method", to adopt the language of Kitto J in BLF at 305.
8. Having regard to these matters and the statement of Kitto J in WWF at 317 quoted above, the fact that the Tribunal was required to exercise the discretion found in s 87(4) when determining the Gatsby matter does not have the consequence that the power being exercised was not judicial power. This conclusion is supported by The Queen v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 at 216; [1976] HCA 48 (Joske), where Mason and Murphy JJ held: "…, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v. Cominos). It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decisions; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under sub-s. (2)(a) and the impact which such an order will have on the interests of persons who may be affected." (footnotes omitted.).
9. The functions to be performed by the Tribunal in the Gatsby matter in resolving the disputes between the owner of the premises and the occupier as to their legal rights and legal obligations fall naturally and wholly within the description of the first dimension of judicial power given in Rizeq at [52] - "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion".
10. The effect of the Tribunal's decision was that Ms Deva Gatsby's existing right of occupation of the premises, with the concomitant obligation to pay rent, was terminated. A new right to obtain possession of the property was created in Ms Berri Gatsby's favour. In this way, the Tribunal's functions in the Gatsby matter involved making a decision settling for the future, subject to the outcome of the Gatsby appeal, a question as to the existence of rights or obligations so that the exercise of the power created a new charter by reference to which that question is in future to be decided. The exercise of judicial power, as Kitto J in effect observed in Tasmanian Breweries at 374, often involves replacing existing rights and obligations with new rights and obligations. Similarly, in Joske at 216; it was held: "Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights."
11. The Tribunal, in the Gatsby matter, was required to exercise its function by a process that involved an open public enquiry and the observance of the rules of procedural fairness. The Tribunal in this matter, as in the Johnson and Dibbin matters, applied the "pre-existing standards" as set out in the various provisions of the RT Act and the common law to determine the matters. It did not decide them by the formulation of policy or the exercise of administrative discretion. The orders made in the Gatsby matter were binding by operation of s 72(3) of the NCAT Act and, subject to such matters as the Gatsby appeal and any stay under s 43(3) of the NCAT Act, final. If Ms Deva Gatsby did not comply with those orders, she could be liable to be dealt with for contempt under s 73 of the NCAT Act. Ms Berri Gatsby could enforce the possession order by obtaining a warrant for possession, through the administrative process available under s 121 of the RT Act.
12. Nothing in the NCAT legislation nor the RT Act required the Tribunal to carry out its functions in the Gatsby matter so as not to be, or be seen to be, impartial between the parties and independent of the parties and of other branches of government. Once again, the functions of the Tribunal under the RT Act could not be said to be incompatible with the essential character of a court, as referred to in TCL at [27]. .
13. For these reasons, it appears to us that in determining the Gatsby matter, the Tribunal was exercising judicial power.

Criticisms of the conduct of the Members in the particular matters

1. At various points, the Solicitor General's submissions identified perceived shortcomings in the conduct of the hearing, or the reasons for decision given, by the Members who determined the Johnson, Dibbin and Gatsby matters. These were said to indicate the "administrative character of the Tribunal's power". We do not accept that this is correct.
2. The question of the nature of the power being exercised by the Tribunal depends not so much on what the Tribunal actually did but rather on what it was required to do. Consequently, even if, for example, the Tribunal had failed to accord procedural fairness, mis-exercised a discretion, misunderstood the law or provided inadequate or flawed reasons for its decision, this would not mean that the Tribunal was not exercising judicial power. It would simply mean that the Tribunal's decision might be liable to be set aside by the Appeal Panel in one or other of the appeals which are before us.

First basis - conclusion and support from analogy and history

1. For these reasons, we are of the view that when performing its functions under the RT Act generally, and in the Johnson, Dibbin and Gatsby matters in particular, the Tribunal was exercising judicial power. We do not think that the Solicitor General's contrary submissions contending that the Tribunal was exercising executive or administrative power in this regard should be accepted.
2. Support for our conclusion can be found in analogy and history.
3. The High Court has indicated, for example in Tasmanian Breweries at 373 and Cominos at 607, that the exercise of functions analogous to admitted judicial functions can provide a basis for concluding that judicial power is being exercised.
4. In Brandy, Deane, Dawson, Gaudron and McHugh JJ held at 269 that "the trial of actions for breach of contract or for civil wrongs is 'appropriate exclusively to judicial action'" (citing Isaacs J in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175) (emphasis in the original). Mason CJ, Brennan and Toohey JJ made the same point in Brandy at 258.
5. Proceedings in the Tribunal under the RT Act are closely analogous to, if not the same as, "actions for breach of contract or for civil wrongs", having regard to the fact that: 1. the rights and obligations enforced under the RT Act are either rights and obligations under the contracts constituted by the residential tenancy agreements between landlords and tenants or other civil rights and obligations conferred by the RT Act; and 2. the Tribunal's process results in a binding and authoritative determination which ascertains the rights of the parties.
6. This consideration thus confirms that the conclusion reached above that the Tribunal's exercise of its functions under the RT Act in the Johnson and Dibbin and Gatsby matters involves the exercise of judicial power.
7. History also provides support for the conclusion that the Tribunal is exercising judicial power when it determines matters under the RT Act. In Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1, Latham CJ (Rich and McTiernan JJ agreeing) held at 9: "Power to make an order in favour of a landlord against a tenant for the recovery of the possession of leased land is plainly a judicial power according to any definition of judicial power which can be suggested."
8. The power exercised by the Tribunal in the Gatsby matter is precisely the power to make an order in favour of a landlord against a tenant for the recovery of possession of leased land. This is, according to the High Court, plainly a judicial power according to any definition of judicial power that can be suggested. There is no reason to form a different view in relation to the power to grant relief for breach of contract, namely the residential tenancy agreement, as was invoked in the Johnson and Dibbin matters.
9. Thus, history lends its support to the conclusion that the Tribunal exercises judicial power when determining matters under the RT Act.

Second Basis - Authority establishes that when powers under the RT Act are exercised by a court, that body is exercising judicial power.

1. Independently of, but related to, the first basis for concluding that the Tribunal is exercising judicial power when performing its functions under the RT Act, there is an additional basis for concluding that NCAT is exercising judicial power when it performs those functions. This depends on a series of judgments of the Full Court of the Federal Court explicitly establishing that the very same functions of the Tribunal under the RT Act, when performed by a court, involve the exercise of judicial power.
2. It is true that in Brandy, at 267, it was observed that there are "functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not". In the Tribunal's case, however, there is a foundation for concluding that the Tribunal is a court and, in particular, a court of record.
3. In these circumstances, unless we are of the view that the Full Federal Court decisions are plainly incorrect, we should follow them and, if the Tribunal is a court, conclude that the Tribunal is exercising judicial power when it performs its functions under the RT Act.

A court performing functions under the RT Act exercises judicial power

1. The Full Federal Court decisions, including Dattilo v Commonwealth of Australia [2017] FCAFC 17 (Dattilo) and Rigney v Commonwealth of Australia [2017] FCAFC 18 (Rigney), concern residential tenancies agreements relating to land acquired by the Commonwealth for the purposes of the Badgery's Creek airport.
2. As a result of legislative provisions (fully set out in [81] to [84] of Dattilo), the rights and obligations of residential tenants of Commonwealth land in New South Wales are to be dealt with by the Federal Circuit Court but in accordance with the RT Act, as if that Court were the Tribunal.
3. In particular, the Federal Circuit Court was given jurisdiction to hear and determine a "Commonwealth tenancy dispute" and the Minister was given power to specify, by legislative instrument, the law (including a law of a State) to be applied in determining such a dispute - s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) especially subs (1) and (3)(b).
4. The Minister's legislative instrument provided in cl 5(3) that nothing in the instrument had effect so as to confer non-judicial power on the Federal Circuit Court unless that power was incidental to the exercise of judicial power.
5. Clauses 7 to 10 relevantly provided that: 1. the law to be applied was the RT Act and regulations - cl 7(1); 2. the RT Act and regulations were to be applied as if a reference to the Tribunal were a reference to the Federal Circuit Court of Australia - cl 8(1)(a); and 3. the Federal Circuit Court may exercise any powers of the Tribunal relevant to determining a dispute or enforcing orders - cll 9 and 10;
6. Consequently, the Federal Circuit Court was required in substance and form to exercise the same powers and functions as the Tribunal under the RT Act. In Dattilo (and the related cases) it was argued that these legislative provisions were invalid as they required the Federal Circuit Court to exercise non-judicial power contrary to Ch III of the Constitution - Dattilo at [93]ff. The Full Federal Court rejected that contention - Dattilo at [128] - for the reasons at [111] to [127]. Notwithstanding cl 5(3) of the Instrument, it was held that the Federal Circuit Court could perform all necessary functions under the RT Act since doing so involved the exercise of judicial power not executive or administrative power.
7. Thus, the Full Court accepted that, when performing the same functions as the Tribunal under the RT Act, the Federal Circuit Court was exercising judicial power. No party submitted that the Full Federal Court's reasoning or conclusion was wrong. Nor do we think that the Full Court was plainly incorrect. Accordingly, we should follow and apply the decision.

Can NCAT be said to be a court?

1. We therefore turn to consider whether the Tribunal can be said to be a court. This issue turns principally upon the Tribunal's powers in relation to contempt and whether it has the power to imprison or fine.
2. Section 73 of the NCAT Act provides: "(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court. Note. Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer). (2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission. (3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal. (4) For the purposes of this section: (a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and (b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and (c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied. Note. Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section. (5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination. (6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate."
3. Under s 199(7) of the District Court Act 1973 (NSW), that Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days. By operation of s 73(4)(a) of the NCAT Act, the Tribunal has the same powers to imprison and fine.
4. Under s 77 of the NCAT Act, the Tribunal has power to impose fines by way of a monetary penalty not exceeding $22,000 in the case of a corporation and $11,000 in any other case if the Tribunal is satisfied that a person has contravened a civil penalty provision of the NCAT Act. The civil penalty provisions include s 72(3) which establishes that a person must not, without reasonable excuse, contravene any order of the Tribunal (other than a designated order) made under this Act or any other legislation.
5. In addition, the Tribunal has power to impose a monetary penalty or fine in its general jurisdiction (as section s 38(3)(a)(ii) of the NCAT Act recognises) under various enabling Acts. Examples include: 1. s 147 of the Strata Schemes Management Act 2015 (NSW), under which the Tribunal may impose a monetary penalty of 10, 20, 50 or 100 penalty units depending on the circumstances; 2. s 302 of the Legal Profession Uniform Law (NSW), under which the Tribunal may impose a fine not exceeding $100,000; 3. s 47(2)(g) of the Architects Act 2003 (NSW). under which the Tribunal may impose a fine not exceeding 200 penalty units; 4. ss 97B and 97C of the Community Land Management Act 1989 (NSW), under which the Tribunal may impose pecuniary penalties up to 50 penalty units and 5 penalty units respectively. It can be noted that, under s 97E, those orders operate "as a judgment under the Civil Procedure Act 2005" despite anything to the contrary in s 78 of the NCAT Act.
6. In Attorney General v Mirror Newspapers [1980] 1 NSWLR 374 at 381, it was held that the Coroners Court was a court of record since, among other things, it had the power to punish for contempt committed in the face of the court.
7. It also is a long established principle that a new jurisdiction erected with power of fine and imprisonment is a court of record - Groenvelt v Burwell 1 Salk 200, 91 ER 179 (see also Blackstone's Commentaries on the Laws of England (1765 - 1769) Bk 3 Ch 3). The report of Groenvelt v Burwell is worth quoting in full: "By the charter of the College of Physicians, London, the censors are empowered to have the government of all persons practising physic in London, and within seven miles round, with authority to punish pro mala praxi by fine and imprisonment; and accordingly they condemned Dr. Groenvelt for administring insalubres pillulas & noxia medicamenta, and fined and imprisoned him; and the question was, whether a certiorari lay on such a judgment? Et per Holt, C.J. Wherever a power is given to examine, hear, and punish, it is a judicial power, and they in whom it is reposed act as judges: and wherever there is a jurisdiction erected with power to fine and imprison, that is a Court of Record, and what is there done is matter of record. 8 Co. 60, 38. This appears from the Stat. Westm. 2, c. 11, by which it is enacted, that auditors assigned by the lord may commit the party accountant to prison for arrears: and it is held, that the very lodging of this power in them made them Judges of Record: nulla curia quae recordum non habet potest mandare carceri. And whereas before that statute, in an action of debt for such arrears, the defendant might wage his law, since that statute he cannot, because they are a debt arising by matter of record."
8. Halsbury's Laws of England (2nd Ed) states that the erection of a court of record may be by implication from the fact that it has statutory powers to fine and imprison. The following is found at Vol 8, par 1169: "Courts of record are such as have been expressly made so by statute, or by implication of a statute, that is by having statutory power to fine and imprison, and courts of record at common law." (footnotes omitted)
9. This and related principles concerning courts of record were referred to more recently by French CJ and Gummow J in the High Court in Lane v Morrison (2009) 239 CLR 230 at [32] and [33]; [2009] HCA 29 as follows: '32 … Such a court [of record] has two relevant attributes. First, a court of record which is not created as a superior court nevertheless has the power to punish for contempt committed in the face of the court. … However, of that contempt power, the following statement in R v Taylor; Ex parte Roach is in point. Dixon, Webb, Fullagar and Kitto JJ said: 'By definition contempt is confined as an offence to courses of conduct prejudicial to the judicial power and does not extend to impairments of other forms of authority. Obstructions to the exercise of executive power, administrative power, legislative power or other governmental power are not within the conception of the offence of contempt of court.' 33 Secondly, the proceedings of a court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein. More generally, as Barton J put it in Waterside Workers' Federation of Australia v J W Alexander Ltd, in its usual acceptation the term 'court of record' identifies 'a body which has power both to make its determinations and to enforce them'." (footnotes omitted)
10. The reciprocal application of the principle was noted in K-Generation at [129] as follows: "Queensland also emphasised the apparent absence in the Licensing Court of a contempt power. Section 13 constitutes the Licensing Court as 'a court of record'. Subject to any particular provisions which might be found in the Act, that expression, if it stood alone, would carry with it a power to punish by fine or imprisonment any contempt committed in the face of the Licensing Court, but would carry no broader contempt power."
11. The creation of NCAT in 2014, with the nature, processes and functions established by the NCAT Act, means that the Tribunal is a new judicial decision-making body, a "new jurisdiction", erected with the power to punish for contempt in the face of the Tribunal and to imprison and fine. In the light of the principles referred to, it would be proper to conclude that the Tribunal is a court of record.
12. If this is so, it follows, from the Full Federal Court's decisions concerning functions under the RT Act when performed by courts, that the Tribunal, when performing those functions, is exercising judicial power, not executive or administrative power.

Conclusion on question (a) in each appeal

1. For all of the reasons given above, in determining the Johnson, Dibbin and Gatsby matters under the RT Act, the Tribunal was exercising judicial, not executive or administrative, power. As a consequence, question (a) of the separate questions should be answered as follows:

In the Johnson appeal Question: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/41349 and RT 15/44353: (a) because in doing so it was exercising administrative and not judicial power? Answer: NO

In the Gatsby appeal Question: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/56639: (a) because in doing so it was exercising administrative and not judicial power? Answer: NO

Question (b) - Is the Tribunal a court of a State for the purposes of Ch III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?

1. Since the answer to question (a) in each of the Johnson and Gatsby appeals is "no", it follows, for the reasons explained in Burns v Corbett, that the Tribunal did not, and does not, have authority to hear and determine the Dibbin, Johnson and Gatsby matters or the Johnson and Gatsby appeals, unless the Tribunal is a "court of a State" within Ch III of the Constitution. Consequently, we now turn to consider question (b), which expressly raises whether the Tribunal is a "court of a State" for the purposes of Ch III and s 39 of the Judiciary Act?

There is no authority binding on the Appeal Panel that NCAT is not a court of a State

1. No one submitted that there was authority that was binding on the Appeal Panel that required us, as a matter of precedent, to hold that the Tribunal is not a "court of a State". This is correct. In Burns v Corbett at [29], it is made clear that that issue was the subject of a position agreed between all parties. Consequently, the ratio decidendi of Burns v Corbett does not include a determination that NCAT is not a "court of a State" and Burns v Corbett does not lay down any binding legal rule concerning that issue - Coleman v Power (2004) 220 CLR 1 at [79]. A similar point was referred to by Leeming JA in Burns v Corbett, itself, at [89] to [90].
2. The Solicitor General did however submit, in more nuanced terms, in his written submissions: "The conclusion that the Tribunal is not a "court of a State" is consistent with existing authority that the Tribunal, like its predecessors, is not a "court of a State" for the purposes of Chapter III of the Constitution."
3. The Solicitor General's reference to "existing authority" appears to be a reference mainly to Burns v Corbett and earlier Court of Appeal decisions concerning the former Administrative Decisions Tribunal of New South Wales (the ADT) - Trust Company of Australia Limited v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185 (Skiwing), Sunol v Collier (2012) 81 NSWLR 619 at [8]; [2012] NSWCA 14 (Sunol) but note also Attorney General v 2UE Sydney Pty Ltd [2006] NSWCA 349; 236 ALR 385 (2UE). Two first instance decisions, Da Silva v Bresond Pty Ltd (2008) 71 NSWLR 556; [2008] NSWSC 158 and Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552, were also mentioned.
4. Although in Burns v Corbett Leeming JA said that the parties' agreement that NCAT was not a "court of a State" was "in accordance with authority", those authorities (Skiwing and Sunol) do not, as his Honour recognised, concern NCAT but related to the ADT.
5. In order to assess the applicability of the reasoning in those cases, particularly Skiwing, it is useful to understand something of the nature and functions of the ADT compared to those of NCAT. The ADT was just one of 22 tribunals and bodies effectively incorporated into NCAT on its creation on 1 January 2014. The principal function of the ADT was to conduct merits review of administrative decisions of the executive government, in accordance with Ch 5 of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act). These administrative review matters, which clearly involved the exercise of executive or administrative power, formed the majority of the ADT's caseload - Skiwing at [27] sixth dot point. In these circumstances, it is understandable that the ADT was considered to be an administrative, not a judicial, body. Despite being an administrative decision-making body, constitutional principles did not prevent the ADT, as a State body, from also exercising State judicial power, for example in matters under the Anti-Discrimination Act 1977 (NSW) and the Retail Leases Act 1994 (NSW).
6. On the creation of NCAT, the ADT and 21 other tribunals and bodies were abolished and NCAT in essence took over their jurisdiction and workload. As part of the reforms, the Administrative Decisions Tribunal Act was renamed the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) but the administrative review provisions of the old ADT Act were retained in Ch 3 of the renamed Act. Administrative review matters under the ADR Act are heard in NCAT but they account for only a very small percentage of NCAT's caseload (see the data in appendix 1 to these reasons). Many matters that are dealt with in NCAT are types of matters that were not dealt with by the former ADT.
7. NCAT matters that involve the exercise of judicial power but which were not dealt with by the former ADT include, without attempting to be exhaustive: 1. Residential tenancy and social housing matters. (It should be noted that both ordinary residential tenancies and social housing tenancies are governed by the RT Act). We have decided they involve the exercise of judicial power when considering question (a); 2. Consumer claims. They have been held in State Rail Authority of New South Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473 at 477-9 to involve the exercise of judicial power; 3. Agricultural tenancy matters. They can be seen to involve the exercise of judicial power by analogy with residential tenancy and retail lease matters; 4. Home building matters. They can be seen to involve the exercise of judicial power by analogy with consumer claims and general contractual claims; and 5. Motor vehicle matters. They can be seen to involve the exercise of judicial power by analogy with consumer claims and general contractual claims.
8. These matters constitute a significant majority of NCAT's caseload. (See the data in Appendix 1 to these reasons).
9. The non-administrative review matters that were dealt with by the former ADT were: 1. Retail lease matters. They have been held in Skiwing at [26] to involve the exercise of judicial power; 2. Anti-discrimination matters (sometimes called equal opportunity matters). They have been held in Burns v Corbett at [30] to involve the exercise of judicial power.
10. In addition, the statutorily defined portion of the parens patriae jurisdiction of the Supreme Court that is conferred on NCAT by the Guardianship Act 1987 (NSW) can also be seen as involving the exercise of judicial power, especially having regard to the Tribunal's judicial nature, functions and processes - see The Queen v Davison (1954) 90 CLR 353 at 367- 370 and note P v P (1994) 181 CLR 583 at 633-5.
11. If matters under the Guardianship Act are included, the overwhelming majority of all proceedings in NCAT involve the exercise of judicial power. (The relevant data supporting this conclusion is in Appendix 1 to these reasons).
12. Indeed, the name of this Tribunal reflects the fact that, unlike the ADT, NCAT was intended to be primarily a "Civil", and only secondarily an "Administrative", decision making body.
13. Accordingly, it cannot be assumed that the reasoning in Skiwing (and Sunol) concerning the ADT will be directly applicable to NCAT.
14. In so far as Da Silva v Bresond Pty Ltd (2008) 71 NSWLR 556; [2008] NSWSC 158 and Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 were also relied on, these were first instance decisions concerning the former Consumer, Trader and Tenancy Tribunal and the former Fair Trading Tribunal respectively. The issue was whether those bodies were a "court" within the meaning of particular statutes. We do not think they provide material assistance one way or the other. It is perhaps more significant that the Court of Appeal held that the Consumer Claims Tribunal, whose nature was considerably less court-like than NCAT's, was a court exercising judicial power in consumer claim matters - State Rail Authority of New South Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473 at 477-9. In that case, the Court of Appeal was not called on to consider whether that tribunal was a "court of a State" for constitutional purposes.
15. There is a further difference between the ADT and NCAT. As we explained earlier in these reasons, this Tribunal can be seen to be a court of record. The ADT was not. Nor did the ADT have contempt powers similar to those of this Tribunal. Whether a body is a court of record is a significant feature in this context - K-Generation at [85]. For this reason, the Court of Appeal decisions concerning the ADT can only be applied with caution in relation to NCAT. Leeming JA appears to hint at the significance of relevant differences in [29] of Burns v Corbett but did not take it further as "no party [in those cases] suggested that those differences warranted any different outcome or that this Court should not follow those decisions".

The parties' and the contradictor's submissions on whether NCAT is a "court of a State"

Solicitor General's submissions

1. The Solicitor General submitted that there were four approaches that could be used to determine whether a tribunal is a "court of a State" for the purposes of Ch III of the Constitution. He summarised them as follows: 1. "whether the tribunal is sufficiently independent and impartial". The submissions relied principally upon Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [41]; [2006] HCA 44 (Forge) and Attorney General (NT) v Emmerson (2014) 253 CLR 393 at [44]; [2014] HCA 13 (Emmerson); 2. "whether the tribunal is composed, or predominantly composed, of judges". The submissions relied upon Skiwing and the relevant paragraphs of the judgment in that case include [44] to [65]; 3. "the balance sheet approach". This approach was applied in Skiwing at [18] to [29] and [66]; and 4. "whether the tribunal is a court of record". The submissions referred to K-Generation at [85] and [221] and Owen at [10], [19], [48], [52] and [103].
2. Whichever approach was adopted, it was submitted the Tribunal was not a "court of a State".

Ms Johnson's Submissions

1. Ms Johnson did not directly address the question of whether NCAT is a "court of a State". Her submissions focused more on matters that were directly relevant to her substantive appeal. She noted that the NCAT Act requires the Tribunal to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". Ms Johnson submitted that the Tribunal should determine that it has authority to hear and determine her appeal, having regard to "good conscience" and the need to proceed "without regard to technicalities or legal forms".

The Contradictor's Submissions

1. The contradictor submitted in summary that: 1. the weight of recent High Court authority suggests that the touchstone of whether a decision making body is a "court of a State" must be the minimum requirements of independence and impartiality necessary to render the body an appropriate repository of Commonwealth judicial power; 2. the test relied upon in Skiwing - whether or not the body is predominantly composed of judges - is at worst a "chicken and egg" argument because it raises the question of what is a "judge" and at best is no more than another way of framing the independence and impartiality test. In the circumstances, it is erroneous and should not be followed; 3. the Queensland Court of Appeal decision in Owen v Menzies concerning QCAT provides useful guidance that is consistent with recent High Court decisions; 4. having regard to the independence and impartiality of the Tribunal, as explained in the authorities referred to, it should be concluded that it is a "court of a State"; 5. consideration of the "balance sheet approach" also supports that conclusion especially having regard to the judicial and adversarial characteristics of the Tribunal's proceedings, the Tribunal's power to punish for contempt and the availability of review and appeal in the Supreme Court.
2. We shall consider the answer to question (b) by reference to the four approaches put forward by the Solicitor General in his submissions.

The defining characteristics of a court in the context of Ch III

1. A "court of a State" can be invested with federal jurisdiction by the Commonwealth Parliament under s 77(iii) of the Constitution but other State bodies cannot. Such an investiture is effected, for example, by s 39(2) of the Judiciary Act 1903 (Cth). The defining characteristics of a "court" in this context have been the subject of a number of cases since Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 (Kable).
2. In North Australian Legal Aid v Bradley (2004) 218 CLR 146; [2004] HCA 31 (Bradley), McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ held at [29] that: "it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal."
3. Independence and impartiality mark a court apart from other decision-making bodies - Emmerson at [44]. They do not, however, constitute an exhaustive list of the defining characteristics of courts in this context - Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [67]; [2013] HCA 7 (Pompano).
4. In Pompano, French CJ explained as follows at [67], [68] and [72]: "67 The respondents invoke the general principle, established in decisions of this Court, that a State legislature cannot confer upon a court of a State a function which impairs its institutional integrity and which is therefore incompatible with the role of that court as a repository of federal jurisdiction. The "institutional integrity" of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision-making bodies. The defining characteristics of courts include: • the reality and appearance of decisional independence and impartiality; • the application of procedural fairness; • adherence as a general rule to the open court principle; • the provision of reasons for the courts' decisions. Those characteristics are not exhaustive. As Gummow, Hayne and Crennan JJ said in Forge v Australian Securities and Investments Commission: 'It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so.' 68 The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from Ch III of the Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function. Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it. Procedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances. Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters. … 72 While judgments as to validity will turn upon particular features of the impugned legislation, it is important to bear in mind that such judgments cannot be vehicles for imposing institutional uniformity on State judicial systems. The Parliaments of the States retain the legislative power to determine the constitution of their courts and the organisational arrangements through which those courts will exercise their jurisdiction and powers" (footnotes omitted)
5. In Kable, it was considered significant that impairment of a decision-making body's independence and impartiality would weaken public confidence in the institutions that comprise the judicial system brought into existence by Ch III - Kable at 107 to 108, 116 and 124. This is to be understood, however, as saying no more than that public confidence is an indicator, but not the touchstone, of invalidity of provisions which might impair institutional integrity - North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [40]; [2015] HCA 41 (NAAJA).
6. Whether the Tribunal meets the requirements of the defining characteristics of a court will depend largely on the proper construction of the legislative provisions that establish and govern the Tribunal. We have already examined above relevant provisions of the NCAT legislation concerning the judicial nature, functions and processes of the Tribunal. We now turn to consider each of the defining characteristics in more detail, in the light of the provisions of the NCAT Act already referred to and other provisions that relate to the Members and their protections and obligations.

Does the Tribunal meet the requirements of the defining characteristics of a court?

Decisional independence and impartiality

1. Decisional independence and impartiality are reflected in the principles concerning procedural fairness and natural justice - Bradley at [3] to [4] and South Australia v Totani (2010) 242 CLR 1 at [62]; [2010] HCA 39 (Totani).
2. Central to the concept of decisional independence, although not exhaustive of the concept, is independence from influences external to the proceedings in question, including, but not limited to, the influence of the executive government and its authorities - Totani at [62].
3. Impartiality is related to independence and principally requires the decision maker to be unbiased and to bring an unprejudiced or disinterested mind to the resolution of the issues in the proceedings. In the present context, the comments of Gaudron J in Ebner at [79] to [83] are informative.
4. Independence and impartiality are secured by a combination of institutional arrangements and safeguards - Forge at [43]. These may differ from court to court and not all are required in every kind of court - Forge at [37], [84] and [85]. In the case of the constitutionally recognised Supreme Courts of the States, these arrangements and safeguards have historically included removal only on limited grounds on an address of both Houses of Parliament to the Governor and remuneration fixed so that it cannot be reduced while the judge is in office - these types of arrangements are sometimes referred to as "Act of Settlement" tenure, see, for example, Forge at [73] - as well as the taking of the judicial oath, non-contributory pensions and other matters. In the case of courts that are subject to the supervisory and appellate jurisdiction of the Supreme Court, the arrangements and safeguards that applied to the Supreme Court have not always been thought to be necessary or appropriate to secure the independence and impartiality of those bodies - Forge at [84] and [85] and note, for example, the conclusion in K-Generation. As explained by Gummow, Hayne and Crennan JJ in Forge at [84], the independence and impartiality of inferior courts, or State courts other than the Supreme Court, was: "sought to be achieved and enforced chiefly by the availability and application of the Supreme Court's supervisory and appellate jurisdiction and the application of the apprehension of bias principle in particular cases".
5. In Forge at [36] and [37], Gleeson CJ observed that there are both institutional and personal aspects to judicial independence, and there is no single ideal model by which to achieve it. Substantially the same point was made by Gummow, Hayne and Crennan JJ in Forge at [74] and [75]. Tenure is an important aspect of the arrangements that support individual and personal aspects of judicial independence but it is only one of a number of aspects all of which have to be considered in combination. Gleeson CJ noted that for most of the twentieth century, many of the judicial officers who exercised federal judicial power, in particular State magistrates, were part of the State public service. Indeed, as was said by the then Chief Justice in Bradley at [4]: "…In New South Wales, Governor Phillip held a commission as a justice of the peace. From the foundation of that colony, stipendiary magistrates, as well as administering justice in summary proceedings, had extensive administrative responsibilities. Originally, they were organised as part of the colonial, and later State, public service. It was not until 1955 that new recruits to the New South Wales magistracy had to be legally qualified. In 1986, New South Wales magistrates were taken out of the public service, and given structural independence, including judicial tenure." (footnotes omitted) As such, magistrates could have been perceived before 1986 to have been under the control of the executive arm of government.
6. Thus, it is necessary for us to consider in combination all the arrangements and safeguards that apply to NCAT and its Members, both institutional and personal.
7. At the institutional level, the legislation that creates NCAT and confers on it decision-making functions establishes, as we have outlined above, that the Tribunal is intended to be an "independent", principally "civil", "primary-decision" making body that is to resolve issues "justly" with "processes that are open and transparent" so that "public confidence in tribunal decision making in the State and in the conduct of tribunal members" is promoted - NCAT Act s 3(a), (b)(i), (d), (f) and (g). The other provisions of the NCAT legislation are to be construed so as to promote these objects wherever possible.
8. We have already explained in some detail the provisions of the NCAT Act which require the Tribunal to act judicially, using judicial processes and procedures. In addition, the obligation on the Tribunal to act independently and impartially is made explicit by s 38(2) of the NCAT Act, which expressly subjects the Tribunal to the "rules of natural justice".
9. The institutional and decisional independence and impartiality of the Tribunal are enhanced and enforced by the availability and application of the Supreme Court's judicial review and appellate jurisdiction - s 69 of the Supreme Court Act 1970 (NSW) and ss 34, 82 and 83 of the NCAT Act and the other rights of appeal in the Division Schedules of the NCAT Act. This is supplemented by the appellate function of the Appeal Panel, exercised to correct legal and other errors, in accordance with ss 32, 80 and 81 of the NCAT Act.
10. There is no provision in the legislation by which the Tribunal is created and governed which would absolve any Member from the requirement in all cases to decide matters independently and impartially, that is, free from external influence and with an unbiased and disinterested mind.
11. Any Tribunal decision affected by actual or apprehended bias or by influences external to the proceedings in question would be liable to be set aside on appeal or judicial review. Indeed, the development and application of the apprehended bias principle ensures that the fundamental importance which is attached to the principle that a court must be independent and impartial is given effect to, in the case of the Tribunal as in the case of New South Wales courts generally - Forge at [66].
12. The rights of appeal and judicial review are rendered effective and meaningful by the requirement that the Tribunal give reasons for its decisions. These reasons, written or oral, must refer to the evidence, make findings on material questions of fact, state the Tribunal's understanding of the law and explain the reasoning processes that led the Tribunal to its conclusions - see s 62 and cl 11 of Sch 6 of the NCAT Act concerning specifically written reasons and, more generally, Collins v Urban [2014] NSWCATAP 17 at [44] to [64].
13. At the level of the personal independence and impartiality of Members of NCAT, these are achieved or reinforced by a number of provisions in the NCAT legislation which protect Members in the performance of their duties from interference or influence from extraneous bodies or considerations. These include: 1. Members are statutory office holders appointed by the Governor or the Minister, not members of the Public Service or employees of any emanation of the executive - cl 14(1) of Sch 2 to the NCAT Act and see also ss 9, 10, 11, 12, 15 and 21; 2. Members have, in the exercise of functions performed as a Member, the same protection and immunities as a Judge of the Supreme Court - cl 4 of Sch 2 to the NCAT Act; 3. Members have, in the exercise of their functions, the protections afforded by the law relating to contempt in the face of the Tribunal - s 73(1) and (2) of the NCAT Act; 4. Members' remuneration, determined by the Minister, may not be reduced during a Member's term of office - cl 5(3) of Sch 2 to the NCAT Act; and 5. Members are protected from arbitrary removal in that the Governor may remove a Member (other than the President) from office on the specified grounds of incapacity, incompetence or misbehaviour - cl 7(2) of Sch 2 to the NCAT Act - and the President can only be removed on an address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity - cl 6(1) of Sch 2 to the NCAT Act.
14. Moreover, the Member Code of Conduct (the latest version of which is dated 28 August 2014 and published on the NCAT website), developed and issued by the President under s 20(d)(i) of the NCAT Act, expressly requires all Members, among other things: "to make unbiased, impartial decisions … apply the law equally and act in an impartial manner in the performance of their decision making functions so that their actions do not give rise to a legitimate apprehension of bias or amount to actual bias" and "to perform their duties independently, free from external influence and free from fear of adverse consequences".
15. Compliance with that Code is a matter that may be relevant to the President exercising his functions under s 20(e).
16. When all of the arrangements and safeguards identified above are considered together with the general provisions concerning NCAT's nature, functions and processes, it can legitimately be concluded that the Tribunal has the necessary independence and impartiality to make it an appropriate repository for federal jurisdiction and a "court of a State" for the purposes of Ch III of the Constitution. The Solicitor General has contended that this is not so. Consequently, we shall consider whether the five matters identified by the Solicitor General in his written submissions should lead us to reach the opposite conclusion.
17. First, it was submitted that a matter that supported the conclusion that the Tribunal lacked the necessary characteristics was that Members, other than the President, could be removed by the Governor for "incapacity, incompetence or misbehaviour" under cl 7(2) of Sch 2 to the NCAT Act. The submission was put in this way: "First, while the President of the Tribunal cannot be removed from office except by the Governor on an address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity and in accordance with the applicable provisions of Parts 7 and 8 of the Judicial Officers Act 1986 (see Schedule 2, cl 6(1) of the NCAT Act, a member other than the President may be removed from office by the Governor for incapacity, incompetence or misbehaviour: Schedule 2 of the NCAT Act, cl 7(2). In Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 at [233] Kenny J commented that in order for a body to be a "court of a State" "there must be some legislative or constitutional provision for tenure of some kind, precluding removal from office merely because the executive desires it". There is no such provision for members of the Tribunal."
18. We do not accept this contention. Clause 7(2) of Sch 2 of the NCAT Act is a legislative provision that specifies three grounds on which the Governor may remove an NCAT Member, other than the President. In the light of the object in s 3(a) of establishing an "independent" tribunal and the NCAT Act as a whole, we are of the view that cl 7(2) should be construed as precluding the removal of Members on any ground other than the three specified. It follows that removal merely because the executive desires it is precluded. Accordingly, there is a provision for Members of the Tribunal, other than the President, that meets the description of a "legislative or constitutional provision for tenure of some kind, precluding removal from office merely because the executive desires it".
19. In addition, if it is submitted that only removal "by the Governor on an address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity and in accordance with the applicable [legislative provisions relating to Supreme Court judges]" is sufficient to ensure the necessary independence and impartiality, this appears to be inconsistent with what the High Court has said, for example in Forge at [83] to [85] and in other cases concerning inferior courts, for example Spratt v Hermes (1965) 114 CLR 226 at 272; [1965] HCA 66. It is also not supported by Kenny J's reasoning in Commonwealth v Anti-Discrimination Tribunal (Tasmania).
20. In that case, Kenny J acknowledged (at [232] and [233]) that the High Court's decision in Forge probably did not support a general proposition applicable to all courts and decision-making bodies. Her Honour was prepared to accept, although in somewhat tentative terms at [233], that: "a tribunal that owes its existence to a Ministerial determination under a modern statute, the members of which may be removed at any time by the Minister at will, is unlikely to be a "court of a State" within s 77(iii) of the Constitution. In order to be a 'court of a State' for this purpose, there must be some legislative or constitutional provision for tenure of some kind, precluding removal from office merely because the executive desires it".
21. The particular circumstances that her Honour was considering are set out at [235] as follows: "The Anti‑Discrimination Act contains no provision concerning the tenure of members of the Tribunal, or providing for their removal. … Accordingly, since, by virtue of s 12(1)(b) and (c) of the Anti‑Discrimination Act, the responsible Minister has the power to appoint the members of the Tribunal, by virtue of s 21(1)(a) of the Acts Interpretation Act 1931 (Tas), he or she has the power to remove them at will. The absence of any provision as to tenure compromises the institutional independence of the Tribunal."
22. From this it can be seen that Kenny J was dealing with a tribunal that "owes its existence to a Ministerial determination" and whose members could be removed at will by the minister. NCAT is not such a tribunal. NCAT owes its existence to statute, one of whose objects is to establish an "independent" decision making body. NCAT's Members, other than the President, can be removed by the Governor under cl 7(2) of Sch 2 on the specified grounds of "incapacity, incompetence or misbehaviour", not at will. In our view, the protection afforded by cl 7(2) of Sch 2 to the NCAT Act falls within the types of tenure referred to by her Honour.
23. In addition, the protection against arbitrary removal provided by cl 7(2) is enhanced by the fact that improper exercise of that power of removal could be challenged in the Supreme Court for bad faith and improper purpose as well, presumably, as other grounds of jurisdictional error - applying K-Generation at [116] and Bradley at [59]. In addition, any improper exercise of the power may attract the operation of the Independent Commission Against Corruption Act 1988 (NSW).
24. For all of these reasons, we do not believe that the first matter identified in the Solicitor General's written submissions should lead us to conclude that NCAT lacks the necessary independence and impartiality to be a "court of a State".
25. Secondly, the Solicitor General submitted that the fact that term members of the Tribunal are appointed for a term of up to 5 years and are eligible for reappointment, under cl 2 of Sch 2 to the NCAT Act, indicates that the Tribunal does not meet the requisite standard of independence.
26. The submission relied upon the Victorian Court of Appeal's comment in Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 (Sudi) at [201] that "the appointment of members for renewable terms means that there is a perception that the body is 'comprised of members who are beholden to the government, and therefore not independent'".
27. At [201] in Sudi, Weinberg JA said the following: "VCAT is, of course, an independent statutory body. Nonetheless, it is a fact that its members, apart from the President and Vice-Presidents, do not enjoy judicial independence. They have nothing remotely approaching the tenure conferred by provisions modelled upon the Act of Settlement 1700 (UK). Non-judicial members are appointed for fixed terms, and of particular concern is the fact that they are eligible for re-appointment. As a consequence, there will always be a perception that VCAT as a whole is comprised of members who are beholden to the government, and therefore not independent. I should emphasise that this is a matter of perception. I do not intend to suggest in any way that members of VCAT act other than with complete integrity in the discharge of their functions." (footnote omitted)
28. "Act of Settlement" tenure for members is not necessary for a body to be a "court of a State" - see for example Bradley at [3] and [5], Forge at [36] and [83] to [85]. To the extent that Sudi at [201] suggests to the contrary, it would not be appropriate to accept it. Further, the chief characteristics of "Act of Settlement" tenure are "appointment during good behaviour and protection from diminution in remuneration" - Forge at [82] and note also [73]. NCAT Members enjoy both of those characteristics as a result of the operation of cll 7(2) and 5(3), respectively, of Sch 2 to the NCAT Act. Thus, the situation of NCAT is quite unlike the situation before the Court in Sudi where the members were said to "have nothing remotely approaching the tenure conferred by provisions modelled upon the Act of Settlement 1700 (UK)." Accordingly, the reasoning in Sudi is not directly applicable to NCAT.
29. Weinberg JA's conclusion concerning the lack of the required independence of VCAT members turned, however, not only on the lack of "Act of Settlement" tenure but also on the renewability of their term appointments.
30. The effect of renewability of a term or temporary appointment on independence was considered in Forge. In that case, it was held that appointment of acting Judges of the Supreme Court of New South Wales for short, limited terms did not mean that the Court lacked the required independence and impartiality. This was so notwithstanding the fact that a perception similar to that identified in Sudi could also have arisen in Forge. Gleeson CJ dealt with that issue in Forge at [44] as follows: "This consideration [renewability of temporary appointment] must be evaluated in the wider context mentioned in the preceding paragraph [other institutional arrangements and safeguards]. There are aspects of the position of many permanent judges that could raise questions of at least as much significance. Consider, for example, the matter of judicial promotion. Judges are commonly promoted (by executive governments) within courts or within the judicial hierarchy. Such promotions may involve increased status and remuneration. Throughout the history of this Court, most of its members have arrived here by way of promotion. There may be some people who would say that could erode independence and impartiality. There may be permanent judges for whom judicial promotion would have at least as much attraction as an opportunity to spend another year as an acting judge would have to a 73 or 74 year old former judge. The usual response to such concerns is that a ban on judicial promotion would result in inflexibility and inconvenience; and that the independence and impartiality of judges is shored up by so many systemic and personal factors that this is not, in practice, a decisive objection. The same may be said of the renewability of Foster AJ's appointments. It is not a matter to be dismissed lightly, but in the wider context it is not decisive. It is difficult to legislate against the pursuit of self-interest, and neither s 72 of the Constitution nor any State or federal Act seeks to do so. A permanent judge with prospects of advancement might be seen by some observers as being at least as likely to seek to please the executive as a temporary judge with prospects of re-appointment. Issues such as these are generally dealt with by standards of professional behaviour, not legislative prescription. As the Attorney-General of Queensland pointed out in written submissions, ultimately what stands between any judge and the temptation of executive preferment is personal character."
31. As Gleeson CJ points out, the perception identified in Sudi as "always" arising in respect of appointees with a renewable term can be seen as similarly arising in respect of every permanent judge with prospects of advancement. If the Victorian Court of Appeal's approach were applied in those circumstances, there might be very few, if any, State courts that fall within the constitutional concept of a "court of a State". The comments of Heydon J in Forge at [275] also suggest that renewable appointments should not be seen as necessarily compromising independence and impartiality.
32. As far as we are aware, there is no High Court authority to the effect that term appointments, with the potential for reappointment, always or even generally, lead to the perception of a lack of independence so as to deprive a body of the requisite independence and render it ineligible to be a "court of a State". We do note that it has been held that, for State legislatures establishing bodies that are "courts of a State", there is room for legislative choice in relation to tenure, and this includes the choice to have appointments for "fixed, renewable terms" - Bradley at [3]. In addition, the High Court has sounded a significant warning concerning reliance upon public perception. In NAAJA at [40], French CJ, Kiefel and Bell JJ said: "It has not been established, and the plaintiffs did not argue, that public confidence in the courts is a touchstone of invalidity. In Momcilovic v The Queen, Gummow J said that attention to matters of perception and public confidence as distinct and separate sufficient considerations is apt to mislead. There are statements in Kable indicating that the jurisdiction conferred on State courts must not damage public confidence in them, but it has been said on many occasions since Kable that public confidence is an indicator, but not the touchstone of invalidity; the touchstone of invalidity concerns institutional integrity. That touchstone extends to maintaining the appearance as well as the realities of impartiality and independence of the courts from the executive. Those criteria may be seen as necessary to the maintenance of public confidence in the judicial system. That is not the same as saying that it is necessary or appropriate to use an imputed effect upon "public confidence" to infer that a law impairs the institutional integrity of a court." (footnotes omitted)
33. The correct position appears to us to be that tenure is only one of a number of aspects all of which have to be considered in combination when determining whether a body has the requisite independence to be a "court of a State" - Forge at [37], [74] and [75]. Gleeson CJ in Forge at [13] and [37] identified the essence of the required tenure as that referred to by the Supreme Court of Canada in Valente v The Queen [1985] 2 SCR 673 at 698 as follows: "tenure, whether until an age or retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner".
34. The requisite independence and impartiality can be secured by a combination of institutional safeguards and arrangements, including: 1. in the case of inferior courts, being subject to the supervisory and appellate jurisdiction of the Supreme Court; and 2. the particular legislative provisions governing the body in question, such as, without being exhaustive: provisions that protect members from arbitrary removal, ensure that remuneration cannot be reduced while in office, protect members from liability for conduct in the performance of their duties and expressly establish the independent status of the body; the requirement to comply with the rules of natural justice; and, the duty to act in public and to give reasons for decisions and thus be transparent and open to scrutiny, although not all types of safeguards and arrangements are necessary in every type of court - see for example Forge at [43], [74], [75], [83]-[85].
35. Having regard to the principles stated by the High Court, the institutional safeguards and arrangements that apply to NCAT and the Tribunal's other relevant circumstances referred to in these reasons, we do not believe that the fact that NCAT Members' have terms of up to five years that may be renewed establishes that NCAT lacks the requisite independence and impartiality.
36. We find some support for this view in the decision of the Queensland Court of Appeal in Owen v Menzies. Substantially the same reasoning as was adopted in Sudi was put in submissions in Owen v Menzies and was expressly rejected by the Chief Justice at [15(6)]. The submission was in the following terms: "The President, the Deputy President, senior members and ordinary members of the Tribunal "serve relatively short terms in office meaning that they do not enjoy security of tenure in office", raising a perception they may need to persuade the executive government that they should be reappointed at the conclusion of their terms." de Jersey CJ held: "The appointment of judicial officers for fixed terms does not deny their court that character. In Forge v Australian Securities and Investments Commission, supra, p 59 Gleeson CJ referred to the reference by Le Dain J in Valente v The Queen [1985] 2 SCR 673, 698 to 'tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner'. Other matters aside, the availability of judicial review in relation to the process of removal under the QCAT legislation ensures that protection, should it become necessary."
37. The President of the Queensland Court of Appeal agreed with the Chief Justice's reasons (at [52]) as did Muir JA (at [103]). In addition, the President's reasoning at [49] included the following: "Its [QCAT's] independence is not jeopardised solely because the majority of its judicial officers are part-time and do not have the same financial security or security of tenure enjoyed by Queensland magistrates and District and Supreme Court judges: North Australian Aboriginal Legal Aid Service Inc v Bradley [(2004) 218 CLR 146, 159-173 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ)]."
38. Accordingly, it would be wrong to conclude that NCAT Members' renewable terms of up to five years indicates that the Tribunal is not sufficiently independent or impartial to be a "court of a State".
39. Thirdly, in his written submissions, the Solicitor General submitted that the Tribunal did not have the necessary characteristics of independence and impartiality on the basis that: "… while a "presidential member" … is to be appointed by the Governor by commission under the public seal of the State, non-presidential members are to be appointed by the Minister by written instrument: s 10(2)-(3) of the NCAT Act. Furthermore, the President of the Tribunal has a delegable power to appoint occasional members: s 11 of the NCAT Act."
40. No authority was cited in support of this submission. Appointment of members of courts by the executive is the usual, if not the invariable, practice in Australia. It is difficult to perceive that there is any difference in substance between appointment by the Governor, on the advice of a Minister, and appointment by a Minister. In both cases, it is appointment by the executive arm of government. The submissions did not include any example or elaboration of how appointment of NCAT Members by the Minister and not the Governor should lead to the conclusion that NCAT lacked the requisite independence and impartiality. Having regard to the institutional safeguards and arrangements applicable to NCAT and its Members, we do not believe their particular mode of appointment would justify our concluding that NCAT lacks the required independence and impartiality.
41. As to appointment of occasional Members by the President under s 11 of the NCAT Act, this mode of appointment must be considered in the context of the relevant provisions of the NCAT Act and of the enabling legislation. In proceedings under the National Law, the Tribunal must be constituted with: 1. a Member assigned to the Occupational Division of the Tribunal who is an Australian lawyer of at least 7 years' standing or, in the case of proceedings concerning a medical practitioner, a senior judicial officer - s 165B(2)(a) of the National Law; 2. two occasional Members who are health practitioners and members of the same profession as the person the subject of the proceedings - s 165B(2)(b); 3. one occasional Member who is lay person from among a panel of lay persons for the time being nominated by the Minister for Health - s 165B(2)(c).
42. To allow this to occur, s 11(1) of the NCAT Act permits the President to appoint occasional Members, if they are qualified for the relevant type of membership and he is "satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings". This power can be delegated under s 11(2) to a Division Head or a List Manager. Section 11 is, thus, the means by which the Tribunal can be properly constituted as required in particular types of matters. The ability to delegate the function to a person such as the Health Practitioner List Manager has obvious efficiencies.
43. It should be noted that the participation of occasional Members is subject to the operation of s 57, which has been explained above and which ensures that decisions on questions of law are made only by the Member who is an Australian lawyer of at least 7 years' standing or a senior judicial officer, in matters under the National Law.
44. The appointment of occasional Members can be seen as a means of involving appropriate professional and lay participation in the Tribunal's decision-making without compromising the independence and impartiality of the Tribunal. It is analogous to the participation of juries in courts' decision making processes, although it obviously differs in the mechanism used.
45. In these circumstances, we do not accept that the mode of appointment of non-presidential Members under s 10 of the NCAT Act or the ability to appoint occasional Members under s 11 justifies the conclusion that NCAT lacks the necessary independence and impartiality to be a "court of a State".
46. Fourthly, the Solicitor General submitted in effect that we should hold that NCAT lacked independence and impartiality because 'there does not appear to be any provision for non-presidential members … to be required to take an oath".
47. Although it is very common for judges and other judicial officers to take an oath, no specific adverse consequences which might flow from the absence of a provision for non-presidential NCAT Members to be required to take an oath were identified. When all relevant institutional safeguards and arrangements that apply to NCAT and its Members are considered, there is nothing to suggest that the apparent absence of such a provision means that the Tribunal lacks the requisite independence and impartiality to be a "court of a State".
48. Furthermore, it appears to us that s 9(1) of the Oaths Act 1900 (NSW) may be a provision under which non-presidential NCAT Members can be required to take an oath or oaths. Section 8 of the Oaths Act requires Judges of the Supreme Court and Justices of the Peace to take the oath of allegiance and the judicial oath. Section 9(1) provides that "[t]he oath of allegiance and the judicial oath shall be tendered to and taken by District Court Judges, Magistrates and other judicial officers who are required by order of the Governor to take the same." The expression "other judicial officers" in s 9(1) is not defined. The express identification of Supreme Court Judges, District Court Judges, Magistrates and Justices of the Peace in ss 8 and 9 indicates that the words "other judicial officers" refer to persons other than those identified. On their natural meaning, those words apply to persons who are officer holders and who exercise judicial power. Thus, the reference to "other judicial officers" can be construed as including persons who hold a statutory office as a Member of NCAT and who, in carrying out their functions as Members, exercise judicial power. In this way, non-presidential Members of the Tribunal could be said to fall within s 9(1) of the Oaths Act. If this is so, non-Presidential Members of NCAT could be required to take the oath of allegiance and the judicial oath, if so required by order of the Governor.
49. Fifthly, the Solicitor General contended that a further factor indicating that NCAT was not a "court of a State" was that the remuneration of NCAT Members who are not Judges or magistrates is not set by an independent tribunal but by the Minister under cl 5(1) of Sch 2 to the NCAT Act. The submission acknowledged that cl 5(3) prevents the Minister from reducing the remuneration of a Member during the Member's term of office.
50. No authority was relied upon in making this submission. As we have observed already, as far as remuneration is concerned, the relevant chief characteristic of "Act of Settlement" tenure is "protection from diminution in remuneration" - Forge at [82]. Clause 5(3) of Sch 2 to the NCAT Act provides NCAT Members with such protection. Remuneration being set by "an independent tribunal" is not, as far as we are aware, a factor which the High Court has found to be a determinative factor in establishing whether the body has the required independence and impartiality to be a "court of a State".
51. In this regard, some guidance might be derived from s 72(iii) of the Constitution, concerning federal judges. That section relevantly provides: "The Justices of the High Court and of the other courts created by the Parliament: … (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office."
52. From this it follows that the remuneration of High Court Justices and federal judges is not set by an independent tribunal but by Parliament. That, of course, does not prevent the Parliament seeking advice, and choosing to adopt recommendations, from such a body from time to time as it sees fit. In light of this, it would be an unlikely requirement that for a body to be a "court of a State" its members' remuneration would have to be set by an independent tribunal.
53. Accordingly, we do not accept the submission that this fifth matter raised by the Solicitor General indicates that NCAT is not a "court of a State".
54. Finally, even taking all five matters together, we do not believe that they indicate that NCAT lacks the necessary independence and impartiality.
55. For these reasons, we are of the view that NCAT does satisfy the first defining characteristic for a "court", or a "court of a State", within Ch III, namely the perception and reality of independence and impartiality. We now turn to consider the remaining characteristics identified by French CJ in Pompano at [67].

The application of procedural fairness

1. Procedural fairness, in this context, is manifested in the requirements that the body in question be and appear to be impartial and that parties be heard by the body in question. It is defined by practical judgments about its content and application which may vary according to the circumstances - Pompano at [68].
2. The requirement that bodies exercising federal judicial power must apply procedural fairness is not met if the body is deprived of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually applied in the relevant type of proceedings, requires notice be given to the party affected before an order is made - International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 at [56]; [2009] HCA 49.
3. The Tribunal is expressly bound to apply the rules of natural justice by s 38(2) of the NCAT Act. Members' decision-making must be impartial, unaffected by actual or apprehended bias, and parties must be given notice of the case against them and the opportunity to lead evidence and be heard.
4. The general requirement to comply with the rules of natural justice is reinforced and supplemented, in NCAT's case, by ss 38(5) and 50 of the NCAT Act.
5. Section 38(5) provides: "(5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
6. These provisions, especially s 38(5)(c), serve to ensure that the Tribunal accords procedural fairness to all parties.
7. Section 50 is directed to achieving a similar end by requiring the Tribunal to hold an oral hearing in all matters on all questions, except when deciding whether to grant leave for an external or internal appeal, when the Tribunal has made an order dispensing with an oral hearing and some other limited situations - s 50(1). An order dispensing with such a hearing can only be made if the Tribunal has first: 1. afforded the parties an opportunity to make submissions about the proposed order, and 2. taken any such submissions into account, and the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties - s 50(2) and (3).
8. In these circumstances, it is proper to conclude that the Tribunal possesses the requisite characteristic of applying procedural fairness.

Adherence as a general rule to the open court principle

1. The open-court principle is another essential aspect of the characteristics of courts that are a "court of a State" or otherwise exercise federal jurisdiction - Pompano at [67]. Its significance in this context is perhaps best understood as providing, among other things, a visible assurance of independence and impartiality - Totani at [62]. This aspect, like other aspects of the defining characteristics of a court for the purposes of Ch III, is not, however, absolute. French CJ observed in Pompano at [68]: "Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it. … Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters." (footnote omitted)
2. NCAT is expressly subject to the open-court principle. Section 49 provides: "(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason."
3. This section puts beyond doubt that the Tribunal satisfies the characteristic that it adheres as a general rule to the open court principle. The discretion conferred by s 49 to order "otherwise" must be exercised according to law, within the limits set by the subject-matter, scope and purpose of the NCAT Act - Minister for Immigration and Citizenship v Li [2013] HCA 18 at [90]. Relevant considerations would include public interest factors such as the protection of sensitive information and of the identities of vulnerable witnesses, such as children.

The provision of reasons for decisions

1. In Pompano at [67], French CJ identified the provision of reasons for decision as a further defining characteristic of a "court" in the constitutional context. Giving public reasons for final and important interlocutory decisions is central to the judicial function - Wainohu v New South Wales (2011) 243 CLR 181 at [54]; [2011] HCA 24 (Wainohu). Nevertheless, it should be borne in mind that Gibbs CJ observed in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7 (Osmond) that there was no "inflexible rule of universal application" that reasons be given for judicial decisions but the Chief Justice did accept that the requirement to give reasons is "an incident of the judicial process" - Osmond at 666-7.
2. French CJ and Kiefel J provided a useful discussion of the role of reasons for decision as a defining characteristic of a court in Wainohu at [54] to [58].
3. In Thorne v Kennedy [2017] HCA 49 at [61], Kiefel CJ, Bell, Gageler, Keane and Edelman JJ acknowledged the centrality of reasons to the judicial function but noted: "The content of that judicial duty to give adequate reasons will depend upon the circumstances of the matter being considered. Importantly, it is not necessarily the case that reasons be lengthy or elaborate in order to be adequate."
4. NCAT Members are under a duty to give parties notice of every decision made and to provide a written statement of reasons for every decision, on request, under s 62 of the NCAT Act. That section provides: "(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party."
5. In most matters in the Guardianship Division of the Tribunal, written reasons are also required under cl 11 of Sch 6 to the NCAT Act. Enabling legislation may also require the giving of written reasons, see for example s 165M of the National Law.
6. In addition, Members are generally under a duty to give reasons, oral or written, for decisions made in the Tribunal - Collins v Urban [2014] NSWCATAP 17 at [44] to [64].
7. In NCAT's case, the provisions establishing the obligations to give reasons are to be construed in the light of the objects in s 3(e), (f) and (g): "(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members."
8. A restrictive construction of s 62 which limited the obligation on Members to give any reasons, written or oral, to situations where a request for a written statement of reasons was made within 28 days of a decision would: 1. fail to give weight to the fact that, while s 62(2) is confined to written statements of reasons, s 62(4) expressly envisages that the Tribunal can, and perhaps should, in many cases give oral reasons; 2. hinder rather than promote the objects in s 3(e), (f) and (g); 3. be inconsistent with Collins v Urban.
9. In all the circumstances, we believe it is not open to doubt that the Tribunal meets the defining characteristic of providing reasons for its decision.

Conclusion on whether NCAT meets the defining characteristics

1. There may be a degree of overlap between the four defining characteristics for a "court" for constitutional purposes identified by French CJ in Pompano. In addition, we bear in mind that his list is not necessarily exhaustive.
2. The parties' submissions, in this regard, focused upon independence and impartiality, perhaps because the other three characteristics should be seen as supporting independence and impartiality rather than being entirely separate and independent characteristics in their own right. Notwithstanding this and in deference to what has been said by the High Court in Pompano at [67] and elsewhere, we have thought it proper to consider each of the four characteristics separately, as set out above.
3. In summary, in our view the Tribunal is and can properly be seen to be institutionally independent and impartial. It is required to accord procedural fairness, adhere to the open court principle and give reasons for its decisions, subject only to such exceptions as practical justice requires. Members of the Tribunal are statutory office holders who predominantly exercise judicial power and are protected from arbitrary removal and from reduction in their remuneration while in office. Their personal independence and impartiality are further enhanced by the other protections and immunities set out in the NCAT Act, especially in Sch 2. The practical assurance of the Tribunal's independence and impartiality is found in the availability of recourse to the supervisory jurisdiction of the Supreme Court on appeal or by way of judicial review, as well as the other rights of appeal from NCAT decisions.
4. None of the five matters specifically raised by the Solicitor General, either separately or in combination, indicates that the Tribunal lacks the requisite independence and impartiality.
5. On this basis, the Tribunal should be held to be a "court of a State" within the meaning of Ch III of the Constitution. Thus, question (b) in each of the Johnson and Gatsby appeals should be answered: Yes.

Other submissions concerning whether NCAT is a "court of a State"

1. The conclusion in the preceding paragraph is sufficient to dispose of question (b). The Solicitor General, however, submitted that there are other principles or tests that could be applied to determine whether NCAT was a "court of a State" and that these principles or tests all indicated that NCAT was not such a court. Consequently, we now consider: 1. the principle enunciated in Skiwing at [44] to [65] that to be a "court of a State" a body must be composed, or predominantly composed, of "judges"; 2. the "balance sheet approach" - see Skiwing at [18] to [29] and [66]; and 3. whether the Tribunal is a court of record, which was held to be most significant in K-Generation at [85] and [221] and Owen at [10], [19], [48], [52] and [103].

Skiwing - a "court of a State" a body must be composed, or predominantly composed, of "judges"

1. Skiwing was a decision of the Court of Appeal concerning the former ADT. The significant differences between the ADT and NCAT mean that the decision is not binding on us. Nonetheless, we should consider whether the reasoning in that case is persuasive and should be applied by us in the present matters.
2. A number of relevant propositions can be derived from Skiwing including: 1. "court of a State" must be understood as a constitutional expression - at [44]; 2. a "court of a State" within s77(iii) can exercise non-judicial powers of a kind that could not be exercised by a federal court - [47]; 3. such a court must "be and appear to be an independent and impartial tribunal" - [48].
3. None of these was in dispute before us. In our view, they tend to support the conclusion that NCAT is a "court of a State", for reasons already stated.
4. The proposition that the Solicitor Generally particularly relied upon was, however, that found in Skiwing at [49] and [50], which can be paraphrased as: in order for federal jurisdiction to be permissibly conferred upon it, a "court of a State" must - exclusively, or at least predominantly - be constituted by judges in substance, if not actually called judges or magistrates.
5. This is in substance the same as one of the premises concerning what constitutes a "court" referred to in Forge at [73], where Gummow, Hayne and Crennan JJ said: "it is a conclusion that proceeds from an unstated premise about what constitutes a "court". Thus, the conclusion may proceed from a premise that a court, or at least the Supreme Court, of a State must principally be constituted by permanent judges (who have tenure of the kind for which the Act of Settlement provided: appointment during good behaviour for life, or, now, until a set retirement age, with no diminution of remuneration during tenure). Or the conclusion may proceed from a premise that is stated at a higher level of abstraction: that the courts, and in particular the Supreme Court, of a State must be institutionally independent and impartial. The first statement of the premise may be seen as focusing upon quantitative considerations. On what terms are most of the judges appointed? The second statement of the premise may be seen as pointing to qualitative rather than quantitative considerations. But both statements of the relevant premise rest ultimately upon considerations of the fact and appearance of institutional independence and impartiality." (Footnote omitted)
6. That "quantitative" premise is, as far as Gummow, Hayne and Crennan JJ are concerned, applicable to the Supreme Courts of the States. It may not be more widely applicable. Nonetheless, it appears clear from what the plurality said that it "rest[s] ultimately upon considerations of the fact and appearance of institutional independence and impartiality".
7. At [49] of Skiwing, Spigelman CJ made the same point in the following terms: "The Solicitor General for the Commonwealth relied on Bradley for the proposition that in order to be a "court of a State" within s77(iii), the State statute must provide sufficient guarantees that the tribunal is, and appears to be, independent and impartial. For present purposes it is sufficient to conclude that, in order for federal jurisdiction to be permissibly conferred upon it, a "court of a State" must - exclusively, or at least predominantly - be constituted by judges."
8. Exactly what was meant by the words in Skiwing at [49] "[f]or present purposes it is sufficient to conclude …" is somewhat unclear.
9. In addition, we have not found it possible to derive definitive guidance from what is said at [49] and [50] of Skiwing because, although it was concluded that membership of the ADT was "not predominantly composed of judges" (at [65]), the judgment did not explain the specific factors taken into account to reach that conclusion. It cannot have been simply that most ADT members were not called "judges" or "magistrates", as that would be inconsistent with what was said at [50].
10. In all the circumstances, it appears to us that a fair reading of [49] and [50] of Skiwing in context requires, when assessing whether a body is composed predominantly of "judges in substance", a consideration of whether the decision-makers who compose that body have the required institutional and personal independence and impartiality, as described by the High Court in cases such as Bradley, Forge, Pompano and K-Generation. Decision-makers who satisfy those requirements should be found to be "judges in substance" for this purpose.
11. On the basis of this understanding of [49] and [50], the relevant matters include all those which we have considered when dealing above with the institutional and personal independence and impartiality of NCAT and its Members. It is not necessary to repeat them here. It is sufficient to recall that NCAT Members are statutory office holders whose predominant function, unlike that of ADT Members, is to exercise judicial power. They are protected from arbitrary removal by the executive. Their remuneration is protected from reduction during the term of office. They are required to decide all matters in accordance with law in a manner that complies with the rules of natural justice by processes which are procedurally fair and judicial in nature and description. They are required to conduct proceedings generally by way of public, open hearings and to explain their decisions in written or oral reasons. Their independence and impartiality is ensured or enforced by the other protections in the NCAT Act and the availability of judicial review in the Supreme Court of all their decisions, and by the appeal rights to the Supreme Court, other courts, or the Appeal Panel of the Tribunal. If the principle that can be derived from [49] and [50] of Skiwing is applied, NCAT can properly be said to be predominantly composed of Members who are "judges in substance".
12. In relation to the application of Skiwing in the present cases, the Solicitor General also made a number of more specific submissions, which we shall now address.
13. It was submitted that although it was a question of substance not form, "the use or absence of the word 'court' in the constitutive statute is indicative" presumably that the body was unlikely to be a "court of a State", in the absence of other determinative factors. We accept that this is correct. In the case of NCAT, however, the absence of the description of the Tribunal as a "court" in the NCAT Act does not lead to the conclusion that NCAT is not a "court of a State". This is so for at least two reasons.
14. First, for the reasons we have already given, NCAT meets the defining characteristics of a court and, thus, the absence of the description "court" from the NCAT Act does not deprive it of the status of a "court of a State".
15. Secondly, NCAT is established by its Act as a body that has predominantly judicial functions that are to be exercised judicially and fairly. It can punish for contempt in the face of the Tribunal and, thus, can imprison and fine. In these circumstances, a proper conclusion is that the Parliament intended to, and did, establish the Tribunal as a court of record. In these circumstances, if NCAT is such a court by implication from its constitutive legislation, it is not significant that it was not expressly designated a court in that legislation.
16. Another submission of the Solicitor General was that, like the ADT, NCAT is not a "court of a State" because it is not composed, or predominantly composed, of judges since, apart from the President, "none of its other members need to be judicial officers". In this context, it was noted that the Tribunal's 2015-16 Annual Report indicates that only five of the Tribunal's Members are "judicial officers". As we understood it, these submissions were based on the premise that to be a "judge in substance" within the principle in Skiwing a person had to be a "judicial officer" for the purposes of the Judicial Officers Act 1986 (NSW).
17. We have already explained why, contrary to this submission, NCAT Members should be seen as "judges in substance". In addition, we have difficulty with the premise that in order to be a "judge in substance" one must be a "judicial officer" within the meaning of the Judicial Officers Act. Section 3(1) of that Act contains the following definition: "judicial officer means (except in Part 7A): (a) a Judge or associate Judge of the Supreme Court, (b) a member of the Industrial Relations Commission, (c) a Judge of the Land and Environment Court, (d) a Judge of the District Court, (e) the President of the Children's Court, (f) a Magistrate, or (g) (Repealed) (h) the President of the Civil and Administrative Tribunal."
18. The definition of "judicial officer" does not identify characteristics that might describe a "judge in substance". It is merely a list of certain statutory offices.
19. Skiwing is not authority for the proposition that only "judicial officers" within the definition in s 3(1) are "judges in substance" for constitutional purposes. If such a proposition were correct, it would involve not looking at the substance of what the decision-maker was and did but merely having regard to the form, namely the label attached under s 3(1) of the Judicial Officers Act to certain statutory offices. This would be inconsistent with Skiwing at [50].
20. Moreover, as s 3(1) itself indicates, in Pt 7A of the Judicial Officers Act there is another definition of "judicial officer". Pt 7A concerns the appointment of judicial officers to other positions. Section 43B in that Part provides: "judicial officer means a judge, magistrate or other person who, whether alone or together with others, constitutes a court, but does not include a lay member of a court."
21. In that same section, it is provided that "court includes tribunal."
22. Consequently, "judicial officer" as defined in s 43B includes, among other persons, someone who, whether alone or together with others, constitutes NCAT, but does not include a lay member of the Tribunal. On this definition, all legally qualified Members of NCAT are "judicial officers", albeit for the limited purposes of Pt 7A of the Judicial Officers Act. The Tribunal is composed predominantly of that type of Member.
23. For these reasons, we cannot accept the Solicitor General's submissions that NCAT is not a "court of a State" based on [49] and [50] of Skiwing.

Skiwing - the "balance sheet approach"

1. The Solicitor General's submission concerning the "balance sheet approach" stated the general proposition in the following terms: "Another approach to ascertaining whether or not a body is a "court of a State" is by identifying the matters supporting the conclusion the body is a 'court of a State' and those matters supporting the opposite conclusion and balancing the two sets of indicia: Orellana-Fuentes v Standard Knitting Mill Pty Limited (2003) 57 NSWLR 282 at [37] - [52] per Ipp JA (Spigelman CJ and Hadley JA agreeing) and Skiwing at [18] per Spigelman CJ."
2. The submissions contained two lists of matters relating to NCAT that were said to correspond with the two lists of matters identified by Spigelman CJ in Skiwing as relevant to the ADT (at [27] and [26] of that decision respectively). The first were matters said to operate against the proposition that the ADT was a "court of a State" and the second were those matters said to operate in favour of that proposition.
3. The Solicitor General's submissions then identified the three key differences between the ADT and NCAT, in terms of the matters or indicia identified in Skiwing. These were: 1. unlike the ADT, NCAT has the same power to punish for contempt as the District Court; 2. whereas the ADT Act contained no provision for the enforcement of an order of that tribunal (other than an order for the payment of money), the NCAT Act does contain such a provision, s 72; 3. unlike in the ADT, there is no role for assessors in NCAT.
4. It appeared to be accepted that these all pointed in the direction of NCAT being a "court of a State", if the "balance sheet approach" was applied.
5. The Solicitor General submitted that pointing the other way was the fact that whereas there was a right of appeal from the Appeal Panel of the ADT to the Supreme Court on a question of law, leave is generally required under s 83 of the NCAT Act.
6. The conclusion of this submission was "[a]s in the case of the ADT in Skiwing, … balancing all the indicia that the Tribunal is, and is not, a 'court of a State' … the Tribunal is not a "court of a State" within the meaning of Chapter III of the Constitution".
7. As we understand the "balance-sheet approach", the categorisation of a matter as pointing towards the body being a "court" or pointing in the opposite direction must be informed by whether that matter assists the body to meet, or compromises its ability to meet, one or more of the defining characteristics for a "court" for constitutional purposes identified in decisions such as Pompano at [67].
8. We do, however, have a concern that the Solicitor General's submissions based on balancing the various matters appear to be predicated on the assumption that NCAT is merely a slightly adjusted version of the ADT. Perhaps as a result of this assumption, the submissions focused on features of the former ADT identified as relevant in Skiwing. We find this unpersuasive because NCAT differs significantly from the ADT, including in the respects mentioned above, which we do not repeat here. One fundamental difference between NCAT and the former ADT is that NCAT, unlike the ADT, is not a body whose principal function is to carry out merits review of administrative decisions of the executive government. NCAT's principal function is to resolve disputes between parties by the exercise of judicial power. As we read them, the Solicitor General's submissions do not focus on this significant distinction.
9. Notwithstanding this concern, adopting the "balance-sheet approach" in relation to the matters identified in Skiwing, we believe it leads to the same conclusion as that reached above, when considering the defining characteristics of a "court", that the Tribunal is a court for constitutional purposes.
10. We accept that the types of matters which pointed to the ADT being a "court of a State" point in the same direction for NCAT. However, we make the following observations concerning the Skiwing matters said to point against NCAT being a "court of a State" according to the Solicitor General's written submissions: 1. NCAT is not called a "court" in the NCAT Act. If its constitutive legislation already establishes the Tribunal as a court of record by implication, express designation as a "court" might be seen as otiose. In any event, it cannot be decisive. 2. Members are appointed for a renewable term of up to 5 years. Appointment for renewable terms does not mean a body is not a "court of a State" provided Members have sufficiently secure tenure and other protections so as to assure institutional and personal independence and impartiality. 3. Principal, Senior and General Members do not have to have legal qualifications. Under s 13 of the NCAT Act persons may be qualified for appointment as Members even if they are not lawyers of at least 7 years standing or legally qualified. This, however, does not compromise the independence or impartiality of the Tribunal or detract from its exercise of judicial power. Whatever the qualifications of Members constituting the Tribunal, they are required to decide matters in accordance with law and their decisions are liable to be corrected for legal error on appeal or by way of judicial review. The role of lay Members on a panel in NCAT is regulated by s 57 of the NCAT Act, which in effect allows lay Members to participate in determining the outcome on questions of fact but, where there is dispute, questions of law are to be decided by the legally qualified Member or Members. 4. Principal, Senior and General Members are appointed by the Minister. There is no difference in substance between appointment by the Governor or by a Minister. All New South Wales judges and magistrates are appointed by the executive arm of government. That fact does not detract from the institutional independence or impartiality of the Courts or the Tribunal, given the other safeguards and arrangements that apply. 5. Judicial officers may be appointed to act as Members by the President. Having existing or retired judicial officers appointed by the President to hear and determine particular proceedings in the Tribunal where "it is necessary to enable the Tribunal to exercise its functions effectively in the proceedings", under s 15(2) of the NCAT Act, does not compromise the Tribunal's institutional independence and impartiality. If anything, it enhances them. Gleeson CJ accepted in Forge at [13] (quoting a decision of the Canadian Supreme Court) that appointment "for a specific adjudicative task", provided the Member has appropriate security from removal, is consistent with the defining characteristics of a court. This security, in the case of NCAT Members (other than the President), is provided by, among other things, cl 7(2) of Sch 2 to the NCAT Act. 6. At least in its administrative review jurisdiction, the Tribunal is required to give effect to government policy. NCAT is not, and was not intended to be, a body predominantly exercising executive or administrative power. It predominantly exercises judicial power. In its administrative review jurisdiction, the Tribunal exercises executive power and, in doing so, may be required to give effect to government policy in the limited circumstances prescribed by s 64 of the ADR Act. Unlike federal courts, the "courts of the States" may be given non-judicial functions, including exercising executive power in merits review of administrative decisions - Kable at 66-7 and K-Generation at [153]. Consequently, s 64 of the ADR Act does not mean that NCAT cannot be a "court of a State". Further, if we are wrong and it should be concluded that s 64 of the ADR Act is inconsistent with the required institutional independence and impartiality, the consequence would be that s 64 is invalid rather than that NCAT is not a "court of a State" - K-Generation at [152] to [154]. 7. The Governor may remove a Member (other than the President) from office for incapacity, incompetence or misbehaviour. The protection from arbitrary removal provided by cl 7(2) of Sch 2 to the NCAT Act tells in favour of, not against, NCAT being a "court of a State". The precise form of the protection is not significant. To be a "court of a State", it is not necessary that the decision-makers only be removable by the Governor on an address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity. 8. A Division Head may be removed from that office by the Governor under s 14(2)(a) of the NCAT Act. To be appointed Division Head, a person must already be the President or a Deputy President. Similarly, removal as Division Head does not deprive a person of their office as President or Deputy President. Appointment as a Head of a Division is essentially an organisational matter, and not one that relates to the institutional integrity of the Tribunal. Section 14(2)(a) does not compromise the institutional independence or impartiality of the Tribunal. 9. The Tribunal has no express power to prevent abuse of its processes. We do not accept that this correctly reflects the powers of the Tribunal concerning its own procedures or that, even if correct, this means that the Tribunal is not a "court of a State". Preventing abuse of the Tribunal's processes is, in essence, a procedural matter. Section 38(1) of the NCAT Act provides that "[t]he Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision". In addition, if such a power to prevent abuses was not included in s 38(1) and was needed to support the Tribunal's power to conduct proceedings and determine matters justly, it would be implied. Conferral of a power impliedly includes all powers reasonably necessary to give effect to that power - Grassby v The Queen (1989) 168 CLR 1 at 16-17; [1989] HCA 45. 10. Proceedings for an offence against the NCAT Act are instituted in the Local Court, as provided in s 76 of the NCAT Act. A similar situation applied in relation to the Licensing Court which was the subject of the High Court's decision in K-Generation, see the judgment at [121] and [124]. This situation did not lead the High Court to conclude that the Licensing Court was not a "court of a State". It should not be surprising that proceedings for offences against the NCAT Act are not heard in the Tribunal. Those proceedings are criminal and NCAT is primarily a civil decision-making body with contempt powers and limited administrative functions. The Local Court deals with a large number of summary criminal matters and it is common sense that it, rather than the Tribunal, should deal with offences against the NCAT Act.
11. For these reasons, we are not satisfied that these matters relied upon by the Solicitor General establish that the Tribunal is not, or cannot be, a "court of a State". Nor do we think that they should be seen as "operating against the proposition" that the Tribunal is such a court. It appears to us that many of the features indicate that the Tribunal is, and is intended to be, a "court of a State" and the remainder are, at worst, equivocal.
12. The four differences between the ADT and NCAT identified in the Solicitor General's submissions also tend to support, in our view, the conclusion that NCAT is a "court of a State". They are: 1. unlike the ADT, NCAT has the same power as the District Court to deal with contempt in the face of the Tribunal - s 73 of the NCAT Act; 2. unlike the ADT Act, the NCAT Act contains a power to enforce orders of the Tribunal - s 72 of the NCAT Act; 3. unlike the ADT, in NCAT there is no role for assessors; 4. unlike the right of appeal to the Supreme Court on a question of law from ADT Appeal Panel decisions, NCAT Appeal Panel decisions can only be appealed to the Supreme Court by leave on a question of law. This appears to be a recognition by the Parliament that NCAT's Appeal Panel decisions require a lesser degree of supervision by the Supreme Court than those of the ADT. It does not point against NCAT being a "court of a State".
13. Consequently, if all the indicia are identified and balanced, we think such a process in the present cases supports the conclusion that NCAT is a "court of a State" rather than the opposite.

Whether the Tribunal is a court of record

1. Finally, the Solicitor General submitted that: "[i]n determining whether a tribunal is a "court of a State" for the purposes of Chapter III of the Constitution, emphasis has also been placed on whether the tribunal is designated as a "court of record" by the State legislature: see K-Generation at [85] [and also Owen v Menzies at [10], [19], [48], [52] and [103]"
2. We accept this proposition.
3. The submission is then put that the Tribunal has not been designated a "court of record" with the implied conclusion that it is not, therefore, likely to be a "court of a State". Against this stands the principle that the express conferral of the power to punish for contempt in the face of a judicial body, including the power to imprison and to fine, implicitly establishes the body as a court of record. In NCAT's case, it appears to us that this principle means that NCAT can be seen to be a court of record. If this is correct, the submission loses much, if not all, of its force.

Owen v Menzies

1. In this part of his written submissions concerning whether NCAT is a court of record, the Solicitor General submitted that Owen v Menzies "cannot stand with the dicta of the High Court in Forge …". It does not appear to us, however, that any dicta in Forge are inconsistent with the reasoning or decision in Owen v Menzies. Nor did the Solicitor General point to any specific dictum in Forge that he relied upon to establish such inconsistency. Accordingly, we cannot be satisfied that Owen v Menzies is inconsistent with High Court authority.
2. Since Owen v Menzies concerned QCAT, a body, like NCAT, sometimes described as a modern State super-tribunal, with very similar functions, jurisdictions, first instance and appellate structures and membership to those of NCAT, it is appropriate to consider Owen v Menzies in some detail.
3. Indeed, it appears to us that we are bound to follow Owen v Menzies unless it is relevantly distinguishable or we consider it is plainly incorrect - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; [2007] HCA 22 and CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [48]-[50], [63]; [2009] HCA 47.
4. In Owen v Menzies, the Queensland Court of Appeal considered, among other issues, whether QCAT was a "court of a State". They concluded it was - at [20], [52] and [103]. In doing so, they distinguished the New South Wales Court of Appeal decision in Skiwing, principally on the basis that the former ADT was not a "court of record", and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) established that QCAT was - see for example at [48]. Similarly in the present cases, Skiwing is distinguishable.
5. de Jersey CJ rejected the contention that QCAT was not a "court of a State" on the following most relevant bases, among others: 1. QCAT is a court of record and this is a "very strong consideration" in determining the true nature of the body - at [10] and [19]; 2. QCAT decides controversies between the parties before it, making "binding and authoritative" decisions, which ordinarily characterise the exercise of judicial power - at [11]; 3. although QCAT was required in a proceeding for a "minor civil dispute" to make orders that it considers fair and equitable, this did not relieve the Tribunal of the obligation to make its determinations in accordance with the parties' legal rights and obligations - at [12] to [13]; 4. QCAT was expressly required to "act independently" and the QCAT Act stated that it "is not subject to direction or control by any entity, including any Minister" - at [14]; 5. the fact that QCAT was "not bound by the rules of evidence, or any practice or procedure applying to courts of record" (s 28(3)(b) of the QCAT Act) was not inimical to the exercise of judicial power, relying on K-Generation at 537 - at [15(1)]; 6. although the power to punish for contempt was exercisable only by the President or Deputy President, this was of no substantial weight in supporting the argument that QCAT was not a "court of a State" - at [15(3)]; 7. the fact that senior members and ordinary members, who account for the vast majority of the membership of QCAT, may be removed from office by the executive government for nothing more than inefficiency, or for conduct which would warrant dismissal from the public service did not mean that QCAT was not a "court of a State". This was because there is an avenue to challenge removal under the Judicial Review Act 1991 (Qld) and the availability of the Supreme Court's supervisory jurisdiction is a safeguard for the independence of inferior courts or tribunals relying on Forge at 82-3 - at [15(4)]; 8. QCAT could not enforce its orders and enforcement required filing an order in the registry of a court of competent jurisdiction did not mean that QCAT was not exercising judicial power as explained in Brandy at 269 and requiring registration in a court did not impair the institutional integrity of QCAT - at [15(5)]; 9. The members of QCAT serve relatively short terms and the submission was made that this raises a perception that they may need to persuade the executive government that they should be reappointed. This submission was rejected on the basis of what was said by Gleeson CJ in Forge at 59 - at [15(6)]; 10. It was submitted that since QCAT does not "predominantly or principally" comprise Judges and having regard to the statement in Forge that "a court, or at least the Supreme Court, of a State must principally be constituted by permanent judges" and similar unqualified comments in Skiwing, QCAT should not be held to be a "court of a State". This submission was rejected because the statement in Forge was subject to the significant limitation that it applied to the "Supreme Court" and because members were appointed for fixed terms, removable from office only in limited circumstances, obliged to act independently and not subject to direction. Lack of "Act of Settlement" tenure did not mean QCAT was not a "court" because members were secure against interference by the executive in a discretionary or arbitrary way - at [15(7)]; 11. a "balance sheet approach" should not deflect from an appropriately broad, overall assessment of whether QCAT was a Ch III court - at [16] to [17]; 12. the legislature has "militated independence and impartiality … as mandatory for QCAT" - [19].
6. At [20], the Chief Justice concluded: "Insofar as the actual operating conditions within the Tribunal may for argument's sake not have been ideal in terms of judicial criteria, high authority supports the view that one need not nevertheless secure that ultimate ideal in order to justify the "court of law" characterization. Ultimately there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a "court of the State" within the meaning of the Constitution"
7. McMurdo P reached the same conclusion as the Chief Justice - at [52]. Her Honour held at [49]: "Despite QCAT's nomenclature as a tribunal and the many other matters raised by Mr Owen, the following factors in combination persuade me that it is a Queensland court, albeit an inferior court of summary jurisdiction. First, as already noted, QCAT is a court of record. Second, it is an independent tribunal resolving disputes between parties. Its independence is not jeopardised solely because the majority of its judicial officers are part-time and do not have the same financial security or security of tenure enjoyed by Queensland magistrates and District and Supreme Court judges: North Australian Aboriginal Legal Aid Service Inc v Bradley. Third, QCAT's decisions bind the parties and are enforceable. The fact that the enforcement of QCAT decisions turns on the filing of material in another court does not mandate that QCAT is not exercising judicial power: see Brandy and Attorney-General (Cth) v Alinta. QCAT hearings are ordinarily in public and it must give reasons for its decisions. Its decisions as a court of summary jurisdiction are subject to appeal and to the Supreme Court's supervisory and appellate jurisdiction." (footnotes omitted)
8. McMurdo P made other useful observations at [53] to [55]. Muir JA agreed with the Chief Justice's reasoning in this regard at [103].
9. Since it does not appear that the circumstances of QCAT and NCAT are relevantly distinguishable or that the decision is plainly incorrect, it is proper for us to conclude, based on Owen v Menzies, that NCAT is a "court of a State" for the purposes of Ch III of the Constitution.
10. The Queensland Civil and Administrative Tribunal Act 2009, which explicitly designates QCAT as a court of record in s 164(1), is different from the NCAT Act, which can be seen as establishing NCAT as a court of record by implication. We do not think this difference is one of substance. If we are wrong in this regard and the difference is of substance not just form, we do not consider that circumstance outweighs the other factors which indicate NCAT is a "court of a State" and which make the reasoning and conclusion in Owen v Menzies compelling and applicable in the present cases.
11. Finally and with respect, we find that there is much to recommend the general comments of the President in Owen v Menzies concerning Ch III of the Constitution and the role in the integrated national court system of what have been called the State "super tribunals", established in accordance with the model adopted for QCAT and NCAT. These comments are found at [60] where her Honour said: "In my opinion, the construction of Ch III adopted in Skiwing, 2UE Sydney and Sunol (No1) and urged upon us by Mr Owen would have undesirable consequences, unlikely to have been intended by those who drafted Ch III. It would mean that an independent and impartial State court like QCAT, set up to be accessible, fair, just, economical, informal and quick in an open and accountable way and upon which no non-judicial functions infringing the Kable principle have been conferred, could not determine federal constitutional law intermingled with and directly relevant to its exercise of State judicial power. In the context of the present case, this would mean that any person the subject of a complaint under s 124A [of the Anti-Discrimination Act 1991 (Qld)] could thwart the jurisdiction of QCAT simply by raising a constitutional issue, no matter how unmeritorious. I also receive some comfort in taking this construction of Ch III by the fact it is consistent with the approach presently adopted in construing broadly comparable constitutional provisions in the federations of the United States of America and in Canada." (footnotes omitted)
12. QCAT and NCAT are new participants in the Australian judicial system. We believe the comments of the President are consistent with the general observations of Spigelman CJ in Skiwing at [69] concerning the development of constitutional expressions as institutions change or are created: "… the meaning of a constitutional expression is not fixed as at 1900, save with respect to essential features. Institutions referred to in the Constitution had, to the knowledge of the drafters, developed and changed over time, were continuing to develop at the time of federation and were expected to continue to develop thereafter."

Conclusion on question (b) in each appeal

1. For all of the reasons given above, in our view NCAT has been since its creation on 1 January 2014 a "court of a State" for the purposes of Ch III of the Constitution and s 39(2) of the Judiciary Act.
2. The Solicitor General raised a final matter in his written submissions arising out of the fact that question (b) is: "clearly a question arising under the Constitution or involving its interpretation" and "constitutional questions are not matters in respect of which the Tribunal has jurisdiction under the NCAT Act. There is no statute that confers such authority to decide on the Tribunal. … [A]ccordingly, the Tribunal does not have the power to determine the answer to question (b) but may only form an opinion as to the answer to that question: Sunol No 1 at [20]; Qantas Airways v Lustig at [62]"
3. As we understood it, the contradictor effectively submitted that the requisite jurisdiction is conferred by s 39 of the Judiciary Act.
4. Section 76(i) of the Constitution refers to a "matter … arising under this Constitution, or involving its interpretation" rather than a "question". The Johnson, Dibbin and Gastby matters do not arise "under the Constitution". Nor, in a sense, do those matters directly involve the interpretation of the Constitution. Only the antecedent question of whether the Tribunal has authority to hear and determine those matters involves the issue of whether Tribunal is a "court of a State" for the purpose of Ch III and s 39 of the Judiciary Act and it is only that question which can be said to involve the interpretation of the Constitution.
5. While the Johnson, Dibbin and Gatsby matters are in federal jurisdiction, since they fall within s 75(iv) of the Constitution, the law to be applied (as distinct from federal jurisdiction understood as the authority to adjudicate) is exclusively State law; specifically, the RT Act and the NCAT legislation - see Rizeq at [7] and [9]. In relation to the antecedent question of whether the Tribunal is invested with federal jurisdiction, however, that question turns on whether it is a "court of a State", which involves the interpretation of the Constitution.
6. The NCAT Act does give the Tribunal power to determine whether it has jurisdiction in matters the subject of proceedings for a general decision, such as the present matters. This is achieved by s 29(2)(a), read together with the definition of "ancillary decision" in s 4(1), and in particular the inclusive example in par (a) of that definition: "a decision concerning whether the Tribunal has jurisdiction to deal with a matter".
7. It is, however, correct that the NCAT Act cannot confer authority on the Tribunal to hear and determine a "matter … involving the interpretation of the Constitution". It is necessary to turn to federal laws.
8. Covering cl 5 of the Constitution provides that laws made by the Commonwealth Parliament are binding on "the courts, judges and people of every State". Section 39 of the Judiciary Act 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."
9. Section 39(1) of the Judiciary Act, with covering cl 5, withdraws from State courts (and, for that matter, tribunals that are not State courts - Burns v Corbett) the federal jurisdiction they would otherwise have had. Section 39(2), however, restores it to "[t]he several Courts of the States" as invested federal jurisdiction. Thus, s 39(2) invests the Tribunal, if it is a "court of a State", with the requisite authority to adjudicate the antecedent question of whether it has authority to determine a matter in federal jurisdiction because it is a "court of a State". See Rizeq at [6].
10. A "court of a State" invested with federal jurisdiction, while acting in that capacity, becomes part of the Federal Judicature and part of the "integrated national court system" established by Ch III - Rizeq at [5]
11. For all "courts of a State", a circularity might be thought to arise whenever they are called upon to exercise federal jurisdiction because they can only do so if they determine, having regard to the proper interpretation of the Constitution, that they are a "court of a State". The circularity is that those bodies can only determine whether they are a "court of a State" if they are a "court of a State". It appears the circularity has been almost universally ignored and the question of whether such bodies were a "court of a State" dealt with implicitly, if at all. This is perhaps understandable.
12. In the present cases, however, the Solicitor General submitted in effect, as we understand it, that this circularity means that the Tribunal "may only form an opinion as to the answer to [question (b)]" and may not answer it.
13. It can be noted here that the authorities relied upon in this regard namely, Sunol and Qantas Airways v Lustig (2015) 228 FCR 148; [2015] FCA 253, both concerned bodies that were held by a different "court of a State" or a federal court not to be a "court of a State". Thus, we do not think that they provide useful guidance for us in the present matters.
14. In our view, forming an opinion without resolving the matter by decision is unsatisfactory and may be inimical to the proper administration of justice. It is our duty to resolve the issue raised by question (b) by making an order answering the question for the benefit of the parties, the Tribunal and other potential litigants in the Tribunal. If it is so resolved, this also has the benefit that it permits any party dissatisfied with the decision to appeal. It is not possible to appeal from an opinion not given expression to in an order.
15. Put another way, if the Tribunal is a "court of a State", it is not in the interests of justice to refuse to make any orders and wait for another "court of a State" to decide, implicitly or explicitly, that it itself is a "court of a State" so that it can decide whether the Tribunal is a "court of a State".
16. In our view, the proper approach for the Appeal Panel in these matters is, if it decides the Tribunal is a "court of a State", to proceed to make orders answering question (b).
17. For all of the reasons given above, we propose to make orders answering question (b) of the separate questions: Yes, as follows :

In the Johnson appeal Question: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/41349 and RT 15/44353: … (b) if the answer to question (a) is "no" [which it is], because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?" Answer: YES

In the Gatsby appeal Question: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/56639: … (b) if the answer to question (a) is "no" [which it is], because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)?" Answer: YES

Conclusion and Orders

1. In addition to answering the questions (a) and (b) in each appeal, it is also appropriate to list the Johnson and Gatsby appeals for directions in order to determine how the appeals should now be disposed of.
2. Accordingly, the Appeal Panel orders in AP15/66120: 1. The separate questions be answered as follows: Did the Tribunal at first instance have authority to hear and determine the applications under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/41349 and RT 15/44353: (a) because in doing so it was exercising administrative and not judicial power? NO (b) if the answer to question (a) is "no", because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)? YES 1. The appeal is listed for directions on 1 March 2018 at 9.30 am.
3. Accordingly, the Appeal Panel orders in AP15/67274: 1. The separate questions be answered as follows: Did the Tribunal at first instance have authority to hear and determine the application under the Residential Tenancies Act 2010 (NSW) in proceedings RT 15/56639: (a) because in doing so it was exercising administrative and not judicial power? NO (b) if the answer to question (a) is "no", because the Tribunal is a court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)? YES 1. The appeal is listed for directions on 1 March 2018 at 9.30 am.

Appendix 1 This appendix sets out data taken from the NCAT Annual Report for 2016-17, tabled in Parliament in accordance with s 91(2) of the NCAT Act. It includes the data for all applications and appeals lodged in the Tribunal during the 2016-17 financial year, broken down by list or Division. The proportions have not changed significantly since NCAT was created on 1 January 2014. Matter Type Number % All applications and appeals 66,837 100%

Administrative Review List (AEOD) 392 Community Services List (AEOD) 205 Revenue List (AEOD) 142 Administrative Review List (OD) 123 All administrative review matters 862 1.3%

Equal Opportunity List (AEOD) 94 Tenancy List (RT Act) (CCD) 29,964 Social Housing List (RT Act) (CCD) 12,588 General List (Consumer Claims) (CCD) 5,103 Home Building List (CCD) 2,860 Residential, Strata and Communities Lists (CCD) 1,609 Motor Vehicles List (CCD) 1,636 Commercial List (Retail Leases, Agricultural Tenancies, Property Stock and Business Agents and Dividing Fences) (CCD) 854 Retirement Villages List (CCD) 55 Guardianship, Financial Management, Reviews, and other applications (GD) 10,569 Health List (OD) 83 Legal and Other Professions List (OD) 42 Appeals (AP) 518 All Non-administrative review matters 65,975 98.7%

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 14 February 2018 - Legislation updated in coversheet and at paragraph 186 15 February 2018 - Typographical error amended at paragraph 357 23 February 2018 - Typographical error amended at paragraph 380 02 March 2018 - Typographical error amended at paragraph 202 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2018