1. The adjourned hearing was resumed on 22 March 2013.
2. The applicant, Mr Leon Brown, was represented by Dr Steven Stern, instructed by Welfare Rights and Legal Centre.
3. The respondent, the Commonwealth of Australia, was represented by Mr Nigel Oram, Australian Government Solicitor.
4. The intervener, the Attorney-General for the Australian Capital Territory, was represented by the Solicitor-General Mr Peter Garrisson SC.

1. The first issue before the tribunal was whether the amendment in 2009 to the Leases Ordinance 1992 (JBT) conferred jurisdiction to deal with residential tenancies disputes in relation to the subject blocks in the Jervis Bay Territory upon the Residential Tenancies Tribunal, and, if so, is that jurisdiction now in the ACT Civil and Administrative Tribunal (ACAT)?
2. In relation to this issue, each party accepted that that amendment had intended to confer jurisdiction in relation to the subject blocks in the Jervis Bay Territory upon the Residential Tenancies Tribunal of the Australian Capital Territory, and that, as its successor in law, ACAT now has the relevant jurisdiction in relation to the RT Act within the Jervis Bay Territory.

1. The second issue, whether the Commonwealth is subject to the jurisdiction of the ACAT in relation to the residential tenancy on the subject premises in the Jervis Bay Territory, requires analysis of two further issues:
   1. Is the Commonwealth bound by the RT Act?
   2. If so, is the Commonwealth subject to the jurisdiction of the ACAT?

1. The Commonwealth submitted that ACAT has no jurisdiction in relation to the Commonwealth in these proceedings for two reasons:
   1. the Commonwealth is neither bound by the RT Act nor the ACT Civil and Administrative Act 2008 (ACAT Act), in so far as those Acts are applicable to this dispute as a law of either the ACT or the Jervis Bay territory; and
   2. ACAT cannot exercise the judicial power of the Commonwealth.

The Commonwealth is not bound by the RT Act or the ACAT Act

1. The Australian Capital Territory (Self-Government) Act 1988 (Cth) provides that ACT legislation does not bind the Crown in right of the Commonwealth unless it is expressed to do so by regulation. Section 27 of that Act provides that except as provided by the regulations, an enactment does not bind the Crown in right of the Commonwealth.
2. The Schedule to the Australian Capital Territory (SelfGovernment) Regulations 1989 (Cth), which lists the enactments which bind the Crown in right of the Commonwealth, lists neither the RT Act nor the ACAT Act.
3. The Commonwealth therefore argues that if an ACT law in force in the ACT does not bind the Commonwealth (because it is not so provided by the above regulations), then an ACT law in force in the Jervis Bay territory also does not bind the Commonwealth. Thus, the Commonwealth asserts that since the RT Act is not expressed to bind the Commonwealth, it cannot, as an ACT law, bind the Commonwealth either in the ACT or in the Jervis Bay Territory.
4. The Commonwealth accepted that the RT Act may apply in the Jervis Bay Territory, but not so as to bind the Commonwealth.

ACAT cannot exercise the judicial power of the Commonwealth

1. The judicial power of the Commonwealth must be exercised by courts created pursuant to Chapter III of the Constitution. Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in 'the High Court of Australia, and in such other Federal court as the Parliament creates, and in such other court as it invests with Federal jurisdiction'.
2. ACAT is not such a court and, therefore, cannot exercise the judicial power of the Commonwealth.
3. The judicial power of the Commonwealth is exercisable where federal jurisdiction is attracted by the presence of the Commonwealth as a party in a matter.[2] Wherever a court or tribunal exercises judicial power against the Commonwealth it exercises the judicial power of the Commonwealth.
4. The Commonwealth made submissions in relation to whether ACAT exercises judicial or administrative power. The tribunal was referred to the provisions of the RT Act and to the provisions of the ACAT Act which deal with the powers of the tribunal: the tribunal may make orders, for example, in relation to restraining actions, compliance with contractual obligations, and the payment of damages. The orders of the tribunal are enforceable. The tribunal must make decisions and determinations in accordance with legal principle. The Commonwealth submitted that 'all these things are very strong indications of the exercise of judicial power'.

The effect of the 2009 amendment to the Leases Ordinance 1992 (JBT) by the Commonwealth

1. In response to a request from the tribunal, the Commonwealth made the following submissions:
   1. The Commonwealth Parliament cannot enact legislation giving power to the tribunal as that is constitutionally inadmissible; so to the extent that the Residential Tenancies Tribunal could exercise powers and grant relief that did not involve the exercise of judicial power of the Commonwealth, the amendment would operate to confer that limited exercise of power. However, given the 'court like powers' that ACAT has to deal with these matters, ACAT is (in accordance with the above submissions in relation to the exercise of the judicial power of the Commonwealth) unable to exercise those powers against the Commonwealth.
   2. In practical terms, the amendment could therefore have no purpose and no effect since the Commonwealth is the only residential landlord in the Jervis Bay Territory. Thus, although the Commonwealth has now entered into residential tenancies agreements governed by the RT Act, the tenants are not able to have recourse to ACAT, but must, the Commonwealth submits, seek remedies in a court which has the power to exercise the judicial power of the Commonwealth.

1. The applicant made both written and oral submissions, which are summarised as follows:

1. ACAT has power to resolve the issues before it in this matter because it is an administrative or quasi-legislative body not exercising judicial power, nor exercising Federal jurisdiction. 2. The relationship between the Commonwealth and the territories is governed by section 122 of the Constitution. The Commonwealth has pursuant to the territories power in the Constitution passed legislation with reference to the application of the RT Act to the Jervis Bay Territory and the power of ACAT to determine matters pursuant to the RT Act in the subject premises located in the Jervis Bay Territory.

1. The law's approach to the capacity of legislation to bind the Crown has been modified over the years. The prohibition contained in the original doctrine of common law that legislation does not bind the Crown unless expressed to do so, has tended to be confined to governmental matters and not extended to matters where the government, whether it be the Commonwealth or a State, chooses to enter into relationships of a kind that a private citizen would; such as a residential tenancy.

1. ACAT should not decline to exercise power in this matter as the Commonwealth has, drawing on the territories power, passed legislation conferring upon it a power to deal with residential tenancies matters in the Jervis Bay Territory and that if the Commonwealth no longer intends that ACAT should have this power, it is for the Commonwealth to amend or repeal the relevant provisions of the Leases Ordinance.

The submissions of the Attorney-General of the ACT as intervenor

1. The recent decisions of Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489 and Crosby v Kelly [2012] FCAFC 96; (2012) 289 ALR 531, describe a process by which the Commonwealth may pick up and apply laws. The Commonwealth may pick up and apply the content of ACT legislation as Commonwealth law.
2. In this matter, what has occurred is that an ACT law, the RT Act, has been picked up by the Commonwealth law and applied by the enactment of the amendment to the Leases Ordinance in 2009 to the Commonwealth Territory of Jervis Bay.
3. The effect of that picking up and application of the law by the Commonwealth is to give to ACAT the power to make decisions pursuant to the RT Act in relation to the Jervis Bay Territory. The intervener submits that the Commonwealth has given ACAT the exercise of Commonwealth executive power.
4. ACAT cannot exercise the judicial power of the Commonwealth and, therefore, the tribunal must determine whether the power it is asked to exercise pursuant to the RT Act in relation to the Jervis Bay Territory is judicial power or administrative executive power.

Is the Commonwealth bound by the Residential Tenancies Act in the Jervis Bay Territory?

1. Under the common law, the Crown is presumed not to be bound by legislation. This principle was known as the doctrine of Crown immunity. However, the presumption can be displaced by Parliament simply by putting an express statement in the relevant piece of legislation that it does bind the Crown. Even in the absence of an express provision, the presumption can be displaced by implication.
2. In Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, the High Court departed from the then prevailing approach that, in the absence of an express statement binding the Crown, the Crown would be bound by legislation only if the legislation would be unworkable unless the Crown was bound. Instead, it was held the court should take a general view of legislation in order to determine whether the legislature intended the Crown to be bound, and that legislation would be held to bind the Crown if the underlying purpose of the legislation indicated that the legislature intended the Crown to be bound.[3]
3. In Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania)[4], it was noted that, unless the contrary intention appeared, an Act will not bind the Crown. The Crown might, however, unless the contrary intention appeared, take advantage of an Act if it chose to do so. In Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 it was held that the Crown was not bound, unless expressly named in the Act, or it was manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound. An intention to bind the Crown may appear by implication. However, the implication would be drawn only if it was necessary to do so. The position in Australia was altered by Bropho v Western Australia where the High Court observed that the presumption in favour of Crown immunity had evolved at a time with the Crown was confined to central organs of government. The reach of government had now become so wide that the presumption should no longer be given the weight it once had. Bropho converts what was traditionally regarded as a full-fledged presumption into what is now viewed as nothing more than a principle of construction[5].
4. The tribunal notes the submission of Dr Stern that the expansion of the activities of governments over the years has drawn governments more and more within the ambit of legislation that regulates the marketplace and society generally. Since Federation, governments have broadened their functions from administration and infrastructure to a vast range of commercial and other activities in conjunction, or in competition, with private citizens and corporations[6]. The existence of Crown immunity is a matter of statutory construction and the constitutional validity of the legislation in question.
5. In Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority[7], Brennan C J stated there is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter. His Honour at [4] said that when the Crown in right of the Commonwealth enters into a transaction governed by State law, it is "bound" in the sense that the rights it acquires or the obligations it assumes by entering into the transaction are those prescribed by or pursuant to the State law. His Honour adopted the principle in Clough v Leahy[8] that if an act is unlawful - forbidden by law - a person who does it can gain no protection by saying that he acted under the authority of the Crown.
6. The legislation in question is not the RT Act as an Act of the Australian Capital Territory legislature, but that Act as picked up and applied by the Commonwealth as a result of the Commonwealth's enactment of the amendment to the Leases Ordinance of the Jervis Bay Territory in 2009. This was an instance of the Commonwealth enacting a law for application in the Jervis Bay Territory by reference to the content of a law of the ACT.
7. Ruhani v Director of Police stands for the proposition that it is within power for the Commonwealth to give force as a federal or Commonwealth law to a law enacted by another Parliament. At page 520, the High Court noted that there can be no objection to the Commonwealth making law by adopting as a law of the Commonwealth a text which emanates from a source other than the [Commonwealth] parliament. In such a case the text becomes, by adoption, a law of the Commonwealth and operates as such.[9]
8. Similarly, in Crosby and Another v Kelly [2012] FCAFC 96, the Federal Court of Australia held that a law that picks up as Commonwealth law a law of the Australian Capital Territory is a law made by the Commonwealth Parliament. The Court upheld the validity of an Act of the Federal Parliament which created 'surrogate' Commonwealth law by reference to the jurisdiction of the ACT Supreme Court. There can be no objection to the Commonwealth's conferral of jurisdiction by reference to the content of the law of the Australian Capital Territory.
9. The Commonwealth has, by virtue of the amendment to the Leases Ordinance 1992 (JBT), picked up and applied the Residential Tenancies Act 1997 (ACT) as a law of the Commonwealth. ACAT accepts the submission of the intervener that 'this is not a matter of the Legislative Assembly of the Australian Capital Territory making a law purporting to bind the Crown in right of the Commonwealth but a Commonwealth law picking up and applying the terms of a law in force in the Australian Capital Territory'.
10. There is no express statement in that amendment that the Commonwealth intends to be bound by the legislation. However, as stated above, following Bropho an intention to bind the Crown may appear by implication. The underlying purpose of that amendment as set out in the Explanatory Statement to the 2009 amendment to the Leases Ordinance was to allow the RT Act to fully apply to the premises which the Commonwealth as a landlord rented to tenants as residential premises. Further, the Explanatory Statement concludes that this would enable the standard ACT residential tenancy agreement to be applied and allow the ACT Residential Tenancies Tribunal [now ACAT] comprehensive jurisdiction to rule on tenancy disputes in the Jervis Bay Territory.

The Lease Amendment Ordinance amends the Leases Ordinance 1992 (JBT) to allow residential tenants and landlords in residential tenancy leases in the JBT [Jervis Bay Territory] to have access to the Australian Capital Territory Residential Tenancies Tribunal. ... Previous [ly] there was an inconsistency between the Residential Tenancy [Tenancies] Act 1997 (ACT) (JBT) and the Ordinance that set the terms of a residential tenancy agreement in the JBT [Jervis Bay Territory]. The Residential Tenancy [Tenancies] Act 1997 (ACT) (JBT) sets standard terms into every ACT residential tenancy agreement. This was overridden by provisions within the Ordinance which allowed the Minister to determine conditions for leases (which include residential tenancy agreements) in the JBT [Jervis Bay Territory] ...

The Leases Amendment Ordinance amends the Leases Ordinance 1992 (JBT) to excise residential leases within the JBT [Jervis Bay Territory] The amendment removes the inconsistency that exists between the Ordinance and the Residential Tenancy [Tenancies] Act 1997 (ACT) (JBT). This allows the Residential Tenancy [Tenancies] Act 1997 (ACT) (JBT) to fully apply and allows the ACT Residential Tenancies Tribunal to have comprehensive jurisdiction over residential tenancies in the Jervis Bay Territory.

The attachment to the Explanatory Statement concludes:

[the amendment] has the effect of excluding specific land with residential tenancies leases from the Leases Ordinance 1992 (JBT) and allowing the Residential Tenancies Act 1997 (ACT) (JBT) to fully apply to the excluded land. This enables the standard ACT residential tenancy agreement to be applied and allows the ACT Residential Tenancies Tribunal comprehensive jurisdiction to rule on tenancy disputes in the Jervis Bay Territory.

1. ACAT concludes that the Residential Tenancies Act 1997 (ACT) (JBT) binds the Commonwealth as landlord because the Commonwealth by necessary implication, from the underlying purpose of the amendment to the Leases Ordinance 1992 (JBT), so intended.

Is the Commonwealth subject to the jurisdiction of the ACT Civil and Administrative Tribunal?

1. The Commonwealth has urged the tribunal to rule on the constitutional arguments relating to the jurisdiction of ACAT and not to merely assume validity, nor assume that there is no constitutional problem until a court declares otherwise. The Commonwealth submits that the Commonwealth Parliament cannot enact legislation giving judicial power to tribunals such as ACAT. The practical, if not the legal, effect of the application of that principle to this matter is that the amendment to the Leases Ordinance 1992 (JBT) by the Commonwealth is a futile exercise because the Commonwealth is the only residential landlord in the Jervis Bay Territory.
2. In Sunol v Collier [2012] NSWCA 14, the court stated, by way of obiter dictum, that while the tribunal cannot determine the constitutional validity of legislation in a matter in which a party opposes the making of an order on the basis that the legislation is invalid, the tribunal may reach an opinion that the law is invalid and cannot support the claim: in which case the tribunal may decline to grant relief. Alternatively, the tribunal may grant relief, in which case the unsuccessful party may disregard the order or more prudently, take steps to have the Act set aside.[10]
3. This matter was also considered in Re Ronald G Sarina and Secretary to the Department of Social Security [1988] AATA 91, where it was decided that while a tribunal, such as ACAT, has power to consider and form an opinion on the validity or invalidity of an Act of Parliament, that is the full extent of its power; and it is not entitled to come to the conclusion that the Commonwealth Parliament did not have the power to enact the legislation or any part of it. Where there is an issue of constitutionality raised, the role of the tribunal is to interpret the legislation and adopt that construction which would lead to the legislation being regarded as valid.
4. One of the principles contained in the presumption of legality of legislation is a presumption that law is constitutional. Statutory interpretation begins with an initial presumption that the legislature did not intend to pass a law beyond its constitutional power.[11] There is an initial presumption that the Parliament does not intend its laws to "pass beyond constitutional bounds". If the language of a statute is not so intractable as to be incapable of being consistent with that presumption, the presumption should prevail.[12] That is the starting point for this tribunal.
5. In Brown & Commonwealth; Attorney General for the ACT, ACAT interpreted the amendment to the Leases Ordinance[13] and found as follows:
   1. The Commonwealth intended to remove the inconsistency between the Ordinance and the RT Act in order to provide:
      • for standard residential tenancy terms in residential tenancy agreements in the Jervis Bay Territory;
      • for the full application of the RT Act, including the remedies available upon application to the Tribunal; and,
      • that the ACAT should have comprehensive jurisdiction over residential tenancies in the Jervis Bay Territory
6. The provision of a single discrete regime for the regulation of

residential tenancy agreements within the Jervis Bay Territory is the

reason for the amendment. The full application of the RT Act and

comprehensive jurisdiction in the Residential Tenancies Tribunal can

only be achieved if the amendment creates a situation where

neighbouring tenants of a common landlord are subject to one discrete

regime for the regulation of their residential agreements, their rights,

their obligations and remedies available to either party. Any other

interpretation would not sit with the words used by the Commonwealth

in the Explanatory Statement. 7. ACAT concluded as follows: 1. the Commonwealth intended by the 2009 amendment to remove the inconsistency between the Ordinance and the Residential Tenancies Act 1997 (ACT); 2. the Commonwealth intended that following the amendment, the Residential Tenancies Act 1997 (ACT) should fully apply. The explanatory statement uses the phrase "fully apply": that is, that the Act should apply to all residential tenancy agreements between the Commonwealth and its tenants occupying premises at Blocks 124 to 149 in Deposited Plan 9271 /1; and 3. that the RT Act should apply to those residential tenancies agreements from the date of commencement of the amendment.

The lease entered into between the Applicant Tenant and the Respondent Landlord is subject to and governed by the Residential Tenancies Act 1997.

1. The Explanatory Statement to the amendment to the Leases Ordinance evidences a clear intention that the Residential Tenancies Tribunal should have comprehensive jurisdiction to deal with disputes arising from residential tenancies in the Jervis Bay Territory. The Commonwealth intended that ACAT, as the successor in law to the Residential Tenancies Tribunal, should have jurisdiction to deal with matters arising from residential tenancies in the Jervis Bay Territory; and by implication that the Commonwealth as the only residential landlord in the Jervis Bay Territory would be subject to that jurisdiction.
2. The Commonwealth has picked up and applied the Residential Tenancies Act to the Jervis Bay Territory as a law of the Commonwealth pursuant to the territories power. Section 76 of the RT Act provides that the ACAT has exclusive jurisdiction to hear and decide any matter that may be subject of an application to the ACAT under the RT Act; the standard residential tenancy terms or the standard occupancy terms. The issue is not whether the Commonwealth has attempted to vest the judicial power of the Commonwealth in ACAT, but whether the Commonwealth is subject to the jurisdiction of ACAT as a result of its own legislative action.
3. ACAT does not have the power to declare that a Commonwealth Act is invalid on constitutional grounds. From the authority cited above, ACAT should, where such invalidity on constitutional grounds is raised by one of the parties, form an opinion on the validity of an Act. Where the factors to be considered point clearly and uncontroversially to invalidity, the appropriate course would be for ACAT to decline to make orders for relief. ACAT is of the view that it should take a cautious approach to voicing an opinion that a Commonwealth Act is invalid on constitutional grounds because it can be no more than an opinion, and cannot be a positive finding of invalidity. This could have the result of leaving the party relying on the validity of the Commonwealth legislation in legal limbo - with no relief available, and no binding finding with regard to which law ought appropriately to be applied. ACAT prefers the view as set out in Sunol v Collier that unless the tribunal forms the unequivocal opinion that the legislation is invalid the tribunal ought to grant relief, in which case the unsuccessful party may submit to the order, disregard the order or more prudently, take steps to have the Act set aside.
4. ACAT acknowledges the submissions made by both the respondent and the intervener in relation to whether ACAT exercises judicial power and/or administrative power and in relation to the question of whether ACAT could be characterised as a court. The creation of the "super tribunals" such as ACAT has had the effect of creating hybrid bodies which are neither courts of law in the traditional sense, nor purely administrative tribunals. To the extent that ACAT hears civil claims such as contract, negligence, trespass and nuisance it may be exercising traditional judicial functions. When reviewing administrative decisions, and standing in the shoes of the original decision maker, ACAT may be acting in a purely traditionally administrative role. Given the view taken by ACAT in relation to the interpretation and application of the Commonwealth legislation, it is not necessary to consider this matter any further.
5. There are a number of decisions by superior courts whereby various tribunals have been held not to be courts.[14] A decision of the Supreme Court of Queensland Court of Appeal held that the Queensland Civil and Administrative Tribunal (QCAT) is a court of a state. [15] ACAT's functions and constitution are similar to QCAT, however ACAT is not a court of record. None of these decisions is binding upon ACAT, but the Queensland decision is highly persuasive. However, because of the conclusions reached above, and taking into account the decision in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, where it was held that when the Commonwealth legislates in respect of territory courts, it is not bound by the separation of powers doctrine in Chapter III, because Territory courts are not Federal courts as that term is used in section 71 of the Constitution[16], it is not necessary for ACAT to determine whether it is a court.
6. ACAT is therefore not persuaded by the submissions of the Commonwealth that its jurisdiction to regulate and make decisions with regard to disputes arising from residential tenancies matters in the Jervis Bay Territory is an exercise of the judicial power of the Commonwealth. ACAT's jurisdiction arises under Commonwealth legislation which relates to the Jervis Bay Territory, and under which the Commonwealth clearly intended that the Commonwealth as landlord should be subject to the provisions of the Residential Tenancy Act 1997 (ACT) (JBT), which includes the exclusive jurisdiction of ACAT as set out in section 76 of that Act.

Australian Government Solicitor (for the Respondent)

[1] ACAT acknowledges and greatly appreciates the assistance and advice given to the

tribunal by Doctor Bede Harris, Senior Lecturer and Law Discipline Head, Charles

[2] The Commonwealth relied upon Commonwealth of Australia v Anti-Discrimination

Tribunal (Tasmania) [2008] FCAFC 104, where Kenny J stated, at [210], 'Federal

jurisdiction exists in a proceeding to which the Commonwealth is a party, simply

[3] See Bede Harris, Constitutional Law Guidebook, Oxford University Press, 2009,

[4] (2008) FCAFC 104

[5] See the decision of Weinberg J in Commonwealth of Australia v Anti-Discrimination

Tribunal (Tasmania) [2008] FCAFC 104 at paragraphs 118 to 134

[6] Law Reform Commission, Discussion Paper 64, The judicial power of the

Commonwealth: A review of the Judiciary Act 1903 and related legislation. See

[7] (1997) 190 CLR 410; (1997) 146 ALR 495; (1997) 71 ALJR 1254

[8] [1904] HCA 38; (1904) 2 CLR 139 at 155 - 156, as discussed at [5].

[9] See Western Australia v The Commonwealth Native Title Act Case (1995)

[1995] HCA 47; 183 CLR 373 at 484 - 485

[10] Sunol v Collier [2012] NSWCA 14; (2012) 258 FLR 282 at 285. The

[11] Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd (1926) 38

CLR 153 as discussed in DC Pearce & RS Geddes, Statutory Interpretation in

[12] Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003]

[13] [2012] ACAT 83 (3 January 2013)

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

FCAFC 104; Trust Company of Australia Ltd (t/as Stockland Property Management)

v Skiwing Pty Limited [2006] NSWCA 185

[15] Owen v Menzies and Another [2012] QCA 170

[16] Bede Harris, Constitutional Law Guidebook, op. cit., at p.129