Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30

Ms K Walker QC, Solicitor-General for the State of Victoria, with Mr L Brown

Application at VCAT under the Equal Opportunity Act

Referral of questions of law from VCAT to the Court of Appeal

(1) Investment of the judicial power of the Commonwealth

(2) Institutional independence and impartiality

(3) Organisational features of VCAT

(4) Authorities on the status of State tribunals

Question 2: Does the VCAT proceeding involve the exercise of judicial power?

Question 3: Does VCAT nevertheless have the authority to decide a suit against the Commonwealth?

1 In Burns v Corbett[1] the High Court held that there is a negative implication from Ch III of the Commonwealth Constitution that federal jurisdiction can only be exercised by an institution of a State that is a 'court of a State'.[2] The issue has now arisen[3] whether the Victorian Civil and Administrative Tribunal ('VCAT') is a court of a State and, if it is not, whether, in any event, it can exercise State judicial power to determine a suit against the Commonwealth of Australia. An affirmative answer to the latter question gains some support from the judgment of Basten JA in Attorney General (NSW) v Gatsby.[4]

2 In our view, VCAT is not a court of a State. Nor can it exercise State judicial power to determine a suit against the Commonwealth. We reject the support that is sought to be derived from Gatsby. We consider that the proceeding involves the exercise of judicial power. The Commonwealth is a party to the proceeding. The proceeding is a 'matter' falling under s 75(iii) of the Constitution. It can only be determined through the exercise of federal jurisdiction. It follows, from Burns v Corbett, that a suit against the Commonwealth can only be determined by an institution of a State that is a court of a State and that VCAT cannot hear and determine the claims brought against the Commonwealth in this proceeding.

Application at VCAT under the Equal Opportunity Act

3 On or about 17 April 2018 Selinda Meringnage ('Meringnage') applied to VCAT for orders under the Equal Opportunity Act 2010 (Vic) ('the EO Act').[5] He alleges that he had been discriminated against on the ground of his race and nationality[6] by Interstate Enterprises Pty Ltd ('Interstate'), a recruitment agency, on behalf of RUAG Australia Pty Ltd ('RUAG'), a company describing itself in its advertising material as a 'global technology leader in the aerospace and defence industries' that 'provide[s] product and service solutions to the Australian Defence Force'. His application to VCAT states that he had submitted an application for a position as a Trade Assistant - Metal Components in response to a recruitment advertisement placed by Interstate on behalf of RUAG but was told, on or about 16 April 2018, that his nationality prohibited him from being successful. Meringnage is Sri Lankan.[7] The advertisement[8] reads as follows:

Trades Assistants - Metal Components

RUAG is a global technology leader in the aerospace and defence industries with their products and service solutions used on land, sea, air and even in space. Their headquarters is in Berne (Switzerland) and they employ more than 8700 employees at facilities all around the world including Switzerland, Germany, Sweden, Finland, France, Austria, Hungary, USA and Australia.

RUAG Australia is a rapidly growing, dynamic and progressive company specialising in the manufacture, maintenance, repair and overhaul of aircraft components and systems. They provide product and service solutions to the Australian Defence Force and to national and international partner companies in the aerospace and defence industries. They are highly skilled and experienced, taking pride in being responsive, adaptable, reliable and trustworthy when working collaboratively alongside their customers. They are a learning organisation, and offer career growth and development opportunities, within Australia and overseas.

About the Roles

As a result of substantial growth associated with the increased production and demand for the new F35 Stealth Fighter Jet, the business is seeking to engage a number of highly skilled labourers and/or trade assistants. These roles will support the CNC Machining shop and the MRO Division of the business (which looks after the F18, PC3 and C130H & C130J Hercules), by ensuring productivity to the required level is obtained. The work is not difficult, however [it] is precise and requires strong attention to detail and work order specifications. There is no scope for errors with quality absolutely paramount. Strong written and communication skills are required to ensure the completion of all associated documentation. Tasks will include de-burring components, blending out of metal surface imperfections, removing and applying specialised metal coatings and finishes, visual inspection and quality control tasks, basic testing and assembly etc.

It is expected those successful in these roles will go on to become CNC Machinists, Electroplaters, Aircraft Mechanics, Spray Painters, NDT Technicians etc. with the ability to secure adult apprenticeships and/or further educational support from RUAG.

Key Selection Criteria

• To apply for these positions you MUST be an Australian Citizen - NOT negotiable.
• ITAR restrictions apply for security requirements - If you do not satisfy these requirements you cannot be considered.
• Possess a proven background of mechanical aptitude, including the competent and confident use of powered hand tools and machinery.
• Have previous exposure as a TA or Skilled Labourer within a Workshop/Components Manufacturing Environment.
• You MUST have a full and current driver's licence.
• You MUST be able to pass a police clearance and Drug & Alcohol test.
• You MUST have a positive attitude and strong work ethic and [be] flexible to support the needs of the business by way of shifts, rosters and rotating work stations etc.
• You MUST have strong communication and written skills and understand there is a lot of paperwork which must be accurately handled and completed with every task performed.

On offer to attract strong interest from candidates who are genuine about securing a long-term position and potentially gain formal trade qualifications is an attractive hourly rate of $27.08. Working hours are Monday to Thursday 7.15am to 4.15pm and Friday 7.15am - 12.30pm. There is overtime available and an afternoon shift has just commenced. Superannuation is in addition to the hourly rate.

All positions will commence as 'Full-time' Casual employees with Tecside and [o]n completion of the probationary period, transfer to RUAG as a permanent employee (subject to satisfactory performance).

Click on the "APPLY FOR THIS JOB" icon above. Any questions please call Stacey on [number omitted].

Kirk Devers[9]

4 Meringnage contacted 'Stacey' who advised him that, as the advertisement states:

ITAR [International Traffic in Arms Regulations] restrictions apply for security requirements - If you do not satisfy those requirements you cannot be considered.

5 Meringnage alleges that he was told that anyone from a prohibited nationality would not be successful. Meringnage asked if RUAG had an exemption from the EO Act in respect of its recruitment for trade assistants and was told RUAG did not hold an exemption.

6 He filed his complaint with VCAT against Interstate, RUAG, and the Department of Defence[10] alleging against each of the three respondents, respectively, that it discriminated or authorised or assisted discrimination against him. He later lodged an amended application[11] in which he supplemented the 'details of the incident' with some further information about the operation of the ITAR including the prohibition on nationals from a 'proscribed country' accessing ITAR information:

1. The US Department of State (Department of State) is responsible for the export and temporary import of defence articles and services governed by the Arms Export Control Act (AECA). The International Traffic in Arms Regulations (ITAR) are regulations made under the AECA. The ITAR restricts and controls defence and military related technology exports from the United States of America, in order to safeguard American national security and further American foreign policy objectives.
2. The ITAR regime regulates information and material pertaining to items included in the US Munitions List and the Missile Technology Control Regime Annex. Sharing such information or materials with foreign persons requires authorisation from the Department of State. Additionally, 're-transfer' and 're-export' of items on these lists by foreign persons is prohibited, unless the Department of State specifically authorises those foreign persons to do so.
3. The ITAR places restrictions on who can access US defence technology through its 'Proscribed Countries List'. Nationals from a 'proscribed country' who have not obtained prior approval from the Department of State are prohibited from accessing ITAR controlled information, articles and services.[12]

7 It would appear that a 'proscribed country' is a country on ITAR's 'Proscribed Countries List'. It would also appear that Sri Lanka is a 'proscribed country', with the consequence that its nationals (including Meringnage) are prohibited from accessing ITAR controlled information, articles, and services in relation to the international traffic in arms.

8 The orders Meringnage seeks in his amended application are three-fold. He seeks an order that Interstate and RUAG discontinue their reliance on ITAR in recruitment and, relevantly, he seeks an order from VCAT directing the Commonwealth to introduce a public awareness program about exemptions granted to employers in respect of ITAR. The terms of the orders Meringnage seeks are:

1. An order under s 125(a)(i) of the Equal Opportunity Act 2010 (Vic) that the first and second respondents discontinue their reliance on the International Traffic in Arms Regulations as a basis for denying the applicant employment on account of his nationality.
2. Further or in the alternative to (a), an order under s 125(a)(i) and/or (iii) of the Equal Opportunity Act 2010 (Vic) that the first and second respondents discontinue their reliance on any exemption which permits them to rely upon the International Traffic in Arms Regulations as a basis for denying the applicant employment on account of his nationality.
3. An order under s 125(a)(iii) of the Equal Opportunity Act 2010 (Vic) that the third respondent carry out a public awareness programme to educate the public about the exemptions granted to employers who are required to comply with the International Traffic in Arms Regulations.

9 In the VCAT proceeding the Commonwealth is clearly a party, namely, the third respondent, and specific relief is sought against it in the form of a broad mandatory injunction.

Referral of questions of law from VCAT to the Court of Appeal

10 On 12 June 2018 a Senior Legal Officer of the Department of Defence of the Commonwealth of Australia wrote to the Acting Registrar of the Human Rights Division of VCAT indicating that the Commonwealth, represented by the Department of Defence, objected to the jurisdiction of VCAT on the basis that VCAT is not a court of a State within Ch III of the Constitution and cannot exercise judicial power against the Commonwealth or a person being sued on behalf of the Commonwealth. The Commonwealth sought to be removed as a party to the application.

11 VCAT did not permit the Commonwealth to be removed as a party. Instead, at a directions hearing on 17 October 2018, the Vice President of VCAT, Judge Hampel, on her own initiative, considered referring a question of law to the Court of Appeal pursuant to s 96 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act'). By that date the Attorney-General for Victoria ('Victoria') had intervened in the VCAT proceeding. Section 96 of the VCAT Act reads:

(1) The Tribunal, with the consent of the President, may refer any question of law arising in a proceeding to the Trial Division of the Supreme Court or the Court of Appeal for decision.

(2) A referral may be made under subsection (1) on the application of a party or on the Tribunal's own initiative.

(3) If a question of law has been referred to the Trial Division or the Court of Appeal, the Tribunal must not -

• (a) make a determination to which the question is relevant while the referral is pending; or
• (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Trial Division or Court of Appeal on the question.

12 Judge Hampel made directions for the preparation of a draft special case in accordance with r 5.03 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018[13] and identified two questions for which she would seek the consent of the President of VCAT for the referral.

13 On 2 November 2018 the President of VCAT, Quigley J, gave her consent to the referral of the two proposed questions of law. In a letter to Judge Hampel, she said:

I refer to your Orders dated 17 October 2018 in proceeding H121/2018 (the Orders).

I note the following:

1. The Attorney-General for Victoria intervenes in the proceeding under s 73(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
2. The Victorian Civil and Administrative Tribunal (the Tribunal) is considering referring, on its own initiative, a question of law to the Court of Appeal under s 96 of the VCAT Act, in the following terms:
   1. Is the Victorian Civil and Administrative Tribunal a 'court of a State' within the meaning of Ch III of the Constitution and so capable of exercising judicial power in relation to a matter in which the Commonwealth is a party; and
   2. If the answer to Question 1 is 'No', does s 125 of the Equal Opportunity Act 2010 (Vic) require the Tribunal to exercise judicial power in this proceeding;

(Together, the proposed questions)

...

In my capacity as President of the Tribunal, I formally give my consent pursuant to s 96 of the VCAT Act for the Tribunal to refer the proposed questions of law arising in proceeding H121/2018 to the Court of Appeal, the final form of which are to be settled in accordance with the Orders.

14 On 7 January 2019 Judge Hampel referred three questions of law to the Court of Appeal in the form of a special case in which she describes Meringnage's allegations against the three respondents of discriminating against him, or authorising or assisting in discrimination against him. The special case contains an agreed statement of facts, namely:

1. On 17 April 2018 the Applicant filed an application in VCAT seeking orders under the Equal Opportunity Act 2010 (Vic).
2. On 5 December 2018, the Tribunal granted the applicant leave to file an amended application, a copy of which is Exhibit SC-1.
3. By the amended application, the Applicant alleges that:
   • (a) On 22 February 2018, he applied for a job advertised by the first respondent, a recruiting company, on behalf of the second respondent, an aerospace technology company.
   • (b) The first respondent advertised the job in a way that discriminated against the Applicant on the ground of 'race and nationality', in contravention of s 16 of the Equal Opportunity Act 2010 (Vic), in that he was advised that applicants need to comply with the International Traffic in Arms Regulations (ITAR) and anyone who did not because of their nationality (which would include the Applicant) would not be successful.
   • (c) The applicant alleges, against each of the respondents, that they authorised or assisted in discrimination or actually discriminated against him.

15 In the special case Judge Hampel also described the three orders Meringnage asks VCAT to make, including the order sought against the Commonwealth.[14] She then identified three questions of law raised in the proceeding:

1. Is the Victorian Civil and Administrative Tribunal a 'court of a State' within the meaning of Ch III of the Constitution and so capable of exercising judicial power in a matter in which the Commonwealth is a party?
2. If the answer to Question 1 is 'No', would the grant of relief in this proceeding, pursuant to s 125 of the Equal Opportunity Act 2010 (Vic) involve the exercise of judicial power by the Tribunal?
3. In light of the answers to Questions 1 and 2, does the Tribunal have authority to decide the application against the Commonwealth?

16 The Commonwealth filed a Notice of a Constitutional Matter, pursuant to s 78B of the Judiciary Act 1903 (Cth),[15] setting out the three questions of law referred and the Attorney-General for Victoria filed an additional s 78B Notice[16] explaining that Question 3 raises the constitutional issue of whether VCAT has authority to decide the application because there is no 'matter' for the purpose of s 75[17] of the Constitution.

17 It is apparent that the first two questions referred are in almost identical terms to those to which the President of VCAT gave her consent. The third question was not expressly consented to by the President.

18 An issue arose as to whether this Court had jurisdiction to hear and determine Question 3 if s 96 of the VCAT Act requires that the President gives her consent to the final form of the questions of law arising in a proceeding. That is, does s 96 permit the President to allow the referring member of VCAT to 'settle' the final form of the questions of law to be referred after her consent in general terms has been obtained? The issue was raised with the parties after the hearing[18] and they jointly wrote to the President of VCAT and requested that she consent to the referral of Question 3 to the Court in the specific terms set out above. The President gave her consent on 18 November 2019 and Judge Hampel referred Question 3 on 20 November 2019. Accordingly, no issue arises as to the jurisdiction of this Court to answer Question 3.[19]

_(1) Investment of the judicial power of the Commonwealt_h

19 The judicial power of the Commonwealth can be vested in the courts mentioned in s 71 of the Constitution and not otherwise. Section 71 relevantly provides:

71 Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

20 Section 73 of the Constitution confers appellate jurisdiction on the High Court from all judgments, decrees, orders, and sentences, relevantly, of any court exercising federal jurisdiction, or of the Supreme Court of any State, and the judgment of the High Court in all such cases shall be final and conclusive.

21 The scope of federal jurisdiction is defined by the 'matters' identified in ss 75 and 76 of the Constitution; those sections identify the various heads of Commonwealth judicial power.[20]

22 Section 75 of the Constitution confers original jurisdiction on the High Court in a range of 'matters':

75 Original jurisdiction of High Court

In all matters -

(i) arising under any treaty;

(ii) affecting consuls or other representatives of other countries;

(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv) between States, or between residents of different States, or between a State and a resident of another State;

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

23 Section 76, which is an exclusive source of power for the legislative conferral of original jurisdiction on the High Court,[21] allows for additional original jurisdiction to be conferred by laws passed by the Commonwealth Parliament in a further range of 'matters':

76 Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter -

(i) arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by the Parliament;

(iii) of Admiralty and maritime jurisdiction;

(iv) relating to the same subject-matter claimed under the laws of different States.

24 Section 77(iii) confers power on the Commonwealth Parliament to invest federal jurisdiction in any 'court of a State'. Section 77 provides:

With respect to any of the matters mentioned in the last two sections the Parliament may make laws -

(i) defining the jurisdiction of any federal court other than the High Court;

(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

(iii) investing any court of a State with federal jurisdiction.

25 The power of State courts to determine any of the matters falling under federal jurisdiction in the exercise of State judicial power is removed from those courts, pursuant to s 39(1) of the Judiciary Act, and State courts are invested with federal jurisdiction to determine those range of matters pursuant to s 39(2) of the Judiciary Act within their own limits as to locality, subject matter, or otherwise. Section 39 relevantly provides:

39 Federal jurisdiction of State Courts in other matters

(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 ...

26 It was common ground between the parties on the referral that if the proceeding brought in VCAT is a matter within federal jurisdiction it can only be heard and determined by VCAT if VCAT is a 'court of a State'. Burns v Corbett[22] is authority for the proposition that a State Parliament cannot confer State judicial power on a body that is not a 'court of a State' within the meaning of s 77(iii) of the Constitution in respect of any proceeding which comes within the matters listed in ss 75 and 76 of the Constitution.

27 Question 3, to be addressed below, raises the further question of whether the proceeding in VCAT falls outside of federal jurisdiction, because there is no 'matter' for the purposes of s 75 of the Constitution, despite the Commonwealth being a party to that proceeding. If the VCAT proceeding does not involve a 'matter' it might be heard and determined by VCAT despite VCAT not being a 'court of a State'.

28 However, the primary issue is that identified by Question 1, namely, is VCAT a 'court of a State' within the meaning of s 77(iii) of the Constitution?

(2) Institutional independence and impartiality

29 The Commonwealth, in support of its objection to VCAT exercising jurisdiction,[23] submits that VCAT is not a court of a State because it fails to exhibit the characteristics of a 'court of a State' within the meaning of the constitutional expression in s 77(iii). To similar effect, Victoria submits that VCAT does not have '"the essential character of a court" that can receive and exercise the judicial power of the Commonwealth ... [i]f a body does not have this "essential character", it cannot receive and exercise Commonwealth judicial power'.[24]

30 The Commonwealth and Victoria accept that, because there is no strict separation of powers at the State level,[25] State courts can exercise administrative power as well as State judicial power and, conversely, State tribunals are not precluded from exercising State judicial power. Thus, the fact that a body exercises State judicial power is not sufficient to make that body a court of a State. Nevertheless, the Commonwealth submits that a State body is unlikely to be a 'court' unless it exercises substantial judicial functions. In any event, a State Parliament can choose to confer some State judicial functions on a body that has the character of an administrative tribunal and not a court. Given that legislative choice, it is relevant to consider the designation the Parliament has selected. The Commonwealth and Victoria submit that the label chosen may be instructive, although they accept that the character of a body is to be determined as a matter of substance. The composition of the body, as made up of judges or non-judicial members, is also instructive.

31 The Commonwealth submits that, more fundamentally, a constitutional requirement of a court of a State is that it must be, and appear to be, an independent and impartial tribunal.[26] Victoria relies on Forge v Australian Securities and Investments Commission[27] as authority for the proposition that the requirements of impartiality and independence are the touchstone for any court of a State.[28]

32 These principles were firmly affirmed in K-Generation Pty Ltd v Liquor Licensing Court[29] where Gummow, Hayne, Heydon, Crennan and Kiefel JJ said:

There is no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a 'court of a State' and that in respect of a body that is a 'court of a State', they may confer non-judicial powers. However, consistently with Ch III, the States may not establish a 'court of a State' within the constitutional description and deprive it, whether when established or subsequently, of those minimum characteristics of the institutional independence and impartiality identified in the decisions of this Court.[30]

33 In general terms, the Commonwealth and Victoria submit that VCAT lacks the minimum characteristics of institutional independence and impartiality necessary to fall within the constitutional description of a 'court of a State'.

34 In response, Meringnage submits that it would be wrong to apply the standards which guarantee institutional independence and impartiality in respect of federal courts to courts of a State. Federal courts are creatures of federal statutory law, and their role and composition are strictly controlled by the requirements of Ch III. They may not exercise any jurisdiction other than the judicial power of the Commonwealth (as identified in ss 75 and 76 of the Constitution) together with any accrued or associated jurisdiction. Federal courts are composed of 'Justices' whose appointment, tenure and remuneration must comply with s 72 of the Constitution, including appointment for a term expiring upon the age of 70 years, with no risk of removal or diminution of remuneration during continuation in office based on the provisions of the Act of Settlement 1700 (Imp).[31] By contrast, State legislatures have 'a degree of institutional and procedural flexibility ... which may travel beyond the limits permissible in federal courts'.[32] While it is accepted that 'independence and institutional impartiality mark a court apart from other decision-making bodies',[33] it is also accepted that '[n]o exhaustive statement of what constitutes that minimum in all cases is possible'.[34] Meringnage submits that the organisational features and functions of VCAT do meet the necessary requirements to be a court of a State.

35 It is important to identify with some precision the organisational features of VCAT including the functions it performs.

36 Section 8(1) of the VCAT Act establishes the 'Victorian Civil and Administrative Tribunal'. VCAT is not established expressly as a 'court' nor as a 'court of record'. It is established as a 'tribunal'.

37 VCAT consists of a President, Vice Presidents, Deputy Presidents, senior members and ordinary members, and principal registrars and registrars. The President and Vice Presidents are the only judicial members. As at 30 June 2018 VCAT had 222 members in total, 15 of whom were judicial members (and 207 were non-judicial members), with eight Deputy Presidents, 23 senior members, nine sessional[35] senior members, 29 ordinary members and 138 ordinary members who were sessional.[36] As at 30 June 2019, VCAT had a total of 225 members, 13 of whom are judicial members (and 212 were non-judicial members). It had eight Deputy Presidents, 27 senior members, nine sessional senior members, 32 ordinary members and 136 sessional members.[37]

38 The President is required to be a serving judge of the Supreme Court.[38] Vice Presidents are serving judges of the County Court.[39] One or two of the County Court judges who serve as Vice Presidents are 'assigned to work at VCAT at any one time'.[40] This would appear to bring the total of full-time judicial officers, at any one time, to three. Service in the office of President or of Vice President is to be taken for all purposes to be service in the office of judge of the Supreme Court or County Court respectively.[41]

39 A Deputy President must be an Australian lawyer of not less than five years standing.[42] A senior member must also have been an Australian lawyer for not less than five years or have, in the opinion of the Minister, extensive knowledge or experience in relation to any class of matter in respect of which functions may be exercised by the Tribunal.[43] An ordinary member must either be an Australian lawyer (but no length of time is specified for their having that status)[44] or have, in the opinion of the Minister, special knowledge or experience in relation to any class of matter in respect of which functions may be exercised by the Tribunal.[45]

40 There can be as many Vice Presidents, Deputy Presidents, senior members and ordinary members appointed to VCAT as are required for the proper functioning of the Tribunal.[46]

41 Members are appointed by the Governor in Council on the recommendation of the Minister.[47]

42 Non-judicial members are obliged to take an oath or affirmation of office.[48]

43 The President holds office for a period not exceeding five years.[49] However, the appointment of a Supreme Court judge as President of VCAT does not affect the President's tenure of office as a Supreme Court judge.[50] The Vice Presidents also hold office for a period not exceeding five years[51] but this does not affect their tenure as judges of the County Court.[52] Deputy Presidents, senior members and ordinary members hold office for a period of seven years or until the person attains the age of 70 years, whichever occurs first.[53]

44 A Deputy President may only be appointed to VCAT on a non-sessional basis.[54] However, senior members and ordinary members may be appointed on a sessional or non-sessional basis.[55] Appointment on a sessional basis means that the member is neither full-time nor part-time but 'is available as required'.[56]

45 The full-time members of VCAT are the President and Vice Presidents[57] and those Deputy Presidents, senior members or ordinary members who are appointed on a non-sessional basis and who are not undertaking the duties of office on a part-time basis.[58]

46 The remuneration and allowances of a member are determined from time to time by Order of the Governor in Council. There may be different terms and conditions for different classes of members. There is no prohibition on the remuneration and allowances of non-judicial members being reduced.[59] The Judicial Entitlements Panel, established under the Judicial Entitlements Act 2015 (Vic), is empowered to provide advisory opinions to the Attorney-General in relation to the entitlements of judicial officers in Victoria, including the judicial members of VCAT, as well as VCAT's non-judicial members.[60]

47 Non-judicial members are eligible for promotion within VCAT by the Governor in Council on the recommendation of the Minister.[61] The recommendation by the Minister is in turn dependent on the President of VCAT recommending the appointment to the Minister.[62] Specifically, a senior member may be appointed as a Deputy President and an ordinary member may be appointed as a senior member for the remainder of the member's term of office.

48 The Governor in Council may amend the appointment of a senior or an ordinary member from that of appointment on a sessional basis to the continuation of that appointment on a non-sessional basis.[63]

49 Members are eligible for reappointment.[64]

50 The office of a judicial member becomes vacant if the member ceases to hold the office of judge.[65] The office of a non-judicial member becomes vacant if the member becomes an insolvent under administration.[66]

51 A non-judicial member may be removed by the Governor in Council on the recommendation of the Attorney-General. The Attorney-General may make such a recommendation after receiving a report by an investigating panel that facts exist that could amount to proved misbehaviour or incapacity such as to warrant removal of the officer from the office.[67]

52 VCAT is obliged to accord procedural fairness.[68] The hearings ordinarily take place in public. It must provide reasons for its final orders.[69] It is not bound by the rules of evidence and can inform itself as it sees fit.[70]

53 VCAT performs administrative decision-making as part of the executive government. It has original jurisdiction, for example, under s 344 of the Residential Tenancies Act 1997 (Vic) ('the RTA') for the making of a possession order (eviction) by a person who is entitled to possession of a rented premises. In its original jurisdiction VCAT is the primary decision-maker.[71] It also has a review jurisdiction. Section 51 of the VCAT Act provides for VCAT to perform a merits review function in respect of a decision made by an administrative decision-maker in which it has all the functions of the decision-maker and can set aside the decision under review and make another decision in substitution for it.[72] Section 57 provides that VCAT is obliged, in the exercise of its merits review function, to apply a statement of government policy where the relevant Minister has certified that, at the time the decision under review was made, a statement of policy applied to decisions of that kind.

54 VCAT can make monetary and non-monetary orders. Judicial members or members who are Australian lawyers have the power to grant injunctions, including interim injunctions, if it is just and convenient to do so.[73] Presidential members or members who are Australian lawyers may grant declarations.[74] VCAT can make orders for costs and impose conditions on orders that are 'necessary or desirable to give effect to an order or other decision'.[75] It may make any order necessary to give effect to a settlement.[76] An enabling enactment may also confer specific powers to make orders,[77] including civil penalties.[78]

55 Monetary orders can be enforced by filing a certified copy of the order in an appropriate court; once filed the order is taken to be an order of the appropriate court subject to the ordinary process of enforcement for that court.[79] Non-monetary orders may be filed in the Supreme Court and enforced accordingly.[80]

56 Judicial members of VCAT have the power to make findings of contempt and they can commit any person found guilty of contempt to a term of imprisonment of not more than five years or impose a fine.[81]

57 As noted above,[82] VCAT has the power to refer questions of law to the Supreme Court. When it does so, s 96(3) provides that it cannot proceed or make a determination that is inconsistent with the opinion of the Supreme Court.[83]

(4) Authorities on the status of State tribunals

58 There have been multiple authorities that have considered whether various bodies constitute a 'court of a State', some of which have specifically held that VCAT is not a court of a State. None of the authorities is binding on this Court.

59 In Director of Housing v Sudi[84] this Court held that, in the exercise of VCAT's original jurisdiction under the RTA to make possession orders, VCAT did not have the power to undertake collateral review of the validity of a decision of the Director of Housing to apply for a possession order and nor did it possess a judicial review jurisdiction. Weinberg JA alone[85] went on to examine the powers and functions of VCAT and held that it was not a court of a State. In doing so, he preferred the reasoning of Kenny J in Commonwealth v Anti-Discrimination Tribunal (Tas),[86] who had held that the Tasmanian Anti-Discrimination Tribunal ('the ADT') was not a court of a State, to that of Heerey J, who in Commonwealth v Wood[87] held that the ADT had that status.

60 In Wood Heerey J, in holding that the ADT was a State court, recognised that, under the Anti-Discrimination Act 1998 (Tas) ('the ADT Act'), the ADT was not referred to as a 'court'; most of its members were not lawyers; members did not take an oath of office; they had no security of tenure; proceedings were commenced by referral by the Tasmanian Anti-Discrimination Commissioner, not the complainant; the ADT could start or continue an inquiry in the absence of the complainant or any other relevant person; there was no right to legal representation but it could be permitted; the ADT was not bound by the rules of evidence; it was required to proceed with as little formality as possible; and, while hindering proceedings or insulting persons performing tribunal functions amounted to an offence the ADT did not have powers of contempt.[88] In favour of its status as a State court, Heerey J noted that its function was to apply legal standards to the facts as found, and not to operate by way of conciliation, arbitration or rule-making;[89] although called an 'inquiry' the proceeding before the ADT was essentially inter partes and adversarial - there must have been both a complainant who had made a complaint and a respondent against whom the complaint was made; the ADT was obliged to give reasons if requested by a party to do so; its members enjoyed immunity for conduct done in good faith; hearings were to be held in public unless it ordered otherwise; it was obliged to observe natural justice; evidence could be taken on oath or affirmation; it had power to summons witnesses; it was empowered to make orders traditionally granted by courts, including injunctive relief; it could make costs orders if considered justified; orders of the ADT were enforceable as if they were orders of the Supreme Court;[90] and, most importantly, a person against whom an order is made could appeal to the Supreme Court on a question of law or fact.[91]

61 Heerey J emphasised that the entitlement of a party to appeal on a question of law or fact assisted in integrating the ADT into the State of Tasmania's judicial system. He contrasted this with the typical restraints on appeals from administrative tribunals, limited to questions of law alone, in recognition of their specialist expertise on fact and policy. He said:

A feature that commonly distinguishes administrative tribunals and other administrative decision-makers from courts is that the former are made the sole repository of questions of fact and policy. Judicial review or appeal is typically limited to questions of law, as for example in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), or confined to statutory grounds such as those contained in ss 17 and 20 of the Judicial Review Act 2000 (Tas) or common law grounds: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163. A full appeal on fact and law suggests that the body whose decisions are subject to such rights is a court because it is a part of a system which resolves, at trial and appellate level, legal and factual disputes between citizens and between state and citizen.[92]

62 The enforceability of the ADT's orders by the Supreme Court without the need for any further judicial authorisation also confirmed the ADT's integration into the State's judicial system. Heerey J emphasised that there is no single ideal model of judicial independence and that what is critical is that members of a tribunal 'be free from arbitrary or discretionary removal from office'.[93] He regarded as significant that judicial review would be available in respect of a removal decision. The Supreme Court could exercise its supervisory jurisdiction in respect of an improper suspension or dismissal of a tribunal member. He considered that the ADT Act carried a promise to the Tasmanian public that the ADT would hear and determine complaints of unlawful discriminatory conduct fairly and independently and order remedies for breach, including, where relevant, against the Tasmanian government.[94]

63 In Commonwealth v Anti-Discrimination Tribunal (Tas)[95] Kenny J addressed the issue of whether the ADT is a court of a State and in doing so refused to follow Heerey J.[96]

64 Her Honour accepted that the question of whether a decision-making body satisfies the constitutional requirements of independence and impartiality may not admit of an easy answer; it will turn on the body's constitutive legislation, considered in light of history, constitutional convention, and institutional and governmental relationships. She noted that courts of summary jurisdiction in Australia, both before and after federation, were constituted by non-judicial officers, namely, Justices of the Peace or public servants, but she observed that courts and other decision-making bodies had changed since that time, as had the conventions for protecting independence and impartiality. In respect of the ADT, the decisive factor was the absence of any constitutional or legislative provision precluding removal from office at any time by the Minister at will.[97] This supported her conclusion that it was not a court of a State. The ADT Act contained no provision governing the tenure of members of the Tribunal or providing for their removal. It did not otherwise have the benefit of history, constitutional convention, or any special institutional or governmental arrangement supporting its status as a State court.[98]

65 Her Honour considered that Heerey J in Wood had given too little weight to the fact that members of the ADT were not protected from removal at will by the executive and she regarded the availability of judicial review as failing to offer a meaningful safeguard, given that the power to remove was particularly broad. The absence of any provision for the remuneration of ADT members (despite members in fact having been remunerated) was also significant, security of remuneration being a basic attribute of judicial independence.

66 In Sudi Weinberg JA found Kenny J's reasoning 'compelling' as to what is required for a body to constitute a 'court' in which federal jurisdiction may be invested;[99] he regarded her decision as providing a useful touchstone to consider the status of VCAT. He said:

VCAT is, of course, an independent statutory body. None the less, 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.[100]

67 In Qantas Airways v Lustig[101] Perry J relied upon the reasoning of Weinberg JA in Sudi to conclude that VCAT is not a State court. The proceeding involved an application by Qantas Airways Ltd ('Qantas') for a declaration that VCAT lacked jurisdiction to hear and determine proceedings involving alleged contraventions of the Fair Trading Act 1999 (Vic) and breach of contract against Qantas because Qantas relied upon a Commonwealth law, the Civil Aviation (Carriers' Liability) Act 1959 (Cth), as a complete defence. Perry J accepted that reliance upon that defence resulted in the proceedings arising under federal law and that VCAT could not exercise federal jurisdiction not being a 'court of a State'. She made the declaration sought and issued a writ of prohibition against VCAT, directing that VCAT take no further step in the proceeding save for making orders for the dismissal of the proceeding.

68 Her Honour accepted that VCAT exercises judicial power[102] and that there is no constitutional limitation on its exercise of State judicial power alongside its administrative functions. She noted its broad powers to grant remedies and the members' enjoyment of immunities and protections on the same basis as a judge of the Supreme Court of Victoria. However, invoking the reasons of Spigelman CJ in Trust Company of Australia Ltd v Skiwing Pty Ltd[103] she held that those features, including the exercise of judicial power, are not sufficient to make a body a court. She said:

[S]uch features are not necessarily determinative of whether a Tribunal is a court of a State for the purposes of the Constitution ... As Spigelman CJ explained in Skiwing ... in holding that the Administrative Decisions Tribunal (NSW) is not a court of a State:

The exercise of judicial power is a necessary but not a sufficient condition for the characterisation of a decision-making body as a court, even in a context where there is no constitutional overlay. Furthermore, many powers may be either judicial or executive and their classification may depend on the nature of the body which exercises them. Such powers are neutral as indicia for the characterisation of the decision-maker.

In Shell Co of Australia Ltd v Federal Commissioner of Taxation ... Viscount Dunedin, delivering the advice of the Privy Council on appeal from the High Court of Australia, said:

... The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial powers. In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a Court in the strict sense because it gives a final decision; (2) nor because it hears witnesses on oath; (3) nor because two or more contending parties appear before it between whom it has to decide; (4) nor because it gives decisions which affect the rights of subjects; (5) nor because there is an appeal to a Court; (6) nor because it is a body to which a matter is referred by another body.

In Attorney-General v British Broadcasting Corporation ... Lord Edmund-Davies added a list of further matters which were similarly not decisive:

(1) The fact that the tribunal is called a 'court ...'

(2) The necessity of sitting in public.

(3) The fact that the tribunal has power to administer oaths and hear evidence on oath.

(4) The fact that the prerogative writs may issue in relation to the tribunal's proceedings.

(5) The fact that absolute privilege against an action for defamation protects those participating in its proceedings.[104]

69 Her Honour went on to agree with Weinberg JA's analysis of VCAT in Sudi while emphasising three significant features: (1) the failure of VCAT to be designated as a 'court'; (2) its failure to satisfy the test of impartiality and independence, especially given the capacity for reappointment of members and the lack of a guarantee against reduction in remuneration; and (3) the inclusion of non-judicial members:

Despite, therefore, the fact that VCAT has many of the 'trappings' of a court, I agree with Weinberg JA that VCAT is plainly not a court of a State within s 77(iii) of the Constitution and cannot therefore be vested with the judicial power of the Commonwealth: Sudi at [182] (Weinberg JA (Warren CJ and Maxwell P not deciding). Further, while lacking precedential value, this is also the position that VCAT itself has taken: Re ABY and Patient Review Panel [2011] VCAT 905 at [13] (Ross J (in his capacity as President)).

Given the detailed analysis of Weinberg JA in Sudi, it suffices for present purposes to highlight three characteristics relevant to that conclusion.

First, while not necessarily determinative, VCAT is not established as a court in its enacting legislation ... It also exercises a pure merits review jurisdiction in which it stands in the shoes of an administrative decision-maker.

Secondly and crucially, '[f]or a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution' ... However, I agree with Weinberg JA in Sudi ... that VCAT does not satisfy these requirements. ...

In particular, as Qantas submitted:

(a) members are generally appointed for a period of seven years (ss 13(3) and 14(3) of the VCAT Act) and are eligible for reappointment (s 16(2));

(b) members are eligible for internal promotion within the Tribunal (s 16A);

(c) aside from judicial members, members are entitled to remuneration and allowances fixed from time to time by the Governor in Council with no express proscription on reductions, and different remuneration and allowances may be fixed for different classes of members (s 17); and

(d) the Tribunal must act in accordance with certificates issued by the Premier as to disclosure of information about specified matters or matters contained in a document in circumstances covered by s 53 of the VCAT Act, and with statements of Government policy in respect of which a certificate is given under s 57.

Finally, the members of VCAT are not limited to judges and the office held by them is not described as judicial office. Ultimately, however, it may well be that the question of whether members of a tribunal are 'judges' may be no more than a different way of posing the question of whether the tribunal meets the minimum criteria of independence and impartiality so as to be a 'court of a State' within Ch III, as Kenny J suggested in ADT (Tas).[105]

70 Perry J concluded that the VCAT Act ought be construed as limited to 'claims liable to be determined in the exercise of State judicial power'[106] on the basis that it is 'unlikely in the extreme that the State Parliament intended to vest federal judicial power in a tribunal that was plainly not "a court of a State" and which in any event, the State has no power to vest'.[107]

71 The third feature relied on by Perry J as indicative of the relevant non-curial status of VCAT, the inclusion of non-judicial members, is a factor highlighted by Spigelman CJ in Skiwing. In Skiwing the New South Court of Appeal held that the New South Wales Administrative Decisions Tribunal is not a State court. Spigelman CJ (with whom Hodgson and Bryson JJA agreed) concluded that to be a 'court of a State' the decision-making body must be a court of law and this necessitated the performance of the decision-making body's functions by judges. He said:

In order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law. ... One aspect of a court of law is that it is comprised, probably exclusively although it is sufficient to say predominantly, of judges.[108]

72 He went on to emphasise that it is the appointment of judges that creates a court:

As suggested by s 79 of the Commonwealth Constitution[[109]] it is, in my opinion, an essential feature of a court, as that word is used in Ch III, that it be an institution composed of judges ...

In Le Mesurier v Connor ... when considering the meaning of the expression 'court of a State' in s 77(iii) ... Isaacs J said ... '... A Court consists, then, of the Judges, and of them only'.

To similar effect is the observation of Jordan CJ, referring to a new federal court, in Ex parte Coorey ... : 'The essential factor which brings the new Court into actual existence as an operative entity is the appointment of a Judge or Judges'.

In Kotsis v Kotsis ... Windeyer J said that the word 'court' in s 77(iii) means ' ... an existing institution, an organisation for the administration of justice, consisting of judges and with ministerial officers having specified functions'. This definition was adopted in Commonwealth v Hospital Contribution Fund of Australia ... per Mason J and in Harris v Caladine ... per Mason CJ and Deane J. It was also quoted by Gibbs CJ in Commonwealth v Hospital Contribution Fund of Australia ... Windeyer J's focus on an 'institution ... consisting of judges' should be regarded as authoritative.

The powers of a court, including the judicial power of the Commonwealth, may be exercised by the non-judicial officers of a court. ... However, the performance of such functions, in the case of a Federal court must be subject to effective control by judges. ... The Full Court of the Supreme Court of Western Australia has applied this principle, in my view correctly, to a State court exercising federal jurisdiction.[110]

73 In Owen v Menzies[111] the Queensland Court of Appeal disagreed with the proposition endorsed in Skiwing that a court of a State is an institution consisting of judges. In doing so it invoked pre-federation history. The Court held that the Queensland Civil and Administrative Tribunal ('QCAT') is a court of a State for the purposes of Ch III of the Constitution despite the overwhelming majority of its members being non-judicial (there being only two judicial members out of 160 members). McMurdo P remarked that:

[T]his concept of what constitutes a court becomes a 'chicken and egg' argument as it raises the question of what is a judge. The Magistrates Courts of Australian States and Territories are presided over by magistrates, not judges, but there is no doubt that Magistrates Courts are courts of a State under s 77(iii). At the time of federation, Magistrates Courts were commonly constituted by justices of the peace who for the most part were not legally qualified ... 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.[112]

74 The observation of Gummow, Hayne and Crennan JJ in Forge to the effect that a court of a State must 'principally' be composed of permanent judges[113] was understood as being limited in its application to the Supreme Court of a State, not to inferior courts, and it was noted that the observation was made in a different context.[114]

75 Relying upon K-Generation,[115] the Court held that the designation of QCAT as a 'court of record' under its constitutive legislation[116] was a '"very strong consideration" in determining the true nature of the body';[117] indeed a 'compelling factor'.[118] For McMurdo P, the designation of QCAT as a 'court of record' was sufficient in itself to distinguish the circumstances from those explored in Kenny J's judgment in Commonwealth v Anti-Discrimination Tribunal (Tas).[119]

76 The Court did not view as determinative the fact that in QCAT most of the members were removable from office for inefficiency, or conduct that would warrant removal from the public service, because, reflecting the approach of Heerey J in Wood,[120] it considered that a safeguard lay in the supervisory jurisdiction of the Supreme Court on judicial review of removal decisions. It also emphasised, as Heerey J had done in Wood in respect of the ADT,[121] that QCAT was independent and not subject to any control or direction by any Minister and was obliged to apply the law as well as afford procedural fairness. The Court further considered that the restriction on the members who may exercise the contempt powers, namely, only the President or Deputy President, was of no substantial weight because, as recognised in K-Generation, inferior courts before federation may well have lacked the power to punish for contempt.[122]

77 In the more recent case of Gatsby,[123] the New South Wales Court of Appeal[124] declared that the New South Wales Civil and Administrative Tribunal ('NCAT') is not a 'court of a State' for the purposes of Ch III of the Constitution and s 39 of the Judiciary Act. Claims were brought under the Residential Tenancies Act 2010 (NSW) between residents of different States. Bathurst CJ emphasised that a number of features of NCAT, taken in combination, led to the clear conclusion that NCAT is not a State court. Those features include that NCAT is not designated a 'court of record'; the composition of NCAT is such that a considerable number of its members are non-lawyers and a considerable number, both lawyers and non-lawyers, are part-time appointments; there is an absence of security of tenure comparable to the Act of Settlement guarantee; there is eligibility for reappointment; there is an absence of restrictions on other activities in which members can engage; and there is limited protection in respect of removal.[125] Leeming JA also agreed that NCAT is not a State court, in part because it is the successor to the ADT and Skiwing established that the ADT is not relevantly a court of a State.[126] He also pointed to s 54(4) of the constitutive legislation of NCAT that prevents NCAT from proceeding in a manner or making a decision which is inconsistent with the Supreme Court on a question of law referred to it. He regarded this as strongly counter-indicative of NCAT being a State court. He said:

If NCAT were a court, it would be within the curial hierarchy of New South Wales and would therefore be bound as a matter of precedent to proceed consistently with the determination of the Supreme Court. Section 54(4) is thus entirely otiose unless NCAT is not a court. [127]

78 It is apparent that the disparate conclusions reached in the authorities reveal a difference of opinion as to which features of a decision-making body should be afforded significance in resolving the question of whether it satisfies the constitutional expression of being a 'court of a State'.

79 Any resolution of that question in respect of VCAT must begin with an acceptance that the requirements of the constitutional expression are more stringent than those associated with the ordinary meaning of 'court' as used in legislation.[128] In our view, the resolution must also begin with an understanding, as Kenny J recognised in Commonwealth v Anti-Discrimination Tribunal (Tas), that an answer will turn on an examination of the body's constitutive legislation, considered in light of history, constitutional convention, and institutional and governmental relationships.[129] It must also be accepted that there is no single model that satisfies the constitutional requirement that a court capable of exercising the judicial power of the Commonwealth be, and appear to be, impartial and independent.[130]

80 We agree with Weinberg JA in Sudi and Perry J in Lustig that there are multiple features of VCAT that indicate that VCAT is not a 'court of a State'. We consider that it is the aggregation of many of these features that compels the conclusion that VCAT is not a State court. In our view, the most significant amongst those features is the lack of security of tenure for the overwhelming proportion of VCAT members. By lack of security of tenure we do not mean the manner in which the power to remove a member can be exercised, which we discuss below,[131] but rather the fixed-term nature of the appointments coupled with the capacity for reappointment where reappointment is dependent on executive discretion.

81 For judges, an appointment largely reflects Act of Settlement tenure but instead of appointment for life during good behaviour, with no diminution of remuneration during tenure, this has now become appointment until a set retirement age on those terms. This stands in contrast to a fixed-term appointment (even one of seven years) coupled with the potential for reappointment on the recommendation of a Minister of the State (rather than, as a minimum requirement for independence, reappointment being made on the recommendation of an independent panel). Fixed-term appointments, with the potential for reappointment, detract from the independence of VCAT as an institution because there is a risk that an application for reappointment will be granted, or rejected, or appear to be so, on the basis that the Minister approves or disapproves of the member's decision-making history. There is a corresponding risk of a perception that VCAT members will tailor their decisions to favour their chances of reappointment. The arrangements 'place the officeholder wholly at the favour of the executive government respecting a basic attribute of ... judicial independence',[132] namely, continuity of tenure.

82 The difficulty is exacerbated because many of the disputes that come before VCAT involve officers of the executive government as parties and a review of decisions taken by those officers, including, for example, decisions made under the Freedom of Information Act 1982 (Vic),[133] the Planning and Environment Act 1987 (Vic),[134] or the Working with Children Act 2005 (Vic).[135] For the reappointment of a decision-maker to turn on an exercise of discretion by the executive government when it is the role of that decision-maker to affirm or reject decisions taken by that executive government is, in our view, fundamentally inconsistent with the guarantee of independence and impartiality that Ch III requires.[136] Nor can the taking of an oath be considered sufficient to cure that fundamental inconsistency.

83 The composition of VCAT is important here because the overwhelming majority of its members are appointed on those conditions. The bulk of VCAT members are dependent upon the exercise of discretion by the executive government as to whether they continue in their decision-making role. In our view, it is contrary to the necessary independence required of a court of a State for the overwhelming majority of members of a decision-making body to be appointed on the basis of fixed renewable terms.

84 This is not to deny the conscientious performance by VCAT members of their roles, of which there is no doubt. It is, rather, to emphasise that, at an institutional level, which is where the focus must be in applying constitutional requirements, VCAT lacks the guarantee of impartiality and independence required to be a court of a State. Its institutional arrangements are not, and, equally as importantly, do not appear to be, constrained in a manner that provides a guarantee against external pressure by the executive government.

85 This conclusion cannot be gainsaid by an emphasis upon the flexibility of arrangements endorsed in Bradley. There the High Court upheld the validity of an appointment of the Chief Magistrate until the age of 65[137] in circumstances where remuneration had only been provided for a fixed period of two years from the date of the appointment. The validity of the appointment depended upon a construction of the Magistrates Act (NT) that construed the power to make determinations of remuneration[138] as attended by a duty to exercise it from time to time in a manner that did not permit a hiatus where no determination was in operation.[139] The arrangements did not allow for the Administrator of the Northern Territory to determine if an appointee could continue in office, as is in effect allowed by the arrangements in respect of VCAT.

86 With great respect to McMurdo P, we do not agree with the observation in Owen v Menzies that the proportion of judicial members to non-judicial members in a decision-making body is irrelevant. Whether or not the statement in Forge that a court of a State must be composed predominantly of permanent judges was intended to be confined to a Supreme Court is of marginal importance when the circumstances are the very opposite of those contemplated in Forge: VCAT is an institution that is predominantly composed of non-judicial officers. It does not stand at the margins where, not being a superior court, it may be thought that not all the officers need be permanent judges. It is difficult to accept that the constraint identified in Forge has no implications for the curial status of a decision-making body when the ratio of judicial officers to non-judicial officers is, as in the case of VCAT, 13 out of 225, and full-time, at any one time, three out of 225.[140] In those circumstances, the security of tenure of the judicial officers at VCAT (one Supreme Court judge, and, at any one time, two County Court judges) cannot be used to support the proposition that the quality of independence of the institution as a whole is equivalent to judicial independence. This would be, wrongly, to draw an inference about the independence of the institution from the protections afforded to a handful of its officers. It would be to ignore the fact that the vast majority of VCAT members have tenure which is insufficiently long-term, certain, or secure by comparison with the tenure of judges. Basten JA, in Gatsby, expresses a similar view when he says:

There is no reason why a court should be comprised solely of judges; indeed, most are not. ... However, there is a clear difference between a court comprised generally of judges and one which has a small percentage of persons who are, have been or are qualified to be, judicial officers.[141]

87 Furthermore, we consider Meringnage's reliance upon K-Generation to be largely misplaced. There the Licensing Court of South Australia was relevantly constituted by a single member, that member being a District Court judge who, like the President and Vice Presidents of VCAT, continued to enjoy the tenure of a judge of a superior court.[142] A decision-making body is much more readily discernible as a State court if it is composed of a single person who is unequivocally a judge with security of tenure. The circumstances of VCAT are far removed from that situation.

88 The composition of VCAT is important for another reason. As noted, many of the members are part-time or sessional; where 'sessional' the member is neither full-time nor part-time but 'is available as required'.[143] Senior members and ordinary members may be appointed on a sessional basis. In 2019 out of a total of 225 members, 145 were sessional (nine senior members and 136 ordinary members).[144] It can be anticipated that sessional members may engage in other forms of paid employment (including employment in a government department or agency) or business activity. These forms of employment or business activity may occur within the same industry; indeed, if a member has a specialist expertise, it is most likely that they will seek to work in their area of expertise. It is immediately apparent that there is the potential for conflicts of interest to arise.

89 Full-time non-judicial members of VCAT are prohibited from engaging in the practice of any profession or in any paid employment outside the duties of their office.[145] The VCAT ACT otherwise deals with the avoidance of conflicts of interest by a provision that relies on any individual member disclosing an interest, pecuniary or otherwise, that could conflict with the proper performance of their functions in relation to a particular proceeding and by the member refraining from taking part, or exercising any power, in relation to the proceeding, unless the parties agree.[146]

90 By comparison, there are significant constraints in Victoria on judges in the Supreme and County Courts and on magistrates in the Magistrates' Court. Conflicts of interest are avoided either because judicial officers are appointed on a full-time basis and their conduct is governed by the Guide to Judicial Conduct, which sets out principles to avoid conflicts of interest,[147] or because they are appointed on a part-time basis and they are not permitted to engage in legal practice[148] nor are they permitted to undertake paid employment or conduct a business, trade or profession of any kind, or hold a remunerative office in any company, incorporated association or other entity, whether public or private, without the approval of the head of jurisdiction.[149] Reserve judges, who are retired judges who return to the Supreme or County Courts at the invitation of the head of jurisdiction on a full-time or sessional basis,[150] are subject to similar constraints.[151] The stringency of these constraints stands in sharp contrast to those applicable to part-time and sessional non-judicial members of VCAT.

91 The qualification of members of VCAT also stands in contrast to members of a court. Adapting the observation of Spigelman CJ in Skiwing[152] that a court of a State must be a court of law, the issue arises_:_ how can a court of law be composed of persons who are not qualified in law? At minimum, a court of law must be composed predominantly of people who are trained in the law.[153] While non-judicial officers in a State court may perform a variety of functions, the performance of those functions remain under the effective supervision and control of the judges.[154] Here, as noted,[155] senior members and ordinary members of VCAT may be appointed without any legal qualifications if they have, in the opinion of the Minister, extensive knowledge or experience in a class of matters that come before VCAT. Similar concerns about the qualifications of members of NCAT were emphasised by Bathurst CJ in Gatsby.[156] It may be accepted, as Heerey J emphasised in Wood,[157] that the duty of all members is to apply legal standards but this is a duty that is common to all administrators and does not support VCAT's status as a State court. As to the relevance of the absence of legal qualifications by many members of the magistrates' courts prior to federation, we share Kenny J's view that the conventions for the protection of independence and impartiality have evolved since the time of federation,[158] and we share the view of the majority in Burns v Corbett that the understanding of the requirements of Ch III has similarly evolved post-federation.[159]

92 It is the combination of all these factors that supports the conclusion that VCAT is not a court of a State. In particular, we consider that the power of removal is of less significance to the resolution of Question 1 than is the power of reappointment. The power of reappointment carries the risk that the Minister could potentially adjust the composition of VCAT by refusing to reappoint members they view as having the wrong decision-making history, without any need to rely on the power of removal.

93 The holder of a judicial office can only be removed by the Governor in Council on the presentation of an advice from both Houses of Parliament agreed by special majority in the same session praying for removal on the ground of proved misbehaviour or incapacity.[160] By contrast, a non-judicial member of VCAT may be removed for proved misbehaviour or incapacity on the recommendation of the Attorney-General.[161] However, unlike the power considered by Kenny J under the ADT Act where the responsible Minister could remove a member at will,[162] the power to remove under the VCAT Act is constrained. In those circumstances the availability of judicial review does provide more of an adequate safeguard. Moreover, as Meringnage submits, the actions of the Attorney-General in removing a non-judicial member are subject to parliamentary scrutiny by means of a requirement to table a report completed by an investigating panel that facts exist that could amount to proven misbehaviour or incapacity.[163]

94 The members of VCAT are also entitled to remuneration, by contrast with the absence of any such provision for ADT members.[164] There is no guarantee for a VCAT member, unlike a member of a court, that their remuneration will not diminish.[165] However, applying the reasoning of Bradley,[166] the power to determine remuneration must be coupled with a duty to exercise it from time to time, with no risk of a hiatus. We agree with Meringnage that the power to determine remuneration and allowances of non-judicial members is confined by its subject-matter, context and purpose, and its exercise (including any attempt to diminish entitlements) would be subject to judicial review.[167] In particular, the exercise of the power would be reviewable for improper purpose or bad faith. In this context, any advisory opinion provided under the Judicial Entitlements Act, with respect to the entitlements of non-judicial members, may well be relevant.

95 We further consider that the legislative designation of the decision-making body, while important, is not decisive. Moreover, by contrast with QCAT, here the designation of VCAT as a 'tribunal' and not a 'court', let alone a 'court of record', clearly favours a negative answer to Question 1. We agree with Victoria that the fact that the VCAT Act does not designate VCAT as a 'court' is indicative of a legislative choice to create a non-curial body.

96 Some of the functions and powers of VCAT also indicate that it is not a State court. As emphasised by Perry J in Lustig,[168] it is the duty of the members of VCAT in some circumstances to apply government policy[169] and, in its review function, to stand in the shoes of the administrative decision-maker,[170] all of which supports the view that VCAT is functioning primarily to provide administrative oversight even if, at times, it exercises State judicial power. Accepting that there is no strict separation of powers at the level of State courts, nevertheless, such a primary function of substantial merits review is not consistent with the status of the institution as a State court.[171]

97 Finally, the terms of s 96 itself, which founds this referral, is, in our view, a curious provision if VCAT is a court of a State.[172] It precludes VCAT, upon a referral of a question of law having been made to the Supreme Court, from making a determination that is inconsistent with the opinion of the Supreme Court. We endorse the observations made by Leeming JA in Gatsby with respect to s 54(4) of the New South Wales Civil and Administrative Tribunal Act 2013 (NSW),[173] the cognate provision to s 96(3) of the VCAT Act, that there would be no need for s 96(3) if VCAT was a State court as it would be bound by determinations of the Supreme Court in the ordinary way as part of the judicial hierarchy.

98 The answer to Question 1 is 'No'. VCAT is not a 'court of a State' within the meaning of Ch III of the Constitution.[174]

Question 2: Does the VCAT proceeding involve the exercise of judicial power?

99 Both the Commonwealth and Victoria submit that the VCAT proceeding, where orders are sought under s 125 of the EO Act, involves the exercise of judicial power. Meringnage submits that it is unnecessary for this Court to answer Question 2 because characterisation of the power as judicial or not serves no useful constitutional purpose, given that the doctrine of the separation of powers does not constrain institutional structures within a State. He also relies on an affirmative answer to Question 3 as supporting his position on Question 2 because, on his submission, VCAT can make a relevant order against the Commonwealth under s 125 of the EO Act even if it is not a court of a State regardless of the nature of the power being exercised.

100 Putting to one side how Question 3 might be answered, we do not consider that the question of whether the proceeding calls for an exercise of judicial power can be avoided as Meringnage suggests. The issues facing this Court concern the relationship between State and federal judicial power; those issues are not resolved by recognising that States are not precluded from conferring administrative powers on State courts and State judicial power on administrative bodies. It is the interaction of State judicial power and federal judicial power that is the focus of attention and, in that context, State judicial power is constrained to some extent by the principles that govern the exercise of federal judicial power; Burns v Corbett is one example of such a constraint.[175]

101 This case raises the issue of whether a body that exercises State judicial power is precluded from exercising that power in a proceeding in which the Commonwealth is a party unless that decision-making body is a State court. If this proceeding does not call for an exercise of judicial power, if the answer to Question 2 is 'No', the proceeding might be readily determined by VCAT.[176] If it does call for the exercise of judicial power, its resolution requires the parties to confront the issue of whether the strictures associated with the exercise of federal judicial power apply to the bodies that exercise State judicial power if the body is to be capable of determining a proceeding in which the Commonwealth is a party. In our view, the answer to Question 2 is to this extent of critical importance.

102 In Commonwealth v Anti-Discrimination Tribunal (Tas) Kenny J accepted as clear that the ADT exercises judicial power and this was due to the nature of its functions and the procedures for the enforcement of its orders.[177] Its functions involved the determination of whether the ADT Act had been contravened by conduct that had given rise to a complaint, a function traditionally recognised as involving the exercise of judicial power.[178] The determination of a statutory contravention involves a ruling on existing rights and liabilities. This is precisely the type of function VCAT performs; more particularly, in the circumstances here, Meringnage is inviting VCAT to make a determination of discrimination against him under the EO Act by Interstate, RUAG, and the Commonwealth. The functions of VCAT thus have the character of judicial functions.

103 Kenny J described the ADT as making court-like orders such as injunctions, including mandatory injunctions; payments of compensation; fines; orders for the variation or avoidance of a contract or agreement; and any other order that the ADT thought appropriate. It also had the power, in its discretion, to refuse relief. Her Honour's conclusion that the power being exercised by the ADT was judicial was also supported by the manner in which orders of the ADT were enforced, namely, through the mechanism of filing the orders with the Supreme Court, as though they were orders made by the Supreme Court, without an independent exercise of judicial power. Indeed, as her Honour noted, in Brandy v Human Rights and Equal Opportunity Commission[179] it was 'the inclusion of a provision providing for the registration and enforcement of a HREOC [Human Rights and Equal Opportunity Commission] determination as an order of the Federal Court [that] turned an exercise of non-judicial power into an exercise of judicial power'.[180] The filing of an order of the ADT with the Supreme Court, 'confirms that [the order] is "binding, authoritative and curially enforceable"'.[181]

104 In Lustig Perry J was also of the view that VCAT exercises judicial power. She also emphasised the significance of the finding in Brandy that curial enforcement of orders made by a tribunal rendered the power judicial. Her Honour said:

[VCAT] decides controversies between parties by the determination of rights and duties based on existing facts and the law ... That the Tribunal is vested with State judicial power is confirmed, in my view, by the provisions for the enforcement of Tribunal orders as an order of the Court on filing with the appropriate court. Given the similarity between these provisions and the scheme for the enforcement of determinations by the (then) Human Rights and Equal Opportunity Commission on registration with the Federal Court held invalid in Brandy as an impermissible conferral of federal judicial power, together with the other features referred to, it is plain in my view that VCAT is vested with judicial (as well as non-judicial) power.[182]

105 VCAT is empowered to make orders traditionally made in the exercise of judicial power.[183] Parties at VCAT are 'able to obtain a binding, authoritative and curially enforceable judgment independently of the consent of the person against whom [a] complaint [has] been brought'.[184]

106 More specifically, the orders sought here are orders under s 125 of the EO Act of the nature of prohibitory and mandatory injunctions.[185] Section 125 of the EO Act provides:

125 What may the Tribunal decide?

After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may

(a) find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders -

• (i) an order that the person refrain from committing any further contravention of this Act;
• (ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;
• (iii) an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or

(b) find that a person has contravened a provision of Part 4, 6 or 7 but decline to take any further action; or

(c) find that a person has not contravened a provision of Part 4, 6 or 7 and make an order that the application or part of the application be dismissed.

107 As mentioned above,[186] monetary orders made by VCAT can be enforced by filing a certified copy in the appropriate court whereupon they are enforced as though they were orders of that court, and non-monetary orders are filed in the Supreme Court and enforced according to its processes.

108 In our view, the range and character of the orders that VCAT can make upon a finding of a contravention of a norm prescribed by the EO Act, together with the unilateral enforceability of those orders in accordance with ordinary curial processes, confirms that VCAT is exercising judicial power in this proceeding.

109 Subject to considering the analysis of Basten JA in Gatsby, the answer to Question 2, on established principles, is 'Yes'. The VCAT proceeding brought by Meringnage does involve the exercise of judicial power.

Question 3: Does VCAT nevertheless have the authority to decide a suit against the Commonwealth?

110 Given the conclusions to Questions 1 and 2, the only way Meringnage can succeed in this referral is by persuading this Court that an affirmative answer should be given to Question 3; that is, despite VCAT not being a 'court of a State', and despite the fact that, on established principles, his complaint under the EO Act requires for its resolution the exercise of judicial power, including a determination of whether relief should be granted against the Commonwealth, nevertheless the proceeding at VCAT is not a 'matter' within s 75(iii) of the Constitution that calls for the exercise of federal jurisdiction. Meringnage's submissions depend upon an acceptance by this Court of the reasoning of Basten JA in Gatsby.[187]

111 As described above, federal jurisdiction is restricted to a range of 'matters'.[188] If there is no 'matter' there is no justiciable controversy that requires for its determination the exercise of federal judicial power. If federal judicial power is not required for the resolution of Meringnage's complaint under the EO Act, it is irrelevant that VCAT is not a court of a State under Ch III of the Constitution. It would be irrelevant that only a State court can be invested with federal jurisdiction.

112 The High Court recently reaffirmed the core principles governing federal jurisdiction and the meaning of 'matter'. In Palmer v Ayres,[189] the plurality (Kiefel CJ, Keane, Nettle and Gordon JJ) said:

Jurisdiction, or the authority to adjudicate, and judicial power are different concepts. '[F]ederal jurisdiction' in s 71 of the Constitution means 'authority to exercise the judicial power of the Commonwealth ... within limits prescribed'. Parliament, under s 77(i) of the Constitution, has the legislative power to give to a federal court created by it 'jurisdiction to exercise any judicial power of the Commonwealth, which the Parliament may think fit to confer upon it'. And, '[i]t is a necessary condition of federal jurisdiction, in the sense of authority to exercise the judicial power of the Commonwealth, that the matter in which the jurisdiction of the court is invoked is 'capable of judicial determination' or 'justiciable'.

...

A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice' (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. ...

The requirement that, for there to be a 'matter', there must be an 'immediate right, duty or liability to be established by the determination of the Court' reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.[190]

113 Meringnage submits that Basten JA's reasoning in Gatsby proceeds as a series of steps. We examine his Honour's judgment in closer detail below, but it is useful to see it first in summary form. Basten JA asks as an initial question, 'whether every form of dispute which might fall within ss 75 and 76 of the Constitution, sought to be resolved by the exercise of federal governmental power, must involve the exercise of federal judicial power'.[191] His answer is 'no' because otherwise 'every dispute involving the government itself would require litigation in a Ch III court' even if traditionally litigated in a federal administrative tribunal.[192] After referring to cases that establish what he describes as 'the conventional view' that 'not every dispute capable of judicial resolution must engage federal judicial power',[193] he concludes that:

[W]here the relevant 'matter' is defined by a State statute, the content of the 'matter' will depend upon that statute. If a statute does not confer jurisdiction on a State court, there will be no 'matter' arising under that statute and therefore no occasion to consider whether any particular paragraph of s 75 of the Constitution is engaged.

...

If ... disputes are not resolved in a State court, the class of such matters from which the Constitution would extract the sub-class of disputes between residents of different States does not exist. Accordingly s 75 is not engaged.[194]

114 This approach may be described as the Gatsby approach.[195]

115 Meringnage submits that applying the Gatsby approach here, if VCAT is not a court of a State, then s 125 of the EO Act should be understood as empowering VCAT, as a tribunal, to make orders against the Commonwealth and the other respondents to the claim. Not requiring resolution in a State court, there is no 'matter' in the constitutional sense unless and until VCAT's decision is appealed to the Supreme Court on a question of law under s 148 of the VCAT Act. Accordingly, Meringnage submits, the answer to Question 3 should be 'Yes'.

116 Meringnage's submission turns upon an acceptance of the proposition, which lies at the core of the Gatsby approach, that the forum chosen under a State statute for the resolution of a dispute is decisive. If the State legislature considers that it is not necessary for a particular type of dispute to be determined by a curial process, then that type of dispute is to be understood, by definition, as one that stands outside of the system of State courts. It is therefore not part of those controversies that, by reason of s 39(1) of the Judiciary Act, are excised from the jurisdiction of State courts and made resolvable only by federal judicial power, exercisable by State courts pursuant to s 39(2) of the Judiciary Act.[196]

117 In other words, whether a dispute that otherwise falls within the class of categories in s 75 or s 76 is a 'matter' in the constitutional sense is a function of legislative choice by a State as to the forum it decides is appropriate for the resolution of the dispute. Choice of a non-curial forum, an administrative tribunal, is determinative. This forum-driven understanding of 'matter' is a proposition which, at first sight, seems at odds with the historical understanding of Ch III and the operation of the Judiciary Act. It requires careful examination.

118 In response, the Commonwealth submits that it follows from Burns v Corbett that VCAT does not have jurisdiction over the Commonwealth in this proceeding. In Burns v Corbett the High Court invalidated the conferral of jurisdiction under the Anti-Discrimination Act 1977 (NSW) on NCAT insofar as it purported to permit the adjudication of disputes between residents of different States, a subject matter identified in s 75(iv). It was assumed that NCAT is not a 'court of a State'.[197] As mentioned, this assumption was later unsuccessfully challenged in Gatsby.[198]

119 In Burns v Corbett the High Court held that there is an implied constitutional prohibition that prevents a State law from conferring jurisdiction on a tribunal that is not a 'court of a State' to decide any of the matters in ss 75 and 76 of the Constitution in the exercise of State adjudicative authority. The plurality (Kiefel CJ, Bell and Keane JJ) observed that, with respect to any of the matters identified as being within federal jurisdiction, it is contrary to Ch III for those matters to be adjudicated by agencies of State executive governments. They said:

Chapter III of the Constitution provides for the authoritative adjudication of matters listed in ss 75 and 76 by federal courts and by State courts co-opted for that purpose as components of the federal Judicature. The provisions of Ch III exhaustively identify the possibilities for the authoritative adjudication of matters listed in ss 75 and 76. Adjudication by an organ of State government other than the courts of the States is not included within those possibilities and is therefore excluded from them. While s 77(ii) contemplates the possibility that, unless and until the Commonwealth Parliament legislates under s 77(iii), the courts of the States may continue to exercise their existing adjudicative authority, if any, finally to resolve such matters, it does not contemplate that this authority - the authority characteristically exercised by courts - will be exercised by agencies of the executive government of the States.[199]

120 The plurality referred to the reasoning in R v Kirby; Ex parte Boilermakers' Society of Australia[200] ('the Boilermakers' Case'), to the effect that it would be anomalous to consider that the careful provisions in the Constitution creating the federal judicature as the institution to exercise the judicial power of the Commonwealth, precisely delineated in content and subject-matter, could allow for the exercise by that institution of other powers wholly unconnected with judicial power. Rather, Ch III is an exhaustive statement not only of the judicial power that the federal judicature can exercise but of all the powers it can exercise. The plurality went on to draw from the Boilermakers' Case the negative implication that the authority to adjudicate upon matters requiring for their resolution federal judicial power (as defined by ss 75 and 76) cannot be conferred on any governmental body, federal or State, that is not referred to in Ch III. It follows that the authority to adjudicate those matters cannot be conferred on a non-curial institution, such as an administrative tribunal, whether it be an agency of the Commonwealth or of a State:

While that decision specifically denied the power of the Commonwealth Parliament to confer upon an agency of the government of the Commonwealth other than a court the authority to adjudicate that is characteristic of the courts, the approach to the interpretation of Ch III, whereby the statement of what may be done is taken to deny that it may be done otherwise, is also apt to deny the possibility that any matter referred to in s 75 or s 76 might be adjudicated by an organ of government, federal or State, other than a court referred to in Ch III. In short, Ch III recognises no other governmental institution as having the potential to exercise adjudicative authority over the matters listed in ss 75 and 76 of the Constitution.[201]

121 They emphasised that the Constitution does not permit a State to 'sidestep its own courts ... by investing an agency of its executive government with the adjudicative authority characteristic of the courts in respect of the matters listed in ss 75 and 76'.[202]

122 Gageler J agreed substantially with the reasoning of the plurality, observing that there is an acknowledged exception to the proposition that a State Parliament can confer State judicial power on a tribunal that is not a court of a State, namely, those subject matters identified in ss 75 and 76, and the exception is justified because it is only in this way that the Commonwealth Parliament can guarantee that those subject matters are dealt with in a forum exhibiting the minimal requirements of impartiality and independence and ensure the integrity of the appellate jurisdiction of the High Court:

The implication is needed because State legislative power to confer State judicial power on a State tribunal that is not a court of a State must be denied in order to ensure the effective exercise of the legislative powers conferred on the Commonwealth Parliament by s 77(ii) and (iii) to produce by legislation the constitutionally permissible result that an exercise of judicial power with respect to a subject matter identified in s 75 or s 76 occur only under the authority of Commonwealth law, in a forum which meets the minimum characteristics of a Ch III court, so as to give rise to a judgment or order that is appealable directly to the High Court subject only to such exceptions or regulations as the Commonwealth Parliament may prescribe under s 73(ii).[203]

123 The Commonwealth submits that the proceeding brought by Meringnage is a matter in which the Commonwealth is a party within the meaning of s 75(iii), and that, although Burns v Corbett dealt with diversity jurisdiction under s 75(iv), the negative implication identified extends to all matters within s 75 or s 76. It follows that the EO Act should be read down so that it does not include the conferral on VCAT of adjudicative authority over complaints against the Commonwealth, any such purported conferral being invalidated because VCAT is not a court of a State.

124 Victoria also submits that Question 3 should be regarded as resolved by Burns v Corbett; it submits that it follows from the implied prohibition recognised in Burns v Corbett, and the reasoning of the plurality underpinning it_,_[204] that Meringnage's submissions should be rejected as VCAT has no authority to decide his complaint insofar as he seeks relief against the Commonwealth. It acknowledges that the Gatsby approach would allow for a different conclusion to be reached but it urges this Court not to follow that approach. The Gatsby approach did not commend itself to the other members of the five-member bench of the New South Wales Court of Appeal. Indeed, Bathurst CJ expressed the view that it was not appropriate for the Court to consider the issue of whether there was a 'matter' arising in the proceeding before NCAT for the purpose of ss 75 and 76 of the Constitution, because it had not been raised by the parties or the intervener or contradictors.[205]

125 Meringnage responds by submitting that Burns v Corbett did not resolve the issue before this Court because the Gatsby approach was not argued in Burns v Corbett.[206] The conclusions applied only to 'matters' that arise in federal jurisdiction and the Gatsby approach explains why there is no 'matter' in this proceeding. He concedes that, if the Gatsby approach is correct, and a controversy that can only be resolved through an enforceable remedy granted by a State tribunal, and not by a court, is not a 'matter', then it would follow that the complaints at issue in Burns v Corbett under the Anti-Discrimination Act were not 'matters' and Burns v Corbett was probably wrongly decided. Moreover, he emphasises that it was only because of procedural, not substantive, grounds that Basten JA alone dealt with the issue. Meringnage urges the adoption of the Gatsby approach. It is thus necessary for this Court to examine whether the Gatsby approach is cogent.

126 To analyse properly the Gatsby approach, it is important to identify closely each of the series of propositions that make up the steps in the reasoning. Once this exercise is undertaken, in our view, it can be demonstrated that the reasoning is flawed and that most of the propositions identified have little or no application to the States. In short, the forum-driven understanding of 'matter' does not apply to State institutions. In the absence of that understanding there is no basis for inferring, as Basten JA does, that if, under a State statute that provides for the adjudication of a dispute, the dispute is not to be determined in a court, it is not a 'matter' and does not call for the exercise of federal judicial power.

127 Basten JA begins by re-phrasing the question raised for the Court of Appeal in Gatsby: 'The real question is whether the functions being exercised by NCAT involved an exercise of federal jurisdiction; that is, an exercise of federal judicial power.'[207]

128 His answer to the 'real question' is 'No', on the basis that the cases under the Residential Tenancies Act, of the type brought by the applicants in Gatsby, including applications for non-payment of rent and an order for possession, do not involve a 'matter' for the purposes of s 75 of the Constitution. It was common ground that NCAT was exercising judicial power.[208]

129 His Honour makes the uncontroversial observation that a 'matter' in the constitutional sense means more than a legal proceeding. A 'matter' is a justiciable controversy that can 'be determined upon principles of law'.[209] A 'matter' refers to controversies that are 'capable of judicial determination'; as reaffirmed in Palmer v Ayres, there must be an 'immediate right, duty or liability to be established by the determination of the Court'.[210] He refers to the famous statement of Griffiths CJ in South Australia v Victoria, who held that the jurisdiction invoked in a dispute about the boundary between those two States was judicial and not political.[211] Basten JA goes on to say:

The Chief Justice, holding that there was a justiciable claim stated:

The word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice.

...

In my opinion a matter between States, in order to be justiciable, must be such that a controversy of like nature could arise between individual persons, and must be such that it can be determined upon principles of law.[212]

130 The first proposition endorsed by the Gatsby approach is that there is no authority that establishes that every form of dispute which might fall within ss 75 and 76 of the Constitution requires for its resolution the exercise of federal judicial power:

The question raised by these statements of principle, for present purposes, is whether every form of dispute which might fall within ss 75 and 76 of the Constitution, sought to be resolved by exercise of federal governmental power, must involve the exercise of federal judicial power. No authority supports that meaning; rather, in the language of Re Judiciary and Navigation Acts, 'matter' is used to describe 'the subject matter for determination in a legal proceeding'. That is, the statute conferring authority to resolve a class of disputes must intend that it be done in exercise of judicial power. It may be that some subject matters, such as criminal prosecutions or the exercise of the supervisory jurisdiction, can only be determined by the exercise of judicial power, but NCAT is given no such authority. Other disputes may be the subject of determinative resolution by non-curial means.[213]

131 The first proposition has a positive and a negative aspect. The positive aspect is that disputes, such as those involving the same parties as those identified in ss 75 and 76, for example, residents of different States, or, relevantly, where the Commonwealth is a party, may be resolved by federal governmental power but not require an exercise of judicial power, in particular, they may not require an exercise of federal judicial power. This is tantamount to the uncontroversial proposition that such disputes may sometimes be resolvable administratively; that is, through the exercise of non-judicial, administrative power. Examples include the determination by the Administrative Appeals Tribunal of taxation disputes or disputes involving immigration applications.

132 This is elaborated upon by the observation that, unless it be accepted that some disputes involving the Commonwealth are resolvable by non-curial means, there would be a question of the validity of federal tribunals:

Were it otherwise, every dispute involving the [Commonwealth] government itself would require litigation in a Ch III court, because it would engage s 75(iii) or s 76(ii) of the Constitution. It would then be necessary to find some presently unidentified basis to justify the constitutional validity of all federal tribunals, including the Administrative Appeals Tribunal, the former Refugee Review, Migration Review and Social Security Appeals Tribunals.[214]

133 The negative aspect of the first proposition is that it is only disputes that require determination in a legal proceeding, that is, by a court, and that otherwise fall within ss 75 and 76, that must be resolved by federal judicial power. While this may hold good for federal institutions, it begs the very question at issue if it is to be relied upon as carrying implications with respect to State institutions. There is a distinction drawn between disputes where the statute intends that they be resolved 'in the exercise of judicial power' and 'disputes [that] may be the subject of determinative resolution by non-curial means'. This assumes that there is a dichotomy between 'judicial power' and 'non-curial institutions' such that institutions of government that are not courts cannot exercise judicial power. While this dichotomy flows from the Boilermakers' Case in respect of the Commonwealth, the dichotomy does not apply to the States. There is a risk that the first proposition is viewed as establishing more than it can; in particular any identification between judicial power and curial institutions at the level of the States must be avoided. A State statute may intend that a class of disputes be heard and determined in the exercise of judicial power while, simultaneously, indicating that they be determined by a non-curial institution. The legislative choice of the forum is not determinative as to whether the dispute will require the exercise of judicial power for its resolution.

134 The second proposition is that the choice by a legislature to confer the power to resolve a particular type of dispute on a tribunal, rather than a court, may result in the power being classified as administrative rather than judicial even though the same power conferred on a court may be understood as having the character of judicial power. In other words, the character of the function or power may be taken to reflect the character of the institutional body in which the function or power is vested; the so-called 'chameleon' doctrine. (Applied here, this would mean that the application for relief under s 125 of the EO Act would not involve the exercise of judicial power, VCAT being an administrative tribunal.) If classified as not involving judicial power, the dispute will not be classified as a justiciable controversy, that is, not a 'matter':

The very fact that the function of resolving such a dispute has been conferred on a tribunal may result in the function being classified as not an exercise of judicial power and therefore as not involving a 'matter'.

...

Mason J further noted [in R v Hegarty; Ex parte City of Salisbury]:

It is also recognised that there are functions which may be classified as either judicial or administrative according to the way in which they are exercised. A function may take its character from that of the tribunal in which it is reposed. Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if the function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved.[215]

135 The second proposition has particular force in respect of functions conferred on federal tribunals; the conferral of a function on a Commonwealth non-judicial tribunal may provide a basis for the inference that the function does not involve the exercise of judicial power. The Commonwealth Parliament can be taken to confer functions and powers for the resolution of disputes in the knowledge that a Commonwealth administrative tribunal cannot exercise federal judicial power and tailor the functions and powers accordingly. However, the second proposition has limited application to the States. The conferral by a State Parliament of an adjudicative function on an administrative tribunal cannot ground the inference that no exercise of judicial power is involved because the State Parliament must be taken to understand that State tribunals can exercise judicial power, there being no strict application of the doctrine of the separation of powers to the States.[216] A State Parliament may choose to confer an adjudicative function on an administrative tribunal with the objective that disputes of that class may be dealt with more expeditiously than by a State court, with less formality, and with no risk of adverse costs orders in the ordinary case, while simultaneously intending that the power the tribunal exercise be judicial power.

136 The third proposition reasserts the importance of the legislative choice of the forum in which rights or duties are to be enforced. As mentioned,[217] Basten JA expresses what he describes as 'the conventional view', namely, in respect of disputes that are sought to be resolved by federal governmental power, 'not every dispute capable of judicial resolution must engage federal judicial power'[218] and in support of that view he relies upon a statement in Abebe v Commonwealth[219] by Gleeson CJ and McHugh J who stated:

[T]he [Commonwealth] Parliament is acting within the power conferred by s 77 of the Constitution whenever it authorises a federal or State court to determine, by reference to a legal rule, principle or standard, the rights, duties or liabilities of litigants which arise out of controversies that fall within any of the descriptions in pars (i)-(iv) of s 75 or pars (i)-(iv) of s 76 of the Constitution. The identification of the 'matter' will in part depend upon the nature of the rights, duties and liabilities that arise under a law or state of affairs described in s 75 or s 76, but only to the extent that those rights, duties and liabilities are enforceable in the federal or State court which has jurisdiction to hear the 'matter'.[220]

137 He goes on to observe that unless a right, duty or liability is enforceable in a court, ss 75 and 76 are not engaged:

The last sentence in this passage accepts that, at least for rights, duties and liabilities derived from statute, the statute may prescribe the extent to which they are enforceable in a court. It is only to that extent that the mandate of ss 75 and 76 is engaged.[221]

It must follow that, where the relevant 'matter' is defined by a State statute, the content of the 'matter' will depend upon that statute. If a statute does not confer jurisdiction on a State court, there will be no 'matter' arising under that statute and therefore no occasion to consider whether any particular paragraph of s 75 of the Constitution is engaged.[222]

139 The third proposition amounts to this: it is only the extent to which a statute provides for the enforceability of a right, duty or liability in a court that the resolution of a dispute in respect of that right, duty or liability will require the exercise of judicial power, and thus, depending on the particular subject-matter, fall under s 75 or s 76. If a right, duty or liability is not enforceable in a court (because the legislature has chosen to make it enforceable only in a tribunal) a dispute relating to that right, duty or liability is not a 'matter'. Put simply, the third proposition is that if a dispute cannot in fact be determined in a court, it is not a 'matter'. As the Commonwealth and Victoria submit, this is inconsistent with the accepted conception of 'matter' that it is independent of the forum; as Gageler J said in Burns v Corbett: '[A] 'matter' ... encompasses a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated.'[223]

140 With great respect to Basten JA, we cannot accept that the third proposition is valid.

141 In our view, Basten JA has drawn the inference too swiftly. As noted, on the Gatsby approach, the justiciable nature of a controversy is entirely driven by the forum in which the dispute can be determined. It allows for a State Parliament, by a stroke of the legislative pen, to avoid all the strictures that flow from the constitutional identification of certain subject-matters as comprising federal jurisdiction including the requirement that those matters are to be dealt with, in the exercise of State judicial power, only 'by State courts co-opted for that purpose as components of the federal Judicature',[224] that is, by bodies that satisfy the minimum guarantee of impartiality and independence. While the Gatsby approach embraces that conclusion, it seems implausible that a simple legislative choice by a State Parliament of the forum for a dispute can have the effect of side-stepping the constraints surrounding federal jurisdiction, including the integrity of the appellate jurisdiction of the High Court with respect to the subject matters identified in s 75 or s 76. This is precisely the vice identified in Burns v Corbett as supporting the recognition of the negative implication. As the Commonwealth and Victoria submit, and we accept, the Gatsby approach is inconsistent with the reasoning and outcome in Burns v Corbett.[225]

142 We consider that the third proposition would only have force if State courts were the exclusive repositories of State judicial power. If that were so, the failure of a State Parliament to provide for the enforcement of a right, duty or liability in a State court might well indicate, at least, that the Parliament considered that the resolution of that dispute did not call for an exercise of judicial power. A fortiori it did not call for the authority to exercise the judicial power of the Commonwealth; there would be no 'matter' to engage s 75 or s 76. But, as discussed, State courts are not the exclusive repositories of State judicial power.

143 A State Parliament that chooses an administrative tribunal as a forum for the enforcement of a right or duty is not to be taken to have considered that the resolution of any dispute in respect of the right or duty would only call for the exercise of non-judicial power. Rather, when a State Parliament chooses a tribunal, such as VCAT, to be the forum for the resolution of disputes in respect of statutory rights and duties, it does so in the recognition that the resolution of the dispute may call for the exercise of State judicial power. It follows that, depending upon the subject-matter of the controversy, the resolution of the controversy may call for the exercise of federal judicial power if the subject-matter falls within any of the identified categories in s 75 or s 76.

144 We have concluded that, here, on established principles, the resolution of the complaint under the EO Act requires the exercise of judicial power. We have rejected the second proposition of the Gatsby approach that would support the conclusion that the power is non-judicial, reflecting the institutional character of VCAT as an administrative tribunal. As the VCAT proceeding calls for the exercise of judicial power, the presence of the Commonwealth as a party thus demands the exercise of federal judicial power because the dispute thereby becomes a 'matter' within the meaning of s 75(iii) of the Constitution.

145 Basten JA goes on to apply the third proposition to the proceeding before NCAT, and concludes that, despite NCAT not being a court of a State, it could hear and determine the proceeding under the Residential Tenancies Act because there was no 'matter' before NCAT. He said:

The rights, duties and liabilities in issue before the Tribunal arose under the Residential Tenancies Act ... the power to recover possession of premises otherwise than pursuant to the procedures established by the Act is precluded by s 119 which is in the following terms:

119 Prohibition on certain recovery proceedings in courts

A landlord or former landlord must not commence 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.[[226]]

It therefore follows that there was no right, duty or liability established by the Residential Tenancies Act which was enforceable by a court, until NCAT had ruled on the landlord's application. Accordingly there was no 'matter' for the purposes of s 75 of the Constitution whilst the dispute was before NCAT. For this reason the constraint on the jurisdiction of NCAT for which the respondents in the Tribunal contended did not arise.

...

What s 77(iii) permits the [Commonwealth] Parliament to vest in a court of a State is federal jurisdiction. Federal diversity jurisdiction created by s 75(iv) depends upon there being a 'matter' arising under State law. To the extent that State law creates rights not enforceable in a State court, there is no 'matter' to engage s 75(iv). Section 75 assumes the existence of a class of such matters; it does not create it. If residential tenancy disputes are not resolved in a State court, the class of such matters from which the Constitution would extract the sub-class of disputes between residents of different States does not exist. Accordingly s 75 is not engaged.[227]

146 It is apparent that the conclusion depends entirely on the third proposition which we have sought to demonstrate is unfounded. For Basten JA, to the extent that a State law creates rights not enforceable in a State court, there is no 'matter' to engage s 75. In our view, the fundamental flaw of the Gatsby approach is that it focuses upon the forum or institution as determinative of whether there is a 'matter' that engages s 75 in the context of the States, where the institutional differences between courts and tribunals do not support the dichotomy upon which the Gatsby approach depends. The forum-driven understanding of 'matter' is inconsistent with the institutional arrangements of the States.

147 The third proposition is also inconsistent with the understanding of Ch III as expounded in Burns v Corbett. In our view, the Gatsby approach is foreclosed by Burns v Corbett.

148 The complaint raised here by Meringnage, namely, a contravention of a statutory prohibition on the basis of which remedies are sought in the nature of prohibitory and mandatory injunctions, requires for its resolution the exercise of judicial power against the Commonwealth. The determination of the complaint thus requires VCAT to exercise judicial power in a 'matter' that engages s 75. This is something that VCAT cannot do unless it satisfies the requirements demanded of a 'court of a State' (within the meaning of s 77(iii)). We have concluded that VCAT is not a State court. It follows that VCAT does not have the authority to decide Meringange's application for relief against the Commonwealth.

149 The Answers to the Questions Referred are as follows:

1. Is the Victorian Civil and Administrative Tribunal a 'court of a State' within the meaning of Ch III of the Constitution and so capable of exercising judicial power in a matter in which the Commonwealth is a party?

2. If the answer to Question 1 is 'No', would the grant of relief in this proceeding, pursuant to s 125 of the Equal Opportunity Act 2010 (Vic) involve the exercise of judicial power by the Tribunal?

3. In light of the answers to Questions 1 and 2, does the Tribunal have authority to decide the application against the Commonwealth?

SELINDA MADURANJAAN PERERA GARDI HEWAPANNA MERINGNAGE

[1] (2018) 92 ALJR 423.

[2] That is, within the meaning of s 77(iii) of the Constitution. See [24] below.

[3] On a referral of questions of law from VCAT. See [14]-[15] below.

[4] (2018) 99 NSWLR 1 ('Gatsby').

[5] The description that follows is derived from the Special Case, which contains an agreed statement of facts and Meringnage's amended application at VCAT and its annexures.

[6] Section 16 of the EO Act relevantly prohibits an employer from discriminating against a person: (a) in determining who should be offered employment; or (c) by refusing or deliberately omitting to offer employment to the person. Discrimination (direct and indirect) is prohibited on the ground of a protected 'attribute'. 'Race' is an 'attribute' under s 6 and the definition of 'race' includes 'nationality or national origin' and 'ethnicity or ethnic origin', under s 4.

[7] Counsel for Meringnage provided this information to the Court.

[8] Counsel for Meringnage provided the original advertisement to the Court.

[10] It is uncontroversial that the Department of Defence is 'the Commonwealth' for the purpose of s 75(iii) of the Constitution, the Department of Defence being a Department of State of the Commonwealth established by the Governor-General under s 64 of the Constitution. Meringnage variously identified either the Department of Defence or the Commonwealth as the third respondent in his materials filed with VCAT.

[12] Annexure A to the Amended Application for an Order (emphasis added). The source of this information is unclear.

[13] The reference to a 'special case' is not strictly correct. It is likely that the mistake was made because ord 6 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, which deals with referrals of questions of law, states that such referrals must be made in accordance with ord 5, which deals with questions of law being reserved in the form of a special case or case stated. Rule 6.02 provides that ord 5 applies to a referral of a question of law to the Court as if 'the special case' meant the reference. The mistake is not material.

[17] See [22] below.

[18] That is, the issue was raised with Meringnage, the Commonwealth and Victoria. At the hearing of the referral the first and second respondents did not seek to participate.

[19] Cf Chopra v Department of Education and Training [2019] VSCA 298 where this Court held that the President of VCAT must consent to the final form of the referred questions. It was held that a failure to secure the President's consent to the final form of the questions invalidated the referral and deprived the Court of Appeal of jurisdiction to determine the questions.

[20] Re Wakim; Ex parte McNally (1999) 198 CLR 511, 575 [111] ('Re Wakim'); Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; (2008) 169 FCR 85, 137 [222] (Kenny J); Qantas Airways v Lustig [2015] FCA 253; (2015) 228 FCR 148, 161 [53]; Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 339 [178].

[21] Re Wakim (1999) 198 CLR 511, 575 [111]. It is because s 76 of the Constitution is the exclusive source of power to confer original jurisdiction on the High Court that it follows that the jurisdiction that can be conferred on federal courts, under s 77, is limited to the heads of power identified in ss 75 and 76 with the consequence that, for example, State Parliaments cannot confer jurisdiction on a federal court: Re Wakim; Ex parte McNally (1999) 198 CLR 511, 575 [111].

[22] (2018) 92 ALJR 423. This is discussed further below under Question 3.

[23] The Commonwealth reserves its position on issues not raised by the VCAT proceeding, specifically, whether the EO Act applies to the Commonwealth as a matter of statutory interpretation and whether the Commonwealth has a constitutional immunity from the EO Act as it applies to this case.

[24] Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; (2008) 169 FCR 85, 139 [226] (Kenny J).

[25] Pollentine v Bleijie [2014] HCA 30; (2014) 253 CLR 629, 648-9 [42]; Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, 89-90 [124]-[125].

[26] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146, 163 [29] ('Bradley').

[27] [2006] HCA 44; (2006) 228 CLR 45 ('Forge').

[28] Ibid 67 [41], 79 [73], 80-1 [78].

[29] [2009] HCA 4; (2009) 237 CLR 501, 529 [85] ('K-Generation').

[32] K-Generation [2009] HCA 4; (2009) 237 CLR 501, 529 [88].

[33] A-G (NT) v Emmerson (2014) 253 CLR 393, 426 [44].

[34] Bradley [2004] HCA 31; (2004) 218 CLR 146, 163 [30].

[35] See [44] below.

[36] VCAT Annual Report 2017-18, 81. As the information was derived from an official government document that was not prepared for the purposes of litigation, it can be accepted as a 'constitutional fact': Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 482-3 [526], 522 [639], 524 [645].

[39] VCAT Act s 11(2). Section 11A of the VCAT Act allows for reserve judges of the County Court to be appointed as Vice Presidents for a term not exceeding six months.

[40] VCAT Annual Report 2017-18, 10; VCAT Annual Report 2018-19, 10.

[41] VCAT Act s 10(4), s 11(5) respectively.

[46] VCAT Act ss 11(1), 12(1), 13(1), 14(1).

[47] VCAT Act s 16(1). There is an exception for reserve judges who can be appointed by the Minister as short-term Vice Presidents under s 11A.

[48] VCAT Act s 16(4). The manner of the oath or affirmation of office is prescribed. The terms of the oath are set out in Victorian Civil and Administrative Tribunal (Oath and Affirmation of Office) Regulations 2013 r 5, sch: 'I, [Full name], swear by Almighty God (or the person may name a god recognised by his or her religion) that as a member of the Victorian Civil and Administrative Tribunal I will at all times and in all things do equal justice to all persons and discharge the duties of my office according to law and to the best of my knowledge and ability without fear, favour or affection'. The words of the affirmation are identical, except that the words 'solemnly and sincerely declare and affirm' replace the words 'swear by Almighty God'.

[55] VCAT Act ss 13(4), 14(4) respectively.

[57] VCAT Act s 3 (definition of 'full-time member'). A reserve judge of the County Court who is appointed as a Vice President may also undertake his or her duties on a part-time or sessional basis: VCAT Act, s 11A(2A).

[58] VCAT Act s 3 (definition of 'full-time member').

[60] Judicial Entitlements Act 2015 (Vic) s 16.

[65] VCAT Act s 21(1), or, where relevant the office of reserve judge.

[67] Judicial Commission of Victoria Act 2016 (Vic) ss 120-121.

[68] VCAT Act s 97 provides: 'The Tribunal must act fairly and according to the substantial merits of the case in all proceedings'. Section 98(1)(a) provides that VCAT 'is bound by the rules of natural justice'.

[71] In other words, it is not reviewing the decision of another decision-maker. VCAT also has original jurisdiction under, for example, the Guardianship and Administration Act 1986 (Vic).

[77] See, relevantly, the terms of s 125 of the EO Act at [106] below.

[78] For example, Company Titles (Home Units) Act 2013 (Vic) s 9; Estate Agents Act 1980 (Vic) s 28A(2); Second-Hand Dealers and Pawnbrokers Act 1989 (Vic) s 18B(1)(b).

[79] VCAT Act s 121. The Magistrates' Court of Victoria enforces VCAT orders to the value of $100,000 or less, in accordance with its jurisdictional limit as defined in s 3(1) (definition of 'jurisdictional limit') of the Magistrates' Court Act 1989 (Vic); while the County Court of Victoria or the Supreme Court of Victoria, neither of which have a jurisdictional limit (see Courts Legislation (Jurisdiction) Act 2006 (Vic) s 3 and Constitution Act 1975 (Vic) s 85, respectively) enforce VCAT orders above the value of $100,000.

[82] See [11] above.

[83] On this feature see Gatsby (2018) 99 NSWLR 1, 62-3 [292] (Leeming JA). See [77] below.

[84] [2011] VSCA 266; (2011) 33 VR 559 ('Sudi').

[85] The other judges, Warren CJ and Maxwell P, did not deal with the question whether VCAT is a court of a State.

[86] [2008] FCAFC 104; (2008) 169 FCR 85.

[87] [2006] FCA 60; (2006) 148 FCR 276 ('Wood').

[89] This aspect in particular distinguished the ADT from the New South Wales Workers Compensation Commission in Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146; (2003) 57 NSWLR 282 which was held not to be a court of a State. See, especially[2003] NSWCA 146; , (2003) 57 NSWLR 282, 291 [44] -[51] (Ipp JA, with whom Spigelman CJ and Handley JA agreed).

[90] Wood [2006] FCA 60; (2006) 148 FCR 276, 290 [61].

[93] Ibid 293 [71], citing Ell v Alberta [2003] 1 SCR 857, 874 (Supreme Court of Canada).

[94] He also referred to the importance of the role played by the ADT in the legal institutional framework of Tasmania, especially as it determined complaints involving the protection of fundamental human rights, citing Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69, [50] (Judge O'Connor): Wood [2006] FCA 60; (2006) 148 FCR 276, 295 [81]. He also found, as a matter of statutory construction, that the ADT was a 'person' for the purposes of the ADT Act (the prohibition on discrimination being directed at 'persons') and that, as a consequence, the ADT Act bound the Commonwealth.

[95] [2008] FCAFC 104; (2008) 169 FCR 85.

[96] The principal issue was whether the ADT Act bound the Crown in right of the Commonwealth; that is, was the Commonwealth relevantly a 'person' for the purposes of the ADT Act. Weinberg and Kenny JJ refused to follow Heerey J and held that the Commonwealth was not a 'person' under the ADT Act and was not bound by that Act; Goldberg J dissented. To that extent, Wood was over-ruled. Weinberg J found it unnecessary to consider the constitutional questions that arose if the ADT bound the Commonwealth: [2008] FCAFC 104; (2008) 169 FCR 85, 118 [157]. Kenny J went on to consider whether the ADT is a court of a State because it raised a question of general significance.

[97] [2008] FCAFC 104; (2008) 169 FCR 85, 141 [233].

[99] [2011] VSCA 266; (2011) 33 VR 559, 594 [199].

[100] Ibid 594 [201] (citations omitted).

[101] [2015] FCA 253; (2015) 228 FCR 148 ('Lustig').

[102] See further below at [104].

[103] [2006] NSWCA 185; (2006) 66 NSWLR 77 ('Skiwing').

[104] Lustig [2015] FCA 253; (2015) 228 FCR 148, 164 [67].

[105] Ibid 164-5 [68]-[73] (citations omitted).

[108] [2006] NSWCA 185; (2006) 66 NSWLR 77, 87 [52].

[109] Section 79 of the Constitution provides that: 'The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes'.

[110] Skiwing [2006] NSWCA 185; (2006) 66 NSWLR 77, 88-9 [59]-[63] (emphasis added) (citations omitted).

[111] [2012] QCA 170; [2013] 2 Qd R 327.

[112] Ibid 345-6 [50] (citations omitted). See also the remarks of Perry J at [69] above. See further Forge [2006] HCA 44; (2006) 228 CLR 45, 82 [82] where it was noted that both before and after federation there have been State courts the members of which have not all enjoyed Act of Settlement guarantees of tenure.

[113] Forge [2006] HCA 44; (2006) 228 CLR 45, 79 [73] (emphasis in original).

[114] Forge being concerned with the validity of appointments of acting judges to the New South Wales Supreme Court and not with the question of what constitutes a 'court of a State' under Ch III.

[115] [2009] HCA 4; (2009) 237 CLR 501, 535 [115], 562 [219].

[116] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164(1).

[117] Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327, 334 [10] (de Jersey CJ, with whom Muir JA agreed). The principal distinguishing feature of a 'court of record' is that courts of record have an inherent jurisdiction to punish for contempt of court whereas courts not of record do not and the records of proceedings of courts of record are conclusive evidence of what is recorded: see Enid Campbell, 'Inferior and Superior Courts and Courts of Record' (1997) 6 Journal of Judicial Administration 249, 254.

[119] Ibid. See [64]-[65] above.

[120] See [62] above. The Court relied on the observations in Forge [2006] HCA 44; (2006) 228 CLR 45, 82-3.

[121] See [62] above.

[122] K-Generation [2009] HCA 4; (2009) 237 CLR 501, 538-9.

[123] (2018) 99 NSWLR 1.

[124] Bathurst CJ, Beazley P, McColl, Basten and Leeming JJA.

[125] Gatsby (2018) 99 NSWLR 1, 36-7, [184]-[190]. Beazley P and McColl JA agreed with the reasons of both the Chief Justice and Leeming JA.

[127] Ibid 63 [292]. Basten JA also considered that NCAT is not a court within the meaning of s 77(iii) of the Constitution ((2018) 99 NSWLR 1, 46-7 [228]) but considered that that was not the critical question, that being whether NCAT was exercising federal jurisdiction, which he held it was not. See the discussion of Question 3 below.

[128] Skiwing [2006] NSWCA 185; (2006) 66 NSWLR 77, 84 [29], 86 [44].

[129] See [64] above.

[130] Bradley [2004] HCA 31; (2004) 218 CLR 146, 152 [3], 163 [29]-[30].

[131] See [93] below.

[132] Bradley [2004] HCA 31; (2004) 218 CLR 146, 170 [56].

[133] Office of the Premier v Herald & Weekly Times Pty Ltd [2013] VSCA 79; (2013) 38 VR 684.

[134] Domdada Pty Ltd v Minister for Planning [2016] VCAT 1926.

[135] SVG v Secretary, Department of Justice (Review and Regulation) [2015] VCAT 534.

[136] The express provision for internal promotions suffers from somewhat similar considerations.

[137] Pursuant to the Magistrates Act (NT) s 7.

[139] Bradley [2004] HCA 31; (2004) 218 CLR 146, 170 [56].

[140] See [37]-[38] above.

[141] Gatsby (2018) 99 NSWLR 1, 46 [226] (citation omitted).

[142] K-Generation [2009] HCA 4; (2009) 237 CLR 501, 537 [127].

[143] See [44] above.

[144] See [37] above.

[147] Australasian Institute of Judicial Administration, Guide to Judicial Conduct (Australasian Institute of Judicial Administration Inc, 3rd ed, 2017) 11-18.

[148] Constitution Act 1975 (Vic_)_ s 84A(1) (Supreme Court); County Court Act 1958 (Vic) s 13 (no judge of the County Court shall engage in legal practice), s 13A(1) (no part-time judge of the County Court shall engage in legal practice); Magistrates' Court Act 1989 (Vic) s 7(9).

[149] Constitution Act 1975 (Vic) ss 84A(2)-(3) (Supreme Court); County Court Act 1958 (Vic) ss 13A(2)-(3); Magistrates' Court Act 1989 (Vic) s 7(9A)-(9B).

[150] Constitution Act 1975 (Vic) s 81B (Supreme Court); County Court Act 1958 (Vic) s 12B.

[151] Under s 81E of the Constitution Act 1975 (Vic) a reserve judge of the Supreme Court must not engage in legal practice without the approval of the Chief Justice. Under s 12E(1) of the County Court Act 1958 (Vic) a reserve judge must not engage in legal practice except with the approval of the Chief Judge.

[152] See [71] above.

[153] While the question whether a decision-making body is a 'court of a State' and the question of whether the body is made up of 'judges' are interrelated, we do not consider that they are equivalent or that they produce the 'chicken and egg' conundrum postulated in Owen v Menzies: see [73] above.

[154] Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 66.

[155] See [39] above.

[156] See [77] above.

[157] See [60] above.

[158] See [64] above.

[159] Burns v Corbett (2018) 92 ALJR 423, 440-1 [63] (Kiefel CJ, Bell and Keane JJ), 450 [111] (Gageler J); Skiwing [2006] NSWCA 185; (2006) 66 NSWLR 77, 87-8 [53]-[54].

[160] Constitution Act 1975 (Vic) s 87AAB.

[161] See [51] above.

[162] See [64] above.

[163] Judicial Commission of Victoria Act 2016 (Vic) s 40(2). See [51] above.

[164] See [65] above.

[165] See [46] above.

[166] See [85] above.

[167] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40.

[168] See [69] above.

[169] See [53] above.

[170] See [53] above.

[171] See also GS v MS (2019) 344 FLR 386, 392 [23] where Quinlan CJ held that the State Administrative Tribunal of Western Australia was 'undoubtedly correct' in accepting that it was not a 'court of a State'.

[172] See [11] above.

[173] See [77] above.

[174] It should be noted that New South Wales has passed remedial legislation permitting a person with standing to bring an original application or an external appeal at NCAT to seek leave to commence proceedings in an authorised court (the District Court or the Local Court) for the determination of the application or appeal that NCAT cannot determine because it involves the exercise of federal jurisdiction: see Justice Legislation Amendment Act (No 2) 2017 (NSW), and Justice Legislation Amendment Act (No 3) 2018 (NSW).

[175] The Kable doctrine is another example: see Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[176] Subject to the reservations made by the Commonwealth. See n 23 above.

[177] [2008] FCAFC 104; (2008) 169 FCR 85, 132 [205].

[178] Ibid, citing, in particular, Victorian Chamber of Manufactures v Commonwealth [1943] HCA 22; (1943) 67 CLR 413, 422; R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40, 43.

[179] [1995] HCA 10; (1995) 183 CLR 245 ('Brandy').

[180] [2008] FCAFC 104; (2008) 169 FCR 85, 133 [206]. It also follows that an inability to enforce one's own orders does not preclude an institution from exercising judicial power.

[181] [2008] FCAFC 104; (2008) 169 FCR 85, 133 [207], quoting from A-G (Cth) v Breckler (1999) 197 CLR 83, 110 [42], referring to Kitto J's observations in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374.

[182] [2015] FCA 253; (2015) 228 FCR 148, 163 [65].

[183] See [54] above.

[184] Burns v Corbett [2017] NSWCA 3; (2017) 316 FLR 448, 456 [30] (Leeming JA, referring to NCAT's exercise of judicial power).

[185] See [8] above.

[186] See [55] above.

[187] (2018) 99 NSWLR 1.

[188] See [20]-[23] above.

[189] [2017] HCA 5; (2017) 259 CLR 478.

[190] Ibid 490-1 [24], [26]-[27] (emphasis in original) (citations omitted).

[191] Gatsby (2018) 99 NSWLR 1, 47-8 [233].

[193] Ibid 49 [237] (emphasis in original).

[195] While acknowledging that the other four members of the Court in Gatsby did not endorse this approach.

[196] By reason of s 77(iii) of the Constitution and s 39(2) of the Judiciary Act. See [24]-[25] above.

[197] Burns v Corbett (2018) 92 ALJR 423, 435 [39].

[198] See [77] above.

[199] (2018) 92 ALJR 423, 430 [3] (emphasis added).

[200] [1956] HCA 10; (1956) 94 CLR 254, 272.

[201] (2018) 92 ALJR 423, 436 [45] (emphasis added).

[203] Ibid 441 [68]. Nettle and Gordon JJ took the view that the purported conferral of jurisdiction on a State tribunal that is not a 'court of a State' to decide, in the exercise of State judicial power, matters identified in s 75 or s 76 of the Constitution was inconsistent under s 109 of the Constitution with s 39 of the Judiciary Act, and inoperative to that extent: see 457 [145]-[146] (Nettle J); 458 [151], 466-7 [199]-[200] (Gordon J). Edelman J viewed ss 38 and 39 of the Judiciary Act as operating more directly to exclude the operation of any State law conferring State diversity jurisdiction (supported by s 77(ii)): 468 [208], 478-9 [256] (Edelman J).

[204] Most especially the passage quoted at [119] above.

[205] See Gatsby (2018) 99 NSWLR 1, 38 [194]-[195] where Bathurst CJ said: '[194] This question was not an issue raised by the parties to the present proceedings or the intervener or contradictors and, in my opinion, it is not appropriate for it to be raised now. This is not only because the parties did not choose to raise it, but also having regard to the fact it would require further submissions to be made on the question and further notices to be given to the Attorneys General for the States and the Commonwealth under s 78B of the Judiciary Act, as the question was not encompassed in the original notices. This would inevitably add to further delay in the proceedings. [195] Further, the interests of the underlying litigants must be taken into account. They are no doubt desirous of having their somewhat simple claims heard as expeditiously as possible. In those circumstances, it seems to me inappropriate to express any view on the issue, particularly having regard to the terms of s 78B of the Judiciary Act.' Leeming JA agreed with the Chief Justice that, in the absence of argument and s 78B notices, it was inappropriate to address whether there was a 'matter' before NCAT. Basten JA responded that a further opportunity could be given to the parties to be heard: 55-6 [259]-[260].

[206] In Gatsby Batsen JA remarks that it was common ground in Burns v Corbett that the disputes before the court were 'matters between residents of different States, within the meaning of s 75(iv) of the Constitution' and goes on to say: 'accordingly, not being in issue, it cannot have been determined by that case': Gatsby (2018) 99 NSWLR 1, 56-7 [262]-[263]; Burns v Corbett (2018) 92 ALJR 423, 435 [38]-[40].

[207] Gatsby (2018) 99 NSWLR 1, 45 [222].

[208] The Attorney General for New South Wales originally challenged NCAT's conclusion that it was exercising judicial power but this was later abandoned: Gatsby (2018) 99 NSWLR 1, 55 [259].

[209] Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 266.

[210] [2017] HCA 5; (2017) 259 CLR 478, 491 [27] (referring to Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265); Gatsby (2018) 99 NSWLR 1, 51-2 [245]. See [112] above.

[211] [1911] HCA 17; (1911) 12 CLR 667, 674-5.

[212] Gatsby (2018) 99 NSWLR 1, 47 [231].

[213] Ibid 47-8 [233] (emphasis added).

[215] Ibid 48-9 [235]-[236] (emphasis added) (citations omitted).

[216] See [30] above.

[217] See [113] above.

[218] Gatsby (2018) 99 NSWLR 1, 49 [237] (emphasis in original).

[219] [1999] HCA 14; (1999) 197 CLR 510.

[220] Ibid 524-5 [25] (emphasis added).

[221] Gatsby (2018) 99 NSWLR 1, 49 [239] (emphasis added).

[223] (2018) 92 ALJR 423, 441 [70]. See also the judgment of the plurality: (2018) 92 ALJR 423, 435 [43].

[224] See [119] above.

[225] See [118]-[122], [124], [125] above.

[226] For a somewhat similar provision in the EO Act, see s 188 that provides: 'A contravention of this Act does not create any civil or criminal liability except to the extent expressly provided by this Act'.

[227] Gatsby (2018) 99 NSWLR 1, 52 [247]-[248], 53 [250] (emphasis added).