National Disability Insurance Agency v Attorney-General for the Australian Capital Territory [2020] ACTSC 52 (13 February 2020)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

National Disability Insurance Agency v Attorney-General for the Australian Capital Territory

[2020] ACTSC 52

STATUTES - ACTS OF PARLIAMENT - Interpretation - s 121 of the Legislation Act 2001 (ACT) - meaning of 'government entity' - conferral of Crown immunity for authorised acts or omissions - National Disability Insurance Agency and its partners - inconsistency between legislation - severance clause

JURISDICTION - ACT CIVIL AND ADMINISTRATIVE TRIBUNAL - Unlawful discrimination and inequitable treatment - complaint referred by the ACT Human Rights Commission -authority of Tribunal to adjudicate

ACT Civil and Administrative Tribunal Act 2008 (ACT) s 9

Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 27, 28

Court Procedures Act 2004 (ACT) s 27(2)

Discrimination Act 1991 (ACT) s 20

Human Rights Commission Act 2005 (ACT) ss 8, 40, 42(1), 43, 45, 53A, div 4.2A

Legislation Act 2001 (ACT) ss 120, 121

National Disability Insurance Scheme Act 2013 (Cth) s 122, pt 2

Public Service Act 1999 (Cth)

AGU v Commonwealth of Australia (No 2) [2013] NSWCA 473; 86 NSWLR 348

Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1

Clubb v Edwards; Preston v Avery [2019] HCA 11; 93 ALJR 448

Commonwealth of Australia v State of Western Australia [1999] HCA 5; 196 CLR 392

National Disability Insurance Agency (Initiating Party)

Attorney-General for the Australian Capital Territory (Intervener)

1. This is a Special Case application from the ACT Civil and Administrative Tribunal (the Tribunal).
2. The questions to be answered as they were originally framed are as follows:
   • (1) Is the National Disability Insurance Agency (NDIA) not subject to the Discrimination Act 1991 (ACT) (Discrimination Act), Human Rights Commission Act 2005 (ACT) (HRC Act) or ACT Civil And Administrative Tribunal Act 2008 (ACT) (ACAT Act), in relation to 'authorised acts or omissions' by reason of s 121 of the Legislation Act 2001 (ACT) (Legislation Act)?
   • (2) Is Feros Care not subject to the Discrimination Act, HRC Act or ACAT Act, in relation to 'authorised acts or omissions' by reason of s 121 of the Legislation Act?

1. The NDIA is a body corporate established by the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) and may sue and be sued. They were the first respondent in the matter before the Tribunal.

4. On 18 August 2015, Iris Frank was granted access to the National Disability Insurance Scheme (NDIS). On 30 September 2016, the NDIA approved a participant plan for Ms Frank pursuant to Pt 2 of the NDIS Act. Ms Frank was the applicant in the matter before the Tribunal.

1. Feros Care is a not-for-profit public company limited by guarantee. Feros Care is a partner to the NDIA under the NDIS Partners in the Community Program Grant Agreement signed on 13 February 2016 and amended via a deed executed on 16 February 2017. Under this Agreement, Feros Care provides Local Area Coordination services on behalf of the NDIA in various locations. They were the second respondent in the matter before the Tribunal.
2. In September 2017, Feros Care conducted a plan review meeting with Ms Frank ahead of the scheduled review date for her plan.
3. On 18 September 2017, NDIA approved a new participant plan for Ms Frank. Ms Frank sought internal review.
4. Also on 18 September 2017, Ms Frank made a complaint to the ACT Human Rights Commission (ACT HRC) alleging unlawful discrimination and inequitable treatment by the NDIA and Feros Care in relation to her NDIS participant plan. On 5 October 2017, Ms Frank provided further information to the ACT HRC.
5. On 4 December 2017, NDIA approved a new plan reflecting the outcome of the internal review.
6. On 9 October 2018, the ACT HRC referred Ms Frank's complaint to the Tribunal. Ms Frank provided further information about her complaint to ACAT on 26 November 2018.
7. At the first directions hearing on 5 November 2018, the NDIA raised the question about ACAT's jurisdiction. NDIA and Feros Care filed written submissions on this issue.
8. On 5 February 2019, the Attorney-General of the ACT (the Attorney-General) intervened in the proceedings pursuant to s 27(2) of the Court Procedures Act 2004 (ACT) and filed written submissions. The NDIA and Feros Care filed written submissions in reply.
9. On 15 February 2019, the Tribunal made orders as follows:

(a) On 18 September 2017 the applicant made a discrimination complaint about the National Disability Insurance Agency and Feros Care to the ACT Human Rights Commission;

(b) On 9 October 2018 the ACT Human Rights Commission referred the complaint to the Tribunal pursuant to s 53A of the Human Rights Commission Act 2005;

(c) The NDIA and Feros Care have raised as a preliminary issue that the Tribunal lacks jurisdiction in the matter because the Discrimination Act 1991, Human Rights Commission Act 2005 and ACT Civil and Administrative Tribunal Act 2008 (the ACT legislation) do not bind the NDIA or Feros Care; and

(d) The preliminary issue involves a question of law that raises an issue of public importance;

1. The following question of law is referred to the Supreme Court: "Is Feros Care not subject to the ACT legislation in relation to 'authorised acts or omissions' by reason of the Legislation Act 2001, s 121?".

The Tribunal notes: should the answer be 'yes', the Tribunal will continue the hearing of the preliminary issue, including hearing evidence and submissions as to whether any of the acts or omissions complained of in the discrimination complaint are 'authorised acts or omissions'.

The Tribunal further notes: Feros Care and the Intervener will obtain Counsel's advice and liaise to prepare any statement of agreed facts, or suggested rephrasing of the question prior to the first mention of the matter in the Supreme Court.

1. At the hearing in this Court, NDIA set out amendments in respect of the questions to be decided as formulated. This was done with the consent of the parties and the questions to be answered are as follows:
   • (1) On its proper construction, does s 121 of the Legislation Act confer an immunity on the NDIA in respect of the following provisions:
     • (a) Section 20 of the Discrimination Act;
     • (b) Sections 40, 42(1)(b) and (c), 43 and 45 and Div 4.2A of the HRC Act; and
     • (c) Section 9, read with the definition of 'application' within the Dictionary, of the ACAT Act?
   • (2) If the answer to Question 1 is "yes", does the Tribunal have the authority to entertain the complaint the subject of the referral identified in [11] of the Special Case insofar as that complaint concerns the NDIA?
   • (3) On its proper construction, does s 121 of the Legislation Act confer an immunity on Feros Care in respect of the following provisions:
     • (a) Section 20 of the Discrimination Act;
     • (b) Sections 40, 42(1)(b) and (c), 43 and 45 and Div 4.2A of the HRC Act; and
     • (c) Section 9, read with the definition of 'application' within the Dictionary, of the ACAT Act?
   • (4) If the answer to Question 3 is "yes", does the Tribunal have authority to entertain the complaint the subject to the referral identified in [11] of the Special Case insofar as that complaint concerns Feros Care?
   • (5) Who should pay the costs of this Special Case?
   • (6) What orders or directions should this Court make in light of the answers to Questions 1 to 5 above?
2. Ms Frank did not appear, nor was she represented in this Court. Counsel for each of the other parties prepared written submissions to which they spoke, and a joint list of authorities was provided.
3. Senior Counsel for NDIA, in his submissions, set out his argument in support of his case as follows:

In summary, the NDIA says: by reason of s120 of the Legislation Act 2001 (ACT) (Legislation Act), s20 of the Discrimination Act 1991 (ACT) (Discrimination Act), s40 and Div 4.2A of the Human Rights Commission Act 2005 (ACT) (HRC Act) and s9 read with the definition of "application" with the dictionary to the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) are each to be construed so as to remain within the limits of legislative power (notably, the constraints imposed by s27 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)). It follows that these provisions: (a) do not "bind a government" (being the Commonwealth) within the meaning of s121(4) of the Legislation Act, and (b) likewise do not bind a "government entity" in the ways specified in s121(4) (described using the statutory term 'immunity'). The NDIA is such a "government entity" and has the benefit of that "immunity". For those reasons, the Tribunal had no power to entertain the complaint the subject of the referral identified in para [11] of the Special Case insofar as that complaint concerned the NDIA.

1. He expanded his arguments in oral address.
2. Counsel for Feros Care, in his written submissions, noted the "real issue" for determination by the Court is whether, on its proper construction, s 121 of the Legislation Act confers an immunity on NDIA and/or Feros Care in respect of:
   • (a) Section 20 of the Discrimination Act;
   • (b) Section 40 and Div 4.2 A of the HRC Act; and
   • (c) Section 9, read with the definition of 'application' in the Dictionary, of the ACAT Act.
3. Feros Care submitted that s 121 of the Legislation Act confers such an immunity and it follows that the Tribunal has no jurisdiction to entertain the complaint made by Ms Frank, which was referred under the HRC Act.
4. Feros Care accepts the written submissions of NDIA in respect of [2] to [42] and adopts those matters, with all necessary changes to apply them to Feros Care's circumstances.
5. The Attorney-General, in their written submission, states that the contentions of NDIA and Feros Care should be dismissed as:
   • (a) Section 121(1) provides that an act of the ACT Legislative Assembly binds everyone, including NDIA and Feros Care;
   • (b) To the extent that s 27 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) limits the operation of s 121(1), it has no application to NDIA and Feros Care;
   • (c) NDIA and Feros Care cannot rely on s 121(4) of the Legislation Act to provide immunity from the operation of ACT legislation because neither NDIA or Feros Care is a "government entity" as within the meaning of that provision; and
   • (d) Further or alternatively, there is an inconsistency within the meaning of s 28 of the Self-Government Act between s 121(4) and s 122 of the NDIS Act as they apply to the NDIA, such that s 121(4) has no operation to the extent of that inconsistency.
6. Thus, the Attorney-General submitted the questions in the Special Case application should be answered:
   • (1) No;
   • (2) Need not be answered;
   • (3) No;
   • (4) Need not be answered;
   • (5) Respondents should pay costs; and
   • (6) Remit the matter to the Tribunal for further determination.

1. Iris Frank suffers from a number of disabling conditions including spastic diplegia, severely dislocated hips, ataxia and related conditions. She has been a participant in the NDIS since September 2015.
2. NDIS plans were provided and facilitated by planners from NDIA. In around May 2017, the NDIA contacted Feros Care to undertake Local Area Coordination functions and an NDIS plan interview by telephone with Ms Frank. At that time, Ms Frank said she was in poor health suffering a respiratory infection and awaiting hip revision surgery.
3. Ms Frank was distressed by the conduct of the interview by a representative of Feros Care and felt there was a lack of understanding of her needs and requirements in respect of her disabilities and related support needs. She thought Feros Care had a negative and accusatory attitude towards her.
4. Following the interview, a new plan was formulated in about September 2017 which provided minimal funding with no Automated Transport Allowance which she had previously received. She thought no acceptable explanations were given for this plan. As a consequence, Ms Franks refused further contact with Feros Care.

1. Ms Frank complained to the ACT HRC, alleging unlawful discrimination and inequitable treatment. In respect of the discrimination complaint, s 20 of the Discrimination Act states:
   1. Goods, services and facilities

It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person -

(a) by refusing to provide those goods or services or make those facilities available to the other person; or

(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.

1. In relation to when someone may complain about a disability service, s 40 of the HRC Act states:
   1. When may someone complain about a disability service?

A person may complain to the commission about a disability service if -

(a) the service is not being provided appropriately; or

(b) the person believes that the provider of the service has acted inconsistently with any of the following:

• (i) the Home and Community Care National Service Standards, as amended from time to time;

• (ii) the human rights principles set out in the Disability Services Act 1991, schedule 1;

• (iii) the requirements to be complied with in relation to the design and implementation of programs and services relating to people with disabilities set out in the Disability Services Act 1991, schedule 2;

• (iv) the National Standards for Mental Health Services endorsed by the Australian Health Ministers Advisory Council's National Mental Health Working Group, as amended from time to time;

• (v) the generally accepted standard of service delivery expected of a provider of the kind of service to which the complaint relates;

• (vi) standards (if any) approved under the Disability Services Act 1991, section 11 (Disability service standards);

• (vii) any other standard prescribed by regulation; or

(c) the service is not being provided.

1. Sections 42 and 43 of the HRC Act are also relevant and set out what complaints may be made.
2. The ACT HRC referred Ms Frank's complaint to the Tribunal advising this step was taken in accordance with s 53A of the HRC Act. This states:

(1) This section applies if -

• (a) either -

  • (i) a complainant is given a discrimination referral statement under section 45 (2) (d); or
  • (ii) a statement under section 82 (1) is included in a final report in relation to a complaint; and

• (b) within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT.

(2) The commission must -

• (a) refer the complaint to the ACAT; and
• (b) tell the complainant and the person complained about in writing about the referral.

1. Section 9 of the ACAT Act states:
   1. Applications under authorising laws

A person may apply to the tribunal if an authorising law provides that the application may be made.

1. A "disability service" is defined in s 8 of the HRC Act as:
   1. What is a disability service?
      • (1) A disability service is a service provided in the ACT specifically for people with a disability or their carers.

1. It is necessary for me to now look to ss 120 and 121 the Legislation Act.
   1. Act to be interpreted not to exceed legislative powers of Assembly
      • (1) An Act is to be interpreted as operating to the full extent of, but not to exceed, the legislative power of the Legislative Assembly.
      • (2) Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding the legislative power of the Legislative Assembly -
        • (a) the provision is valid to the extent to which it does not exceed power; and
        • (b) the remainder of the Act is not affected.
      • (3) Without limiting subsection (1), if the application of a provision of an Act to a matter would, apart from this section, be interpreted as exceeding power, the provision's application to other matters is not affected.
      • (4) This section is in addition to any provision of the Act itself.
      • (5) This section is a determinative provision.
   2. Binding effect of Acts
      • (1) An Act binds everyone, including people who are not Australian citizens and all governments.

Note See the Self-Government Act, s 27 which provides that, except as provided by the regulations under that Act, an ACT enactment does not bind the Crown in right of the Commonwealth. See also s 120.

(2) However, an Act does not bind the Territory to the extent that it requires or otherwise provides for the payment of money that, on payment, would form part of the public money of the Territory.

(3) Also, subsection (1) does not make a government liable to be prosecuted for an offence.

(4) To the extent that an Act does not bind a government, the same degree of immunity extends to a government entity in relation to an authorised act or omission of the entity.

(5) This section is a determinative provision.

(6) In this section:

authorised - an act or omission of a government entity is authorised if -

(a) for an instrumentality - the act or omission relates to a matter within the scope of the instrumentality's functions; and

(b) for an officer or employee of the government - the act or omission relates to a matter within the scope of the duties of the officer or employee; and

(c) for a contractor who exercises a function on behalf of the government - the act or omission relates to a matter within the scope of the contract; and

(d) for anyone else who exercises a function on behalf of the government - the act or omission relates to a matter within the scope of the person's engagement.

government includes the Territory, the Commonwealth, a State, another Territory or New Zealand.

(a) an instrumentality, officer or employee of the government; and

(b) a contractor or anyone else who exercises a function on behalf of the government.

1. The Self-Government Act states at ss 27 and 28:

Except as provided by the regulations, an enactment does not bind the Crown in right of the Commonwealth.

(1) A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

(2) In this section:

(a) a law in force in the Territory (other than an enactment or a subordinate law); or

(b) an order or determination, or any other instrument of a legislative character, made under a law falling within paragraph (a).

1. Lastly, s 122 of the NDIS Act is also relevant. It states:

122 Agency does not have privileges and immunities of the Crown

The Agency does not have privileges and immunities of the Crown in right of the Commonwealth.

Does s 121 of the Legislation Act confer an immunity on NDIA and Feros Care in respect of s 20 of the Discrimination Act, ss 40, 42(1)(b) and (c), 43 and 45 and Div 4.2A of the HRC Act, and s 9, read with the definition of 'application' in the Dictionary, of the ACAT Act?

1. In looking to s 121, the Court is required to identify the purpose or object of the relevant aspect of the Legislation Act. Section 121(4) appears in ch 12 of the Act and is concerned with enactments of the Legislative Assembly of the ACT made under the Self-Government Act. Section 120(1) reflects the limits on the legislative power of the Legislative Assembly.
2. Section 120(3) embodies the notion of partial disapplication and if the application for provision of an act would, apart from this section, be interpreted as exceeding power, then the matters that remain within the power are not affected.
3. A similar provision was looked at in the High Court in Clubb v Edwards; Preston v Avery [2019] HCA 11; 93 ALJR 448. This related to so-called abortion protest laws enacted by Victoria and Tasmania. Gaegler J refers to ACT legislation and explains the effect of a severance clause, subject to a legislature manifesting a contrary intention as to the operation of a particular law, at [141]:

The settled effect of a severance clause is "to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail".

1. I note that s 121(1) states the Act binds "everyone", including people who are not Australian citizens and "all governments". This reflects the notion of Crown immunity.
2. In Commonwealth of Australia v State of Western Australia [1999] HCA 5; 196 CLR 392, Gleeson CJ and Gaudron J, at [32], set out the meaning of Crown immunity saying:

There is a common law rule or presumption that "no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound". And it was held in Bradken Consolidated Ltd v BHP Co Ltd that, within Australia, that presumption applies to "the Crown in all its capacities" and not simply "the Crown in right of the community whose legislation is under consideration"...

1. It is noted the presumption is not to be treated as an inflexible rule involving a stringent test of necessary implication: Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1. Thus, there is a common law presumption that says the Crown is not bound.
2. In AGU v Commonwealth of Australia (No 2) [2013] NSWCA 473; 86 NSWLR 348, Basten JA addressed the useful way of understanding a provision such as s 121(1), a provision designed to rebut the presumption that the Crown is not bound, saying at [25]:

The primary purpose of a declaration in a statute that the "Crown" is bound by its provisions is clear: it is intended to rebut a general presumption of statutory interpretation that the Crown was not bound: Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 14-15.

The principle to be extracted from these authorities is that such a provision, while effective to rebut the general presumption that a statute does not bind the government which passed it, will be a factor, not necessarily determinative, in determining whether specific provisions apply in relation to other bodies politic.

Do NDIA and Feros Care fall within the definition of 'government entity'?

1. 'Government entity' is defined in s 121(6) of the Legislation Act, non-exhaustively, to include "[a]n instrumentality, officer or employee of the government, and a contractor or anyone else who exercises a function on behalf of the government". This definition seems to me to encompass both NDIA (as an instrumentality) and Feros Care (as a contractor).
2. Senior Counsel for NDIA submitted that the term 'immunity' in s 121(4) of the Legislation Act is simply the notion that an act does not bind a government and this rests upon a particular construction of the particular Territory act which may involve an application of the orthodox principles of construction as set out in s 120. It is submitted that if this is correct, then a government entity is immune to the same degree in relation to the specified authorised acts or omissions as defined in s 121(6), noting also the definition of government entity in that section.
3. The Attorney-General submitted that the NDIA is not a 'government entity' as defined by s 121(6) for the purposes of s 121(4). Senior Counsel for the Attorney-General submitted that the intention of the Commonwealth legislature, in enacting the NDIS Act, was to establish a body independent from the government, and any governmental influence is not exclusive to the Commonwealth as there are statutory requirements to consult and, at times, seek consent from host jurisdictions.
4. Further, the Attorney-General submitted that the NDIA is not an instrumentality of the Commonwealth within the meaning of s 121(6), and whilst agreed that there is engagement of staff for the NDIA under the Public Service Act 1999 (Cth), the NDIA also makes provision for the services of employees of the public service of the State or Territory be made available to NDIA staff. Thus, NDIA is a statutory body under the shared or intergovernmental influence of both Commonwealth and State and Territory host jurisdictions and is thus not capable of being characterised as an instrumentality of the Commonwealth government. Section 121(4) thus has no application.
5. The NDIA was established only by Commonwealth legislation and its functions and powers are conferred by that legislation. It was created to administer a national scheme, thereby serving a Commonwealth government purpose. That purpose is to fund persons or entities to enable them to assist people with disabilities to participate in economic and social life.
6. Further, it appears to me that NDIA is ultimately financially dependent on the Commonwealth. The only guaranteed funding for the NDIA is from funds appropriated by the Commonwealth Parliament. It can receive monies paid to it by a host jurisdiction for funding reasonable and necessary support but the money from an agency is only to be applied in payment or discharge of any expenses, charges and obligations incurred or undertaken by the agency and thus I accept that it is the Commonwealth which exercises all significant control.
7. The NDIA is also subject to direction by the responsible Minister and has a Board and a Chair appointed by the Minister. Whilst there should be consultation with the States in respect of appointments to the Board and Chair, if that fails, the Minister has the ultimate responsibility for appointments. The Board and Chair are apparently remunerated under a determination of the Remuneration Tribunal and the NDIA is staffed by persons engaged under the Public Service Act 1999 (Cth) and thus employed by the Commonwealth.
8. Feros Care submitted that it satisfies the plain language of ss 121(4) and (6) and is thus a government entity, enjoying the same degree of immunity as the Commonwealth under the Self-Government Act and regulations. Thus, the Tribunal has no jurisdiction to entertain the complaint made by Ms Frank.
9. In respect of Feros Care, the Attorney-General submitted it is not a 'government entity' and does not enjoy Crown immunity, noting that Feros Care entered a contract with NDIA and not the Commonwealth to provide those services.
10. Feros Care is a not-for-profit public company. It was retained to provide Local Area Coordination services in accordance with the NDIS Partners in the Community Program and in doing so, amounts, in my mind, to a 'contractor' or 'anyone else' exercising a function on behalf of the Commonwealth under the NDIS Act. The intention of the NDIS is to comprise "funding for persons or entities to enable them to assist people with a disability to participate in economic and social life and for them to provide individual plans under which reasonable and necessary supports would be funded for participants". Feros Care assists people with a disability to engage with the Commonwealth NDIS and they are obliged to prepare and give NDIA plans and plan implementations. It was them who prepared a plan for Ms Frank, which is the subject of Ms Frank's complaint.
11. The function which NDIA and Feros Care were then exercising seemed to me to have been a function on behalf of the Commonwealth government. NDIA was providing funding out of public money tied to the Commonwealth to assist Ms Frank to deal with her disability and Feros Care was reviewing her participant plan under the NDIS Act.
12. In regards to the Attorney-General's submission that Feros Care was contracted to NDIA and not the Commonwealth; clearly, NDIA was created by a Commonwealth statute to administer a national scheme and thus serves a Commonwealth government purpose. Therefore, by contracting with NDIA, Feros Care was contracting with a government entity. Further, it seems clear to me that Feros Care was performing a service for Ms Frank within the scope of its contract with NDIA and was exercising a function on behalf of the Commonwealth government within the terms of s 121(6). Thus, NDIA and Feros Care fall within the definition of a government entity.

Inconsistency between the Legislation Act and NDIS Act

1. The Attorney-General further submitted that there is an inconsistency within the meaning of s 28 of the Self-Government Act and between s 121(4) of the Legislation Act and s 122 of the NDIS Act as they apply to NDIA, such that s 121(4) has no operation to the extent of that inconsistency. Accordingly, by operation of s 28 of the Self-Government Act, s 121(4) of the Legislation Act cannot have the effect of excluding NDIA from the application of the HRC Act, ACAT Act or the Discrimination Act.
2. Senior Counsel for NDIA submitted that this brings into play the second operation of s 120(1) of the Legislation Act in respect of the limits on the legislative power of the Legislative Assembly and, read with subsections (2) and (3), has an operation similar to the constitutional imperative in favour of severance being a generally expressed provision which would apply to a larger subject matter or class of persons than the limited grant of power allows. He further submitted that the statutory imperative created by s 120(2) requires those Territory enactments be construed so as to exclude any application to the Crown in right of the Commonwealth, even if that requires an entirely artificial construction and when so construed, does not bind the Commonwealth.
3. Clearly, the question of whether any Territory enactment binds the government is a question of construction and must be looked at in that fashion.
4. It seems that on a proper construction, s 122 of the NDIS Act provides that the NDIA does not have the privileges and immunities of the Crown in the right of the Commonwealth. Thus, there is no scope for ACT law to operate concurrently on the subject of whether NDIA may rely on Commonwealth immunity.
5. I accept that s 120(1) requires s 121(1) be interpreted so as not to exceed the legislative power of the Legislative Assembly. The note in s 121(1) draws attention to the constraints imposed by s 27 of the Self-Government Act which states that, except as provided and specified by the regulations, an enactment does not bind the Crown in right of the Commonwealth. Thus, the relevant act must be specified in the schedule to those regulations to bind the Crown and it is clear to me that neither the HRC Act nor the ACAT Act are so specified.

1. I have therefore come to the conclusion and I am satisfied that, on its proper construction, s 121 of the Legislation Act confers an immunity on the NDIA in respect of s 20 of the Discrimination Act, ss (40), 42(1)(b) and (c), 43, 45, Div 4.2A of the HRC Act, s 9, read with the definition of 'application' in the Dictionary, of the ACAT Act and thus I note that the answer to Question 1 is "yes".
2. In relation to Question 2, I answer "no". The Tribunal does not have the authority to entertain the complaint the subject of the referral in the Special Case application insofar as NDIA is concerned.
3. For Question 3, on the proper construction of s 121 of the Legislation Act, an immunity is conferred upon Feros Care in respect of s 20 of the Discrimination Act, ss (40), 42(1)(b) and (c), 43, 45, Div 4.2A of the HRC Act, s 9, read with the definition of 'application' in the Dictionary, of the ACAT Act and therefore, the answer to that question is "yes".
4. In relation to Question 4, I answer "no". The Tribunal does not have the authority to entertain the complaint the subject of referral in the Special Case application insofar as Feros Care is concerned.
5. Question 5 is in relation to costs. The Attorney-General submitted that each party should pay its own costs and that submission is also adopted by NDIA. The only party who sought their costs be paid in relation to this matter was Feros Care, who have made an impassionate plea in relation to payment of their costs by the Attorney-General on the basis that it was necessary and in the public interest for there to be clarification of the law in the matter. It is also submitted that in the usual fashion, costs follow the event and that s 27 of the Court Procedures Act is applicable.
6. I have considered all the submissions that have been made in relation to this issue and come to the conclusion that each party is to pay their own costs, noting the assistance provided by the Attorney-General and noting also that the matter was dealt with speedily and economically by all parties at the hearing.
7. In relation to Question 6, I have heard submissions from each of the parties in relation to what should now happen.
8. I make the following orders:
   • (a) Question 1: The answer is yes;
   • (b) Question 2: The answer is no;
   • (c) Question 3: The answer is yes;
   • (d) Question 4: The answer is no;
   • (e) Question 5: Each party is to pay their own costs; and
   • (f) Question 6: The matter is referred back to the Tribunal to advise Ms Frank of the orders made in this Court. The Court suggests to the Tribunal that the application should be dismissed due to there being no further jurisdiction for them to continue.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford.