Set aside by Appeal : Set aside by Appeal on 11/12/06: Attorney General v... [2006] NSWCA 349 | Case summary

REASONS FOR DECISION 1 This decision deals with a preliminary question that has arisen in connection with an appeal to an Appeal Panel of the Tribunal against a decision of the Equal Opportunity Division. The decision is made by the presiding member of the Appeal Panel sitting alone as permitted by s 24A of the Administrative Decisions Tribunal Act 1997 (the ADT Act). 2 The Equal Opportunity Division of the Tribunal has found (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267) that the appellants engaged in unlawful acts of homosexual vilification, thereby contravening s 49ZT of the Anti-Discrimination Act 1977 (ADA) which provides: ' 49ZT Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.' 3 Parties may appeal to the Appeal Panel, as of right on questions of law, against decisions of the Equal Opportunity Division of the Tribunal: ADT Act, ss 112, 113. 4 In their submissions the appellants have challenged the constitutional validity of s 49ZT, either generally or as it applies to this case, on the ground that it places a burden on the freedom of political communication, an implied right under the Commonwealth Constitution: see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; Coleman v Porter (2004) 78 ALJR 1166. This is a 'federal' or 'constitutional' question. Competence of Tribunal to Consider Constitutional Question 5 It is necessary to decide whether the Tribunal is competent to determine such a question. The appellants gave notice of this submission to the Attorney General of New South Wales. 6 The Attorney General has intervened, exercising the right given by s 69 of the ADT Act. The Attorney General objects to the Tribunal considering the question on the ground that the Tribunal is not a 'court' within the meaning of s 39(2) of the Judiciary Act 1903 (the Judiciary Act) and therefore it is not invested with the authority to hear matters arising under the Constitution or involving its interpretation (see Commonwealth Constitution, s 76(i) and s 77(iii)). 7 The Attorney's position is that the Tribunal is obliged to accept the constitutional validity of s 49ZT of the ADA, and that the one option available to the Appeal Panel is to refer any question requiring interpretation of the Constitution to the Supreme Court pursuant to ADT Act s 118(1). 8 The Attorney General's objection is opposed by the appellants, and they are supported on this point by the respondent. Relevant Provisions 9 The following provisions have been referred to in the course of argument. Covering Clause 5 10 Covering Clause 5 is s 5 of the Commonwealth of Australia Constitution Act (Imp), 63 & 64 Vict. C. 12, the Imperial statute creating the Australian Federation, and enacting the Constitution of the Commonwealth of Australia: ' 5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.' The Commonwealth Constitution ' 71. 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. … … 75. 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. 76. 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. 77. 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.' 11 The Commonwealth Parliament exercised the power conferred by s 77 by means of the Judiciary Act, the provision of immediate relevance being s 39(2), the critical words being those italicised below: ' Federal jurisdiction of State Courts in other matters s 39 (1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section. (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise. Special leave to appeal from decisions of State Courts though State law prohibits appeal (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge. Exercise of federal jurisdiction by State Courts of summary jurisdiction (d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred. 12 The respondent's reply has three limbs - · one, the Tribunal, and more particularly the Equal Opportunity Division and the Appeal Panel when it is hearing appeals from the Equal Opportunity Division, is a 'court' within the meaning of s 39(2); · two, if it is not a 'court' within the meaning of s 39(2), it is entitled like any administrative body bound to apply the law, to determine the scope of its powers and the extent of its jurisdiction; and · three, it is unnecessary to determine the question by reference to the Judiciary Act, as Covering Clause 5 requires bodies such as the Tribunal to apply the whole of the law, including federal constitutional law, when determining a legal question or controversy. 13 As to the last point, the Attorney's submission is that it is clear that the Constitution distributes the power to determine constitutional matters in a particular way. This occurred with the passage of the Judiciary Act, so to that extent Covering Clause 5 is not applicable. 14 I will begin by examining the issues from the viewpoint of the Judiciary Act. Is the Equal Opportunity Division a 'Court' within the meaning of the Judiciary Act? 15 There is only one case in New South Wales that has directly considered the question of whether a State body is a court for the purposes of s 39(2): Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 (CA, Spigelman CJ, Handley and Ipp JJA) (Fuentes). There is another case where allusions are made to the question: Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 (Dao No 2). At the High Court level an important case is The Commonwealth of Australia v Hospital Contribution Fund (1982) 150 CLR 49 (HCF) where the High Court held that a 'Court' for the purposes of s 39(2) could be comprised of a Master of the Supreme Court of New South Wales, overruling previous authority which had held that a s 39 'Court' could only be constituted by Judges (Kotsis v Kotsis (1970) 122 CLR 69). 16 The main case law concerns the use of the word 'courts' in statutes other than the Judiciary Act. I will commence by examining how the question has been approached in the non-Judiciary Act context and then return to Orella-Fuentes and Dao No 2. 17 The most relevant of the non-Judiciary Act cases, in my view, is an Appeal Panel decision made this year relating to the Retail Leases Division: Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd trading as Café Tiffany's [2005] NSWADTAP 9 ('Trust Company'). In proceedings in the Retail Leases Division of the Tribunal, an applicant sought to have considered a claim that the respondent had breached s 52(1) of the Trade Practices Act 1974 (Cth) (TPA) as part of a retail tenancy claim lodged pursuant to the Retail Leases Act 1994. 18 The applicant was met with the objection that the Tribunal was not competent, as this was a matter belonging to the federal jurisdiction, and the Tribunal had not been invested with federal jurisdiction. The provision in the TPA, s 86(2), conferring federal jurisdiction on State courts is in relevantly identical terms to s 39(2) of the Judiciary Act (emphasis added): ' The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise , … with respect to any matter arising under …Division 1, 1A or 1AA of Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.' 19 The Appeal Panel held that the Retail Leases Division was a 'court' for the purpose of this provision. It is helpful to set out its extensive survey of the relevant law. It begins by referring to three New South Wales cases dealing with the status of tribunals dealing with mercantile law disputes: '54 The Tribunal's status as a 'court'. In each of three cases decided in New South Wales, a tribunal whose functions and procedures were similar, in relevant respects, to those of this Tribunal in the exercise of its retail leases jurisdiction was held to be a 'court'. 55 First, in State Rail Authority NSW v Consumer Claims Tribunal (1988) 14 NSWLR 473, the Court of Appeal held that the Consumer Claims Tribunal ('the CCT') was a 'court' and accordingly could hear and determine a 'consumer claim' brought against the State Rail Authority. By virtue of a number of provisions in the legislation governing the Authority, the Court was satisfied that it could sue and be sued in 'the ordinary courts of the land'. Hope JA, with whom Samuels and Clarke JJA agreed, held that the CCT fell within this category. It exercised judicial power and possessed 'a jurisdiction which can, within its prescribed limits, be regarded as a jurisdiction of a court to resolve issues arising under contracts for the supply of goods or services' ((1988) 14 NSWLR 473 at 479). 56 In so deciding, Hope JA took account of a number of factors, including the following: (a) provisions in the CCT's governing legislation (the Consumer Claims Tribunal Act 1974 , ss 17 and 20) which conferred jurisdiction upon it to hear and determine any 'consumer claim' referred to it and stated that, with limited exceptions, its decisions should be final and binding upon the parties and not subject to appeal; (b) the fact that any 'consumer claim', as defined in s 4(1) of this Act, necessarily arose out of a contract for the provisions of goods and/or services; and (c) the obligations imposed on the CCT to resolve consumer claims in accordance with the general law and on the basis of the evidence put before it, and to keep a record of the issues in dispute and its decision on those issues. 57 Hope JA referred also to a number of countervailing factors. These were that (i) the CCT was not bound by the rules of evidence; (ii) it could inform itself in such manner as it thought fit; (iii) its procedures were informal in a number of respects; (iv) it could not enforce its own orders, though its orders were enforceable, as claims for money, through the Court of Petty Sessions (Local Court); and (v) it was directed by s 23(2) of the Act to make orders that were 'fair and equitable' between the parties (save where it dismissed a claim or ordered that a party be relieved from an obligation to pay money). He held however that despite these factors the CCT did not in any sense dispense 'palm tree justice'. Its discretion under s 23(2) was not different in kind from the discretion often exercised by 'ordinary' courts in deciding what alternative forms of available relief should be granted. 58 At 478, Hope JA indicated that the test to be applied was that contained in the judgment of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375. Omitting the final sentence, the passage that he quoted from this judgment is as follows: - Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those person or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the person between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. 59 The second case in this line of authority was Harvey v Victims Compensation Tribunal [2001] NSWSC 604. Here Dowd J cited the State Rail Authority case in ruling at [19], without detailed discussion, that the Victims Compensation Tribunal was 'an Inferior Court for the purposes of [the Supreme Court's] consideration, and for the application of the principles of judicial review'. 60 Thirdly, in Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 at [15 - 16], Bell J held as follows in relation to the Fair Trading Tribunal: - 15 The Tribunal is given jurisdiction to hear and determine building claims pursuant to s 89B of the Home Building Act 1989. Section 89C(1)(a) of that Act provides that the Tribunal may make an order: "That one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by any specified person." 16 The Tribunal has been vested with the power to determine disputes between citizens settling for the future the existence of rights and obligations. It approaches the determination of claims before it by ascertaining the law and applying it to the facts as it finds them to be. Its determinations are immune from traditional forms of review pursuant to s 60 of the [Fair Trading Tribunal Act 1998]. These factors indicate that the Tribunal is exercising judicial power and is properly characterised as a court: see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR 361 at 374-375 per Kitto J: see also State Rail Authority v Consumer Claims Tribunal & Ors (1988) 14 NSWLR 473 at 478 per Hope JA (with whom Samuels and Clarke JJA agreed) finding that the Consumer Claims Tribunal is a court exercising judicial power.' 20 Another recent case that has touched on the issue of whether the Division is a 'court' within the meaning of a statute is O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 (appeal pending). A respondent to a summons to attend and give evidence objected to giving evidence on the basis that because of the office she held, Governor of New South Wales, she could not be compelled to give evidence. This principle (sovereign immunity) is contained in the Evidence Act 1995, s 15(1). 21 The Evidence Act applies to 'courts' as defined. The Governor submitted that the Tribunal was not a court as defined, but nonetheless it was required to apply the principle of sovereign immunity, as it formed part of the general law. The Tribunal upheld the objection on alternative bases. It rejected the submission that the Tribunal was not an Evidence Act court. In the alternative, the Tribunal accepted that under the common law it was bound by the principle of sovereign immunity. 22 As to the conclusion that the Tribunal was an Evidence Act court, the reasons did not address the definition of 'NSW Court' in the Act's Dictionary: '(a) the Supreme Court, or (b) any other court created by Parliament, (including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.' The conclusion on this point is, in my view, unpersuasive. The case is useful in that it illustrates how a statutory definition of 'court' may affect the conclusion to be drawn as to whether a particular body is a 'court'. The feature of provisions like s 39(2) of the Judiciary Act and TPA s 86(1) is that they do not contain a definition, leaving the question at large. 23 I turn now to the two New South Wales cases of most relevance. 24 Dao No 2: The applicants complained that they had been the subject of unlawful discrimination by their former employer, the Australian Postal Commission (a Commonwealth statutory body). They were of Vietnamese background. When the case reached the Equal Opportunity Tribunal, the Commission objected to the Tribunal's jurisdiction on various bases. One was that the Commission as a Commonwealth body was not bound by the State Anti-Discrimination legislation. The Tribunal dismissed the objection. The Court of Appeal in Australian Postal Commission v Dao (1985) 3 NSWLR 565 (Dao No 1) reversed the Tribunal, upholding the objection on the basis that federal employment was a matter that fell within the exclusive jurisdiction of the Federal Parliament, having regard to s 52(ii) of the Constitution. 25 Dao No 2 deals with an application by the complainants for a certificate under the Suitors Fund Act 1951 to indemnify them in respect of the costs of the appeal. The Suitors Fund Act provides 'Where an appeal against a decision of a court - (a) to the Supreme Court; … on a question of law succeeds, the Supreme Court may … grant an indemnity certificate in respect of the appeal' (s 6(1)). The question, therefore, was whether the Equal Opportunity Tribunal was a 'court'. The expression is not the subject of a statutory definition. The Court of Appeal held that the Tribunal was a court within the meaning of this provision. Kirby P said: 'the better view having regard to the nature and functions of the Tribunal is that it is a 'court' for the Suitors' Fund Act purposes' (at 514). His Honour, by these remarks, left open the possibility that a body could be a 'court' under one statutory scheme but not another. 26 In Dao No 1 the respondent had raised the question of whether the Tribunal was a s 39(2) court. In light of its ruling based on s 52(ii) of the Constitution the Court did not express a final view. This is the background to Kirby P's further comment at 514 that: 'Although the issue of whether, for constitutional purposes, the Tribunal is a 'court' was not considered in the judgments of Samuels JA and myself in the principal appeal, it should be noted that McHugh JA in his judgment was prepared to assume that the Tribunal was a 'court' by the standards of that more stringent criterion: see (1985) 3 NSWLR 565 at 604'. 27 McHugh JA's judgment is the most emphatic as to the desirability of taking a flexible view as to the meaning of the expression 'court' when used in statutes and left undefined. He said that the question of whether a tribunal is a 'court': 'has to be determined in the context and with regard to the purpose of the [relevant] Act' (at 515). He continued at 515: 'There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a 'court' even though it is not called a court and has lay members. Function and purpose, not labels, should be our guides.' 28 Fuentes: The issue arose as to whether the Workers Compensation Commission of New South Wales (WCC) is a s 39(2) court. The Court of Appeal held that the WCC was not a 'court'. The analytical approach taken by the reasons for decision (Court's judgment delivered by Ipp JA) was simply to ask whether the WCC satisfied, to a sufficient degree, the usual characteristics of a 'court'. The reasons did not make a distinction, as the Attorney's submissions do, and as perhaps Kirby P's dicta in Dao No 2 suggest, between a court for one purpose but not for another purpose. 29 Ipp JA referred to HCF, and noted: '38 In The Commonwealth of Australia v The Hospital Contribution Fund (1982) 150 CLR 49 it was held that a "court of a State" in s77(iii) of the Constitution and "courts of a State" in s 39(2) of the Judiciary Act mean courts as institutions and not the persons of which they are composed. All relevant factors have to be considered in determining whether a particular institution is a court. Amongst such factors are the persons of which the institution is composed, as they form part of the institution. 39 Undoubtedly, the Commission does exercise judicial powers, but this does not necessarily make it a court. There are many institutions that exercise judicial powers but are well recognised not to be courts.' 30 Ipp JA acknowledged that the WCC did possess some characteristics typical of a 'court': for example, the requirement that the President of the Commission is a judge; the requirement that the Deputy President is either a judge or a legal practitioner; the power to compel persons to attend hearings; and the power to require persons to give evidence on oath. His Honour felt that the following factors militated against the conclusion that the WCC was a 'court': '42 By s 368(1) of the 1998 Act, the Commission consists of a President, two Deputy Presidents, a Registrar and Arbitrators. The Arbitrators are appointed by the President. The idea that members of a court can be appointed by the president of the court is foreign to the notion of a court, at least as far as this country is concerned. 43 A person eligible to be appointed as the Registrar or as an Arbitrator must either be a legal practitioner or have "such qualifications, skills or experience as may be determined by the Minister". Thus the Registrar and the Arbitrators do not have to be legally qualified. It is not customary for members of a court not to be legally qualified. 44 By s 371, the Registrar of the Commission has and may exercise all the functions of an arbitrator. By s 371(2), the Registrar can delegate to any member of the staff of the Commission any of the Registrar's functions (except the power of delegation). It is not the characteristic of a court that its registrar is empowered to exercise the functions of a member of the court or that a registrar can delegate to any member of the staff of the court the functions of a member of the court. 45 By s 372, "Arbitrators are, in the exercise of their functions, subject to the general control and direction of the Registrar". This subordinate position of the Arbitrators does not sit comfortably with the Arbitrators being members of a court. 46 Section 355(1) requires an Arbitrator not to determine a dispute without attempting to mediate a settlement between the parties. Conciliation is a major part of the duties of Arbitrators; ordinarily, that would be an unusual feature of a judicial officer's work. 47 Section 355(2) provides that no objection may be taken to an Arbitrator determining a dispute on the ground that the Arbitrator had previously attempted to mediate a settlement. Such a provision is not usually applicable to a judicial officer. 48 Members of the Commission do not have security of tenure. Arbitrators may be removed from office at any time by the President while the President may be removed by the Minister for incapacity, incompetence or misbehaviour (Sch 5, cl 6 of the Act). Members do not have to take a judicial oath (Sch 5, cl 12 of the Act). The Commission does not have rule making power. Rules are made by the Minister (s 364). All these provisions militate against the Commission being a court. 49 By s 354(1), the proceedings before the Commission are to be conducted with as little formality as reasonably possible. By s 354(2), the Commission is not bound by the rules of evidence. While it is not unknown for like provisions to apply to a court, they are unusual features of a court's procedures. 50 Section 354(4) draws a distinction between a "formal hearing" and other proceedings that may be conducted by way of a conference between the parties. By s 354(6), the Commission may exercise functions under the Act without holding any conference or formal hearing. This level of informality is another unusual feature. 51 Section 293(1) permits the Registrar to refer medical disputes before the Commission for medical assessments. Section 293(2) provides that if a dispute concerns the degree of permanent impairment the Registrar must refer that aspect of the dispute for medical assessment. Section 320 empowers the President of the Commission to appoint medical practitioners to be "approved medical specialists". Section 321 provides for the appointment of an approved medical specialist to assess a medical dispute. By s 325, the approved medical specialist to whom a medical dispute is referred is to provide a medical assessment certificate as to the matters referred for assessment. By s 326(1), a medical assessment certificate is conclusively presumed to be correct as to several stipulated matters. By s 327, a party to a medical dispute may appeal against a medical assessment in regard to matters that are conclusively presumed to be correct, but only on certain stipulated grounds. By s 328(1), an appeal against a medical assessment is to be heard by an appeal panel constituted by two approved medical specialists and one arbitrator. The entire procedure involving medical disputes, both at first instance and on appeal, is inconsistent with the Commission being a court. It is necessary only to emphasise the part played by medical specialists under this system. The medical specialists are given far-reaching decision-making powers of a fundamentally judicial nature. These provisions are significantly inconsistent with the Commission being a court. 52 While the Commission has some of the powers and trappings of a court, the cumulative effect of the matters that indicate that it is not a court is extremely powerful. In my opinion, these matters compel the conclusion that the Commission is not a court. 50 Section 354(4) draws a distinction between a "formal hearing" and other proceedings that may be conducted by way of a conference between the parties. By s 354(6), the Commission may exercise functions under the Act without holding any conference or formal hearing. This level of informality is another unusual feature.' 31 It will be seen that a 'balance sheet' approach was taken comparing conventional attributes of a court in the Australian system (judges with tenure, the taking of the judicial oath, protections against removal from office, formality of procedures, method of determining matters, application of rules of evidence, rule-making power, lack of involvement of the Minister in the institution's operation) with elements in the structure that deviated from the conventional attributes, many of which were plainly of a non-judicial character and did not connote the level of independence expected of a court. 32 The Attorney also referred to the High Court case, Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410. Section 64 of the Judiciary Act ('In any suit to which the Commonwealth or a State is a party, the rights of the parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject') applies to courts exercising federal jurisdiction. That provision was applicable to the Tribunal if it was a court exercising federal jurisdiction. The answer to this question proved not to be critical to the outcome of the case. The Attorney submits: 'McHugh, Gummow and Kirby JJ considered that the NSW Residential Tenancies Tribunal was not a court for the purpose of s 64 of the Judiciary Act and Dawson, Toohey and Gaudron JJ very much doubted that it could so be described (at 460, 474, 511 and 448.)' 33 McHugh J's reasons for deciding that the Tribunal was not a court are as follows (at 460-61; footnotes omitted): 'The [Defence Housing] Authority is plainly "the Commonwealth" within the meaning of s 64. However, the proceeding in the Tribunal is not a suit in a court. For the purpose of the present proceedings, the Tribunal is a quasi-legislative body. It makes, not declares rules. It has no power to finally declare the rights of the parties for the purpose of the proceedings. Instead, it is being asked to make orders, breaches of which give rise to offences against the Act. Those offences are prosecuted in the Local Court, or, with the consent of the Minister, in the Supreme Court of New South Wales in its summary jurisdiction (s 124(2), (3) of the Act).' 34 Gummow J said at 474-75 (footnotes omitted): 'The proceeding in the Tribunal which gives rise to the present litigation is not one before a State court which is exercising federal jurisdiction with which it has been invested pursuant to s 77(iii) of the Constitution and s 39(2) of the Judiciary Act. Rather, as was conceded, and indeed asserted, by Mr Henderson, the Tribunal is an administrative body. The "orders" which it makes under provisions such as s 24(4) and s 29(5) of the Tenancies Act are attended by the penalties provided by a combination of ss 115 and 125(1). Proceedings for these offences are dealt with not by the Tribunal but by a Local Court constituted by a magistrate sitting alone, or, with the consent of the Minister, by the Supreme Court of New South Wales in its summary jurisdiction (s 124(3)).' 35 Kirby J said simply at 511 that the Tribunal 'is not a "court"' while Dawson, Toohey and Gaudron JJ doubted at 448 'whether proceedings before the tribunal are judicial proceedings rather than proceedings of an administrative tribunal so that they might be said to constitute a suit within the meaning of s 64.' 36 As noted, this issue was peripheral to the case. 37 The non-judicial powers of the Residential Tenancies Tribunal to which McHugh J pointed to are not powers shared by this Tribunal or the Equal Opportunity Division, namely, the capacity to make rather than declare legal rules and its lack of power to finally declare parties' rights. It is also significant that one of the parties had conceded that the Residential Tenancies Tribunal was an administrative body so that, presumably, the question was not fully argued before the Court. The observations in Re Residential Tenancies do show the same concern that was reflected in Fuentes: the presence in the body of significant attributes of an administrative or non-judicial character. 38 The authorities, to which I have referred, do no more, in my view, than emphasise that the question whether a body is a court is to be determined according to the purposes of the relevant statute or, where the question involves the common law, according to 'the purposes for which the categorisation is made' (Muirhead at 185 per Kirby P). 39 In my view the Equal Opportunity Division is a 'court' in the general sense of that term. 40 Although it has lay members, the function of the Equal Opportunity Division is to determine disputes between parties (Dao No 2). The decisions of the Tribunal in its equal opportunity jurisdiction are final and binding upon the parties and it is obliged to resolve disputes 'in accordance with the general law and on the basis of the evidence put before it, and to keep a record of the issues in dispute and its decision on those issues' (State Rail Authority; see also Woodcrest Homes). 41 It is the case that it is not strictly bound by the rules of evidence and that it has some informal procedures, but these are not determinative factors (State Rail Authority). It is to be noted that the Federal Magistrates Court is also enjoined to 'proceed without undue formality' (Federal Magistrates Act 1999 (Cth), s 42; see also s 3(2)(a)). In any event, it is clear that decisions of the Tribunal must be rational and logically probative. The Tribunal's functions in the exercise of its retail leases jurisdiction (in which is has been held to be a court) are not materially different from those in its equal opportunity jurisdiction; in both cases, the Tribunal determines disputes between parties and makes final, binding orders (Trust Company). The Tribunal's inability to enforce its own orders does not preclude it from exercising judicial power (see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245). 42 Its members comprise judicial and non-judicial members. It sits and hears cases in a formal way. The ADT Act carefully divides the responsibilities of members, with judicial members being responsible for determination of questions of law: s 78(2). The members all take oaths. The term of office of their appointment is quite short (three years: Schedule 3, cl 2), in contrast to the position of judges. A member may only be removed from office for cause, and the grounds are limited: Schedule 3, cl 8. The Divisional Head is appointed by the Governor: s 16(1) and the appointment may be held by the holder of a judicial office. The present Head is a Magistrate, and many previous Heads have been Judges of the District Court. The institutional arrangements as they relate to members do not allow for Ministerial interventions of the kind permitted under the WCC legislation. Members take oaths of office: Schedule 3, cl 3. The decisions of the Division are subject to appeal, including appeal to the Supreme Court: Chapter 7. 43 The key factors which tipped the balance against the WCC are not, in my view, present in this case (the significant administrative and non-judicial attributes). 44 I did not understand the Attorney to reject the proposition that the Equal Opportunity Division (and in turn the Appeal Panel sitting on appeals from that Division) was a 'court', using that term as one which describes a legal institution with the characteristics mentioned. The objection is that the Equal Opportunity Division (and the Appeal Panel sitting on appeals from the Equal Opportunity Division) is not a s 39(2) court. 45 There is a suggestion running through some of the cases, as previously noted, that it may be one thing to regard a body as a 'court' where this conclusion is relevant to relatively minor, or narrow, matters and another to regard it as a 'court' where the matters to which the decision relate are ones of complexity or gravity. I have mentioned Kirby P's comment in Dao No 2. As the Attorney pointed out, Kirby P made a similar comment in NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at 185 that 'a decision that a body is a 'court' for the beneficial provisions of the Suitors' Fund Act 1951, may not necessarily determine whether that body is a 'court' to attract the very great power which accompanies the application of contempt law: cf Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 513 and the cases there cited.' 46 There may be some reserve over whether specialist adjudicative bodies should be accorded standing as a 'court' for the purposes of s 39(2). They are not bodies of relatively general jurisdiction as is the case, for example, with the Local Court, the District Court or the Supreme Court. On the other hand there is nothing in my view in the reasoning in Fuentes to suggest that the Court of Appeal was concerned in that way. It makes no reference to that consideration in its check-list of the positive and negative features of the WCC. 47 Nor did Murphy J in HCF see any such difficulty. His Honour said at 65 (emphasis added): The Constitution, in vesting, or providing for the investing of, jurisdiction in courts, should not be taken as allowing the exercise of the jurisdiction only by those who, in the strictest sense, constitute the court, such as justices of the High Court and other federal courts; it should be taken as permitting the exercise by officers who are under the supervision of those who constitute the court. The necessity for avoiding any narrow approach to these provisions is evident from the fact that the courts of the State which may be vested with federal jurisdiction under s. 77(iii) include not only the Supreme Courts (as Barwick C.J. seemed to think in Kotsis v. Kotsis) but also numerous courts having a variety of limited jurisdictions constituted with a variety of memberships . Some have members who are not lawyers, some have persons exercising jurisdiction who are not strictly members of the court. In investing any court of a State with federal jurisdiction (under the Constitution, s. 77(iii)) Parliament can authorize the exercise of that jurisdiction by a person who is not strictly a member of the court, provided that the person is under the real supervision and control of the court (as by review or appeals to a judge). Traditionally, officers such as prothonotaries and registrars have exercised judicial power in taking of accounts, inquiries into or assessments of damages, and other interlocutory or preliminary matters. If Parliament has not stated otherwise, investment of any State court with federal jurisdiction should be taken as investment of the court as it is organized from time to time under State law, so that not only its members, but its officers and other persons under its supervision and control may exercise federal jurisdiction in the same way as they would State jurisdiction. 48 To similar effect McHugh JA said recently in Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 (Fardon) at 64: 'The content of a state's legal system and the structure, organisation and jurisdiction of its courts are matters for each state. If a state legislates for a tribunal of accountants to hear and determine "white collar" crimes or for a tribunal of psychiatrists to hear and determine cases involving mental health issues, nothing in Ch III of the Constitution prevents the state from doing so. Likewise, nothing in Ch III prevents a state, if it wishes, from implementing an inquisitorial, rather than an adversarial, system of justice for state courts.' 49 In my view the Equal Opportunity Division (and the Appeal Panel on appeal) is a 'court' in the Judiciary Act sense. If it is required that a Judiciary Act 'court' have a degree of standing and ability which is beyond that required of a court in the general sense, in my view the Division has those qualities. 50 The Division is the exclusive jurisdiction in New South Wales for the determination of complaints of unlawful discrimination. Its importance in the legal institutional framework of New South Wales should not be understated. It deals with a type of complaint commonly seen as involving the protection of fundamental human rights. The Parliament could have, but did not, choose to vest the jurisdiction in the traditional courts. It established a specialist jurisdiction, with special procedures and a special bench. Had the Parliament gone the other route, this present issue would not arise. 51 Returning to Dao No 2, it may be that a more generous approach should be taken when seeking to apply beneficial legislation such as the suitors' fund legislation than might be appropriate when asking whether a body should be treated as a court for the purpose of ruling on questions going to the application of the Commonwealth Constitution. Had the Court of Appeal taken a narrow view of the operation of the suitors' fund scheme, the two recently migrant, casually employed Vietnamese postal workers would have been left with a costs order because the Tribunal got the law wrong. But questions of Commonwealth constitutional law can themselves arise in settings that may have some of the features of personal distress of the example given. 52 There is no question that the Local Courts of Australia can dispose of Commonwealth constitutional questions. In my view, the Equal Opportunity jurisdictions of Australia at least sit at an equal level in the adjudicative hierarchy of the country. Probably, they are more to be aligned with the District Court tier, as is seen, for example, clearly in South Australia (these cases are dealt with by a division of that State's District Court). Reflecting this view, for almost its entire history as a separate Tribunal, the New South Wales jurisdiction was headed by a District Court judge, and either a District Court judge or a Magistrate has headed the Division since its reorganisation as a Division of the Administrative Decisions Tribunal. 53 It would, in my view, be a strange result if modern adjudicative institutions like the Equal Opportunity Division were not seen to be 'courts' within the meaning of the Judiciary Act. 54 So far, I have proceeded on the basis that the Equal Opportunity jurisdiction of the Tribunal can be separated from the Tribunal's other jurisdictions. 55 Another of the Attorney's submissions is that the question is not whether the Equal Opportunity Division satisfies the general characteristics of a court, but whether the Administrative Decisions Tribunal as a whole can be said to be a 'court'. The Attorney draws attention to those functions of the Tribunal that involve the review of reviewable decisions made by government administrators. 56 The Attorney submitted that 'the fact that the Tribunal has an administrative review function means that it has been invested with powers that are incompatible with the exercise of federal jurisdiction'. 57 This Tribunal has jurisdictions of an administrative review character which, under federal law, are clearly non-judicial. In its equal opportunity jurisdiction, the Tribunal's functions are almost exclusively judicial (using the Commonwealth approach). Unlike comparable State tribunals, the Tribunal does not have a function of granting exemptions from the Anti-Discrimination Act (cf. Anti-Discrimination Act 1991 (Qld), s 113; Equal Opportunity Act 1995 (Vic), s 83; Equal Opportunity Act 1994 (WA), s 135). The main function of the Tribunal which could be described as non-judicial is the power to amend a complaint (ADA, s 103). 58 The Commonwealth Constitution prevents the Commonwealth Parliament from mixing in the one body judicial and non-judicial power; and prevents conferral of judicial power on a non-judicial body. Accordingly there is a strict separation in Commonwealth institutional arrangements between determinative bodies that exercise judicial power and determinative bodies that exercise non-judicial power. Therefore, cases under the federal anti-discrimination legislation in which complainants seek final adjudication and final orders are dealt with by federal courts; while cases where citizens are complaining about the merits of the decision of an executive agency of the government (say the Customs Service) or a Minister (say the Minister for Health) and seek administrative review are dealt with, most typically, by the Administrative Appeals Tribunal, which is seen as forming part of the executive as distinct from the judicial branch of government. Using this dichotomy it is clear that in this Tribunal there is an admixture of 'judicial' and 'non-judicial' power. It is therefore said that the Tribunal, as a whole, is not a 'court' within the meaning of s 39(2) of the Judiciary Act. 59 If it is necessary to reach a conclusion on the question of whether the Tribunal as a whole satisfies the ordinary characteristics of a 'court', in my view it does. The Commonwealth jurisprudence on the 'judicial power' does not form part of the constitutional law of the States. The States may well have determinative bodies which do not strictly adhere to the precepts of the Commonwealth Constitution but which nonetheless can properly be characterised as 'courts'. 60 The High Court has repeatedly indicated that the word 'court' in s 39 does not mean a court constituted in accordance with Chapter III of the Constitution, but rather that the Commonwealth must take the State courts as it finds them. (For the origin of this influential phrase, see Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313 per Griffith CJ and the comment by Gaudron J on the extension of its significance in Kable v DPP (NSW) (1996) 189 CLR 51 at 102.) 61 This means that, if a body fulfils the criteria of a court for the purposes of determining State law, then it is a 'court' within the meaning of s 39(2). Once federal jurisdiction has been validly conferred under s 39(2), this includes the power to determine constitutional questions. It is not the case that a body can be a court under s 39(2) for the purpose of exercising some forms of federal jurisdiction and not others. The safeguard against lower level courts making errors in constitutional matters is, of course, provided through the normal avenues of appeal to the higher courts. 62 In HCF, for example, the High Court held that a non-judicial officer of a state court, in whom powers of the court had been invested by state law, could exercise federal jurisdiction. Gibbs CJ, with whom Stephen and Aickin JJ agreed, held that 'State law must determine the organization through which the powers and jurisdiction of the State courts are exercised' (at 58) and added that 's 39(2) of the Judiciary Act contains nothing to suggest that it was intended that the invested federal jurisdiction should be exercised only by judges' (at 59). Mason J said at 63: 'The majority interpretation [in Kotsis ] carries over into s. 77 [of the Constitution] the notion, derived from ss. 71 and 72, that the exercise of Commonwealth judicial power must be reposed in judges. Yet ss. 71 and 72 deal with the composition of this Court and the appointment and removal of justices of this Court and judges of other federal courts only.' 63 I have already noted Murphy J's broader statements at 65, with which I agree. Wilson J held that the invested federal jurisdiction was 'to be exercised in the same manner as the state jurisdiction of the court' (at 71). Brennan J dissented on the question of whether non-judicial officers of a State court could exercise federal jurisdiction generally, but agreed with the majority result. 64 The decision in HCF, then, indicates that it is not critical that federal jurisdiction is exercised by judicial officers, so long as it is exercised by a State court. It also demonstrates an acceptance that words 'court of the States' in the Judiciary Act refer to the courts as they are organized by the States in question, and that they are not to be understood in accordance with the characteristics of federal courts. For these reasons, the case-law lends support to the proposition that, when functioning as a court under the Anti-Discrimination Act, the Tribunal can exercise federal jurisdiction. 65 The parties also referred to Kable v DPP (NSW) (1996) 189 CLR 51, which established: 'the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid' ( Fardon at 56, per Gleeson CJ). 66 In that instance the High Court saw as incompatible with the function of a court legislation in New South Wales which required the Supreme Court to make preventive detention orders in respect of a specified person (Mr Kable), even though that person had not been convicted of a criminal offence. In reaching that conclusion it accepted that a non-judicial power (as this was) could be exercised by a State court and that of itself did not offend the Constitution of the Commonwealth. But in the case the Supreme Court had been called on to consider Commonwealth constitutional questions, and was therefore exercising vested federal jurisdiction. Gaudron J said at 106: some functions which are not essentially judicial in character are, nonetheless, properly characterised as judicial if conferred on a court. Chapter III permits the conferral of such functions on courts. And, of course, there is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non-judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth. 67 Her Honour concluded that the power of arbitrary punishment given to the Supreme Court in this case was 'not a power that is properly characterised as a judicial function' and that it had 'the effect of compromising the integrity of the judicial system brought into existence by Ch III of the Constitution' (at 107). McHugh J held at 117 that: While nothing in Ch III prevents a State from conferring non-judicial functions on a State Supreme Court in respect of non-federal matters, those non-judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State. 68 He held at 121 that 'the Act and its procedures compromise the institutional impartiality of the Supreme Court'. The other member of the majority, Gummow J, also referred to the 'institutional impairment of the judicial power of the Commonwealth' (at 143). 69 The question whether a State has power to confer non-judicial power on a court exercising federal jurisdiction was squarely raised in Taudevin v Egis Consulting Australia Pty Ltd (No 1) [2001] NSWIRComm 340; 131 IR 124. That issue was whether the NSW Parliament could validly confer on the NSW Industrial Relations Commission a non-judicial power, in circumstances where the Commission was exercising federal jurisdiction. The Full Bench of the Court (Wright, Walton and Hungerford JJ) held that it could. 70 Rejecting the Commonwealth's argument that, when exercising federal jurisdiction, State courts are bound by the requirements of Chapter III of the Constitution, the Court referred to High Court judgments in Kable v DPP (NSW) (1996) 189 CLR 51 in support of the opposite proposition. It concluded that 'State courts exercising federal jurisdiction may well be courts which also exercise non-judicial power' (at [149]; 176). 'As it will be seen from the judgments of the majority, they were not challenging the proposition that a State court exercising federal jurisdiction can also exercise non-judicial powers. Rather, the majority held that there were limits to the powers which could validly be conferred on State courts exercising federal jurisdiction, and that these limits were breached when the court's institutional integrity came into question.' 71 The import of the Kable doctrine was recently considered by the High Court in Fardon. McHugh JA said at 62-63: 'Chapter III of the Constitution, which provides for the exercise of federal judicial power, invalidates state legislation that purports to invest jurisdiction and powers in state courts only in very limited circumstances. … Another is the circumstance dealt with in Kable [ Kable v DPP (NSW) (1996) 189 CLR 51]: legislation that purports to confer jurisdiction on state courts but compromises the institutional integrity of state courts and affects their capacity to exercise federal jurisdiction invested under Ch III impartially and competently. Subject to that proviso, when the Federal Parliament invests state courts with federal jurisdiction, it must take them as it finds them.' 72 The Court of Appeal recently followed Fardon in Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345. Spigelman CJ, with whom Mason P and Handley JA agreed, held at [48] that 'A conclusion that [the] institutional integrity [of a State court] has been impaired requires incompatibility of a fundamental character.' See also the Appeal Panel decision, Trust Company. 73 The Attorney made no submission in my view that could reasonably be characterised as a submission that the Tribunal or the Equal Opportunity Division was affected in the performance of its functions by 'fundamental incompatibility' in the Kable sense. 74 While I do consider that the Tribunal as a whole is a State court invested with federal jurisdiction, my preferred approach is to deal with the issue, when it arises in the context of the modern multi-jurisdictional tribunal, by reference to the particular jurisdiction or Division under notice. 75 It is a commonplace of modern State government arrangements in Australia to house in the one Tribunal structure a mixture of jurisdictions, some of which might be said to belong to the 'judicial' branch of government as that concept has been developed in federal constitutional law, and some of which might be said to belong to the 'non-judicial' branch of government as that concept has been developed in federal constitutional law. This Tribunal is a modest example of that trend. The Victorian Civil and Administrative Tribunal and the Western Australian State Administrative Tribunal are more conspicuous examples. In both instances almost all tribunal functions in the State have been brought together in the one 'super'-tribunal structure. 76 In each of these instances, the governing legislation carefully delineates how the different principal jurisdictions are to be exercised, often with different rules as to procedure and for composition of benches. The specialist character of the different jurisdictions is sought to be maintained. Power of Bodies that are not Judiciary Act Courts to deal with Constitutional Questions 77 I now turn to the appellants' broader submission. The appellants argue that the responsibility to determine constitutional questions is a natural part of the task of any body called upon to determine matters according to law. The 'law' involves the whole of the law. Constitutional questions can not be compartmentalised into a 'no go' zone. They form part of the fabric of the law. 78 The appellants agree with the Attorney that such a determination coming from an administrative body would not be definitive or final. Further, the appellants argue that the constitutional question in these proceedings does go to the Tribunal's jurisdiction, since its power to make orders when it finds that a complaint is substantiated depends on the validity of s 49ZT of the Anti-Discrimination Act. 79 The Attorney and the appellants both referred to Re Adams and Tax Agents Board (1976) 12 ALR 239. It was accepted in that case that the Administrative Appeals Tribunal (the review body) and the Tax Agents Board (the primary decision-maker, which had cancelled the applicant's registration as a tax agent) were manifestations of the non-judicial power of the Commonwealth. Brennan J referred to the question of the extent of the authority of such a body to deal with a constitutional question, then observed at 241.21 that: 'A definitive answer to a question of constitutional validity requires the exercise of that judicial power [i.e. the judicial power of the Commonwealth], and can therefore be given only by a court in which that judicial power is vested.' 80 His Honour continued: 'It follows that neither the [Administrative Appeals] Tribunal nor the [Tax Agents] Board can give a definitive answer to the question of constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. It is incapable of adding to or subtracting from any authority, or purported authority, conferred by the challenged statute. It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative body.' 81 The Attorney referred to Attorney General v Estcort and the Wilderness Society Inc (1995) 4 TasR 355 at 372, in support of the proposition that an administrative body has the power to consider the validity of a statute relevant to its own jurisdiction. However, the Attorney said that this was not such a situation. Relying on Re Pastoral Industry Award 1986 (No 2) (1988) 80 IR 163 at 168 and Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90, the Attorney submitted that the Tribunal had no power to make a decision on the basis that the Anti-Discrimination Act or any part of it was invalid. 82 I agree with the submissions of Mr Perram for the appellants that Brennan J's dicta read as a whole do not go so far as to suggest that a tribunal that is not a court can not consider a constitutional question (the proposition advanced by the Attorney) but only state that any conclusion reached by such a tribunal on such a question would not be definitive or final. 83 I agree with Mr Perram that the crucial distinction between these two capacities was emphasised by Brennan J at 242.5: 'An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its functions, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.' 84 As Mr Perram pointed out, Re Adams was considered by the High Court (Kirby J) in Re Boulton; ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; 73 ALJR 129. After noting Brennan J's view that an administrative body could form an opinion on constitutional questions arising in the exercise of its jurisdiction, Kirby J said (obiter) at IR 472 ([22]): 'In point of principle, it would seem to me, the Constitution being part of the law of the land, that if a constitutional challenge to the jurisdiction of a court or tribunal is available, it ought to be taken as soon as practicable and before that court and tribunal concerned. Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question. If it has no lawful jurisdiction it may not assume that it has and it ought not to pretend that it has.' 85 Kirby J's statement indicates acceptance of the principle that an administrative body can and should determine constitutional questions going to its jurisdiction, rather than waiting for the point to be dealt with on appeal. 86 The view expressed by Brennan J in Re Adams is consistent with the view he expressed in a very early AAT case, where he dealt the question of the competence of the Tribunal to entertain a challenge to the invalidity of a regulation based on ultra vires. It is no surprise therefore to find that Brennan J did not consider that there was any restraint on the ability of the AAT to examine a challenge to the legality of subordinate legislation, even though, clearly, it did not have invested in it the judicial power of the Commonwealth: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167; affirmed Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 (Fed Ct FC, Bowen CJ, Smithers J; Deane J dissenting on other grounds). 87 Brennan J said at 177-178: '… administrative action which exceeds the power conferred is not only ineffective in point of law, but it constitutes unacceptable administrative conduct. An administrator who does not have the power to take the administrative action he thinks appropriate, or who fails to observe the conditions which are essential to the valid exercise of his power, cannot act in excess of his powers and justify that course as administratively expedient … Part of the Tribunal's function in securing sound administration consists in confining the administrator to the powers conferred upon him and to the lawful mode of exercising those powers; and the effectiveness of the Tribunal's function would be grievously weakened if it were impotent to check excesses of power. … It seems absurd that immunity from review would be secured by proof that the decision-maker's exercise of power so far miscarried as not to be a valid exercise of the power at all.' 88 In Doyle v Commissioner of Police [1999] NSWADT 84 at [19]-[35] I reviewed at some length the federal case-law as it relates to the competence of administrative review tribunals to entertain challenges to the legality of subordinate instruments, an issue of significance for this Tribunal with its wide administrative review jurisdiction. I recounted the history to that time of the Federal discussion. 89 I noted at [25]-[26]: '25 In a journal article AAT Deputy President Hall noted in relation to the Federal Court proceedings that while Deane J had disagreed with the majority on one point the Court was unanimous as to the existence of some jurisdiction to inquire into underlying validity: "In many respects the most important aspect of Brian Lawlor was the unanimous view of the Federal Court that administrative decisions made in the "colourable exercise" of a power are reviewable before the AAT. … The Tribunal, and more importantly, the parties were thus spared the sterile and technical legal task of determining as a pre-condition to the exercise of the Tribunal's review jurisdiction, that the decision under review was lawfully made and was not, on some ground relevant to the supervisory jurisdiction of the courts, a nullity." (Hall, "Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal (1994) 22 Fed LR 15 at 41) 26 In light of Lawlor's case, the AAT has been prepared to inquire into such questions as conformity with the requirements of natural justice, want of jurisdiction and taking into account irrelevant considerations (see for example Re Reith and Minister of State for Aboriginal Affairs (1988) 14 ALD 430) as well as in relation to attempts to prevent administrative review (see for example Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72; and see the Tribunal Act, s 6(2) to (4)). Another example would be the need to prove the possession of valid delegation where the administrator's decision is made by a delegate.' 90 I noted at [27]: '27 But this preparedness [to entertain challenges to legality] on the part of the Commonwealth Administrative Appeals Tribunal is subject possibly to two exceptions. A merits review tribunal may not be competent to examine a question as to the constitutional validity of a statute: as to which compare dicta of Brennan J ( President) supporting competence in Re Adams and The Tax Agents Board (1976) 12 ALR 239; 1 ALD 251 with the contrary view of the commentary in Australian Administrative Law (Butterworths 1999) at [223] and Hall, cited above, at 43. Because of the nature of the Commonwealth Constitution such a question has a greater potential to arise in the setting of a Commonwealth tribunal than is the case in a State tribunal. The other possible exception relates to the question presently under consideration, the validity of subordinate legislation.' 91 I did not deal any further with the first of the two possible reservations (the one that has arisen in this case, challenges based on constitutional validity), but I did deal with the second. I noted that the AAT had entertained objections to validity of a subordinate instrument in clear cases. I referred to Re Castello and Secretary, Department of Transport (1979) 2 ALD 934 at 939; and Re Jonsson and Marine Council (No 2) (1990) 12 AAR 323. I concluded at [32]-[35] that it was open to the Tribunal sitting in its administrative review jurisdiction to entertain challenges to legality of a subordinate instrument: '32 Like the administrator making the primary decision, a review tribunal must satisfy itself that it is seized of a matter over which it has jurisdiction. In instances where the decision is made having regard to criteria contained in subordinate legislation, the tribunal would (like an administrator) ordinarily proceed on the basis that the subordinate legislation has been regularly made and is intra vires the governing statute. 33 I agree with the general view expressed in Re Castello that there would need to be "most compelling grounds" for treating subordinate legislation as invalid. Re Jonsson does, I consider, represent such a case, where the regulation, contrary to the governing statute, did not illuminate but instead sought to prevent the exercise of discretion by the primary decision-maker. 34 As noted by Hall, op cit at 46, the High Court's decision in Re Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 lends support to the view that there may be circumstances in which an administrative tribunal or inquiry should satisfy itself as to the validity of subordinate legislation before determining that it is bound by it. In that case the commissioner responsible for an aboriginal land claims inquiry had declined to examine the validity of a regulation. The governing legislation excluded "town" land from the scope of the inquiry. After the inquiry had begun the government made a planning regulation extending considerably the boundaries of the town of Darwin. The High Court held (5-1) that the commissioner had jurisdiction to entertain a claim that the relevant regulation was invalid because it was made for the ulterior purpose of removing a significant area of land from the reach of the land rights claim. 35 My conclusion is that this Tribunal should only proceed to examine closely the validity of subordinate legislation where a compelling case can be demonstrated by the applicant rather than one that is merely arguable. Re Jonsson and Re Toohey provide useful analogies in seeking to define that boundary. This Tribunal should not become the forum for the pursuit of objections that are merely arguable. These should be left to judicial review proceedings. (See generally, McMillan, "Merit Review and the AAT: A Concept Develops" in The AAT: Twenty Years Forward (AIAL, 1998) 32 at 35-41.)' 92 I have referred to these views of mine at some length because they represent an early and detailed exploration in this Tribunal of the kind of question this case presents as to the competence of the Tribunal whether sitting in one of its civil jurisdictions (such as retail leases, or equal opportunity) or in its merits review jurisdiction to entertain questions going to underlying legality. 93 Emphasising its role in exercising 'the functions of administrative review' (at 938), the Administrative Appeals Tribunal said in Re Castello at 939: 'Courts have traditionally exercised the power to declare delegated legislation invalid where, in the process of adjudicating upon private rights and duties, it becomes necessary to determine whether the maker of delegated legislation has exceeded his delegated authority (see Pearce on Delegated Legislation , p 92 para 216 and cf Wynes on Legislative Executive and Judicial Powers in Australia , 5th edn p 31). But this Tribunal can give no binding and authoritative decision on such a question (cf Huddart Parker Pty Ltd v Moorhead (1909) 8 CLR 330 at 357 per Griffith CJ). If it be the case that the Tribunal has the competence nevertheless, to form an opinion on the validity of the Air Navigation Orders, the formation of that opinion is (to adopt the language of the President in [ Re Adams and the Tax Agents Board (1976) 12 ALR] at 245) "merely a means which the administrative body may adopt in moulding its conduct to accord with the law ". Before this Tribunal, as an administrative body, could determine to mould its conduct by treating delegated legislation as invalid, there would, in our view, need to be the most compelling grounds to justify it in so doing. Indeed, in the unlikely event of such a case arising, the Tribunal would need to consider most carefully how it should proceed (cf Zimmax Trading Co Pty Ltd and Collector of Customs (1979) 2 ALD 120.) But this is not such a case. The submissions, as presented by the applicant, do not in our view raise any grounds of substance for calling into question the validity of the colour perception standard in Air Navigation Order 47.3. We have concluded, therefore, that there is no proper basis upon which we should consider those submissions further.' 94 Mr Perram produced detailed submissions, including extensive reference to the case law of Canada, the United States and other jurisdictions, on similar questions. 95 It will be seen that I accept his fundamental point. A body charged with upholding the law (especially a body which is constituted on an independent basis with an express charter to determine questions according to law) should not be deprived of the capacity to countenance any question of law that is raised before it. 96 It would be very odd, to paraphrase the comments of Brennan J in Re Lawlor and Re Adams, if a State tribunal of the present type which has the exclusive jurisdiction in this State to deal with complaints of non-compliance with anti-discrimination law should be prevented from considering a challenge by a respondent to the legality of the law which imposes the relevant liability; and, at least, forming an opinion on the question. Applying the Totality of the Law as a Fundamental Feature of our Legal System 97 Mr Perram's final submission builds from the 'supremacy' principle contained in Covering Clause 5 - 'all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth'. 98 Put simply, he argues that it is simply not open to any person, body, administrative agency, tribunal or court to treat itself other than bound by the Constitution; and that may mean, on occasions, that an administrative official (possibly) and a tribunal or court (certainly, whether or not it is formally invested with any federal jurisdiction) may have to consider questions of underlying legality of the statutes which affect its jurisdiction. 99 He refers to the authority that has been according to the 'covering clauses' contained in the Imperial statute by the High Court in interpreting the Constitution and looks to the jurisprudence of Canada and the United States. In HCF Aickin J observed at 66-67: 'There is one further consideration which I think should be mentioned. Covering cl. 5 of the Commonwealth of Australia Constitution Act (Imp.), 63 & 64 Vict. c. 12, provides that the laws made by the Parliament of the Commonwealth "shall be binding on the courts, judges, and people of every State". On the coming into force of the Constitution the only courts were those of the States and they administered the whole of the law within each State, including the laws made by the Parliament of the Commonwealth. It is plain enough that that Act took the State courts as it found them. The Constitution itself rests upon the assumption of an existing system of State courts in existence in 1901 but capable of being changed in structure and jurisdiction by the legislatures of the States. It does not seem to me that the "autochthonous expedient" (Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at p 268, per Dixon C.J., McTiernan, Fullagar and Kitto JJ.) of empowering the Parliament to confer federal jurisdiction on State courts under s. 77(iii) of the Constitution required the conclusion that only State courts organized in a particular manner could exercise federal jurisdiction so conferred. I can see no reason for the conclusion that the intention to be found in s. 77 in relation to the conferring of "federal jurisdiction" on courts of the States is significantly different from the intention of covering cl. 5 which made the laws passed by the Parliament binding upon the courts and judges of the States. Each provision is appropriate to the conferring of judicial power upon the State courts as they may be established and organized from time to time.' 100 Mr Perram notes in the Canadian jurisprudence that a distinction is routinely drawn between the obligation of an administrative tribunal to have regard to a constitutional objection to its jurisdiction, even though it does not have the power to make a declaration of constitutional invalidity (see for example, R v Ontario Labor Relations Board; ex p Dunn (1963) 39 DLR 2d 346 at 352 per McRuer CJHC; expressly approved by Estey J (with whom Ritchie, McIntyre and Lamer JJ agreed) in Northern Telecom Canada Ltd v Communication Workers of Canada [1983] 1 SCR 733 at 756; further endorsed in Cuddy Chicks Ltd v OLRB [1991] 2 SCR 5 at [10] and ff per La Forest J (with whom Lanier CJC, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ agreed). 101 In Cuddy Chicks the question involved whether objections based on human rights grounds, consequent on the passage of the Charter of Rights and Freedoms, could be entertained. At [11] La Forest J said, discussing another important Canadian case - Douglas/Kwantlen Faculty Assocn v Douglas College [1990] 3 SCR 570 - that that case stood for the proposition that 'an administrative tribunal which has been conferred the power to interpret the law holds a concomitant power to determine whether that law is constitutionally valid.' 102 La Forest J founded that proposition on 'the principle of supremacy of the Constitution'. 103 In this case Mr Perram submits, if there be any doubt, that Covering Clause 5 clearly applies in Australia the principle of supremacy of the Commonwealth Constitution: see further, Leeming, 'Courts, Tribunals & the Separation of Powers in Australia and Canada' (1997) 8 PLR 143. 104 Mr Perram's argument also draws strength from the same principle of supremacy as it has been elaborated in the United States, starting with the decision in Marbury v Madison (1803) 1 Cranch (5 US) 137 2 L Ed 60. 105 Mr Perram notes that, when it comes to the Judiciary Act's investiture of federal jurisdiction, the federal Family Court and the Magistrates Court (FMC) are not designated repositories (even though, arguably oddly, State local courts and State intermediate courts are). But, as Mr Perram submits, this does not mean that the Family Court and the FMC are without power to deal with questions of constitutionality. 106 I agree that the power to deal with questions of constitutionality derives from the fact that those questions are simply a species of questions of law, and the fundamental obligation of courts and tribunals is to uphold the law. Similar views were expressed (in obiter) by Kirby J in Re Boulton; ex p Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129, cited above. 107 I also agree with the approach taken by Morris J (President) in Buttigieg v Melton Shire Council (2004) 134 LGERA 328 (Victorian Civil and Administrative Tribunal) at 335: 'Even if the Tribunal [VCAT] did not have judicial power, it would, in common with other administrative bodies, need to ascertain whether it had jurisdiction before exercising its powers. There may be an issue as to whether or not, in this situation, the administrative body determines a legal question upon which its jurisdiction rests or whether it merely forms an opinion about it in order to decide whether to proceed or not. In the context of Federal constitutional law this is likely to be significant having regard to Chapter III of the Constitution …'. Conclusion 108 My conclusion is that the Tribunal must address any challenge to its jurisdiction, whatever the nature of the issue. Further, I consider that the Equal Opportunity Division is a 'court' within the meaning of the s 39(2) of the Judiciary Act. Orders Answers to Preliminary Question:

The Tribunal sitting as the Equal Opportunity Division (and as the Appeal Panel dealing with appeals from the Equal Opportunity Division) is a court for the purposes of s 39(2) of the Judiciary Act 1903. It is therefore competent to decide matters involving the interpretation of the Commonwealth Constitution.
Alternatively, the Tribunal is competent to consider any question of law relating to its jurisdiction.
Appeal to be re-listed for further directions.

Set aside by Appeal : Set aside by Appeal on 11/12/06: Attorney General v 2UE Sydney Pty Ltd & Ors

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