Separation of powers
89 The appellant submitted that an order under s 94(1) of the 2010 RTA and s 10AA of the FCCA Act involved an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution. It was submitted that the power received by the omnibus provisions of the FCCA Act was the administrative or executive power of the State Tribunal in respect of long residential tenancy leases treated by the 2010 RTA as freehold. The State Tribunal was not a court and, it was submitted, was incapable of being the recipient of powers conferred by Commonwealth statutes under s 77(iii) of the Constitution. In turn, it was submitted, the FCCA was a court and was incapable of being the recipient of the executive powers of the State Tribunal. In such a case the FCCA Act provisions, including the Instrument, were submitted to be invalid. The appellant submitted that the legislation being transported into the federal regime was a law which merely gave to the State Tribunal a discretion subject to conditions to terminate the long leases on a broad range of grounds ranging from the economic to the political, none with any legal content or involving the exercise of a mix of functions. The appellant, it was submitted, was entitled as of right by virtue of a fundamental incident of his subsisting leasehold tenure to remain in possession of the premises until a lawful termination order was made by an administrative not a legal tribunal. In that sense the leases were not terminable by law. The appellant submitted that no such administrative order was capable of being made by the FCCA.
90 The appellant also submitted that he had the right of quiet enjoyment conferred by Pt 3.3 of the 2010 RTA such that the tenancy could only be terminated by a discretionary order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant submitted that because the tenancy was not terminable by any contractual or other action outside the State Tribunal, such as notice of the lessor or abandonment or frustration of the leasehold tenure, his tenure and cognate right of possession was a statutory lease subject to termination by the State Tribunal with "a strong affinity" with freehold tenure: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 421-422 [19].
91 The appellant submitted that at the time of the commencement of proceedings or any time prior to their commencement he had not been and was not in breach of any contractual term, nor of any statutory term applied by the 2010 RTA, which would confer a right of re-entry to his land. Even if the legal standard did apply to the question of the termination of his tenure, no evidence had been adduced to support such a legally endorsed outcome in the FCCA or elsewhere. Rather, the Commonwealth's case was founded solely upon the administrative powers vested in the FCCA by the Instrument which, the appellant submitted, were legally insufficient to authorise the exercise of any power of termination, or dispossession, or execution of a termination order as described in s 81 of the 2010 RTA. The appellant submitted that no right of re-entry at common law had arisen in respect of his property; rather such right was contingent upon an order being made under Pt 6 of the 2010 RTA.
92 The appellant also submitted that the findings as to competing needs of the lessee's and lessor's interests and what was "appropriate" was a determination which was clearly not of a legal character, which was the very reason that the State Tribunal was established and given exclusive jurisdiction in New South Wales with respect to termination of residential tenancies.
93 The appellant submitted that the primary judge erred at [71] in Rigney in relying on the consideration that the orders he was to make were "immediately enforceable by the Court." The appellant submitted, a termination order as defined in Pt 5 of the 2010 RTA was not immediately enforceable because, until an order under Pt 6 of that Act was made, a "person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless … the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court … ": see s 120 of the 2010 RTA. In short, the appellant submitted, a termination order terminated the tenure relationship under the general law of New South Wales, but not more. A separate regime of enforcement with respect to obtaining possession and removing of chattels after a termination order was made was provided for by Pt 6 of the 2010 RTA. Accordingly, none of the orders sought or made was "immediately enforceable" in the present form by the FCCA.
94 The appellant submitted that the carve-out of the State Tribunal's power in relation to the present matters and its conferral by way of an omnibus provision upon the FCCA was a carve-out of both the administrative and quasi-judicial power of New South Wales. Further, the Commonwealth must take New South Wales tenancy law as it finds it. After referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson) the appellant submitted that "no different result should follow now" and the State Tribunal remained the appropriate venue for the claims made by the Commonwealth in the FCCA.
95 The appellant submitted it was not in dispute that, but for the amendments made to the FCCA Act in March 2015, residential tenancy agreements made in New South Wales might only be terminated by an order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant referred to ss 81(1) and 119 of the 2010 RTA, the former providing that a residential tenancy agreement terminated only in the circumstances set out in that Act and the latter providing that a landlord must not commence proceedings against a tenant in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. The appellant submitted that s 81 precluded the making of orders for termination and possession by any court and the same applied to the FCCA.
96 The respondent submitted, with reference to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 267 (Brandy), that "there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not".
97 The respondent submitted that in determining a Commonwealth tenancy dispute, s 9 of the Instrument conferred on the FCCA any powers that were powers of the State Tribunal under the 2010 RTA as the applicable law, subject to those powers being relevant to determining the dispute and to the qualifications in s 5(3) of the Instrument. The Instrument did not apply any of the provisions of the Civil and Administrative Tribunal Act 2013 (NSW), which constituted the State Tribunal and prescribed its jurisdiction and procedures, to proceedings in the FCCA. The provisions of the FCCA Act governed the procedure to be applied.
98 The respondent submitted that the fact that the Commonwealth Parliament was picking up, for application in a Ch III court, legislation that would be administered at the state level by an administrative tribunal (which may exercise judicial power) was without constitutional difficulty provided that the conferral did not involve the Ch III court exercising non-judicial power. The respondent submitted that s 5(3) of the Instrument was significant in that context.
99 The respondent relied on the four features of s 10AA of the FCCA Act and the Instrument which had been relied on by the primary judge.
100 The first feature was that the exercise of the discretion conferred by s 8(2) of the Instrument, which modified the operation of s 94 of the 2010 RTA, guided by the scope, object and purpose of the 2010 RTA was a familiar, if not daily, part of any court's work. Given that the Instrument conferred on the FCCA powers by reference to the 2010 RTA, subject to s 8, the conclusion of the primary judge that the exercise of the discretion should be guided by the scope, object and purpose of the 2010 RTA was entirely orthodox and without error.
101 The second feature was that the power conferred was not "simply one that arises on the basis of some idiosyncratic notions of individual judges". The primary judge noted that "as with any broad power with which a court is invested … guiding principles will emerge". The respondent submitted that the development of principles was consistent with the judicial method, citing Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at 351. Reliance on what occurs in the State Tribunal was not determinative of the nature of the power being exercised, the proper characterisation of a power being contingent, inter alia, on the "nature of the body dealing with it": HA Bacharach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 at 562.
102 The third feature was that the determination by the FCCA would set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. The respondent submitted that the application of a broad criterion by reference to the circumstances of a particular case, whether imposed by the general law or pursuant to statute, was not an unusual feature in the exercise of judicial power: Thomas v Mowbray at 345-347. Section 94 of the 2010 RTA required the FCCA to evaluate the nature of a tenant's occupation of premises and whether it amounted to possession; the period of time for which the tenant had been in continual possession of the premises; whether the term of the original fixed term agreement had expired; and, whether it, the court, was satisfied that it was appropriate to make a termination order in the circumstances of the case.
103 The fourth feature was the enforceability of the FCCA's orders. The respondent submitted that if the FCCA made an order terminating a residential tenancy agreement under the 2010 RTA, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect: s 83(1). As the appellant accepted, the court's orders had the immediate effect of terminating the contractual relationship, without which the tenant was no longer lawfully in possession and should vacate in accordance with the order for possession. In the event of non-compliance with that order, a warrant may be obtained on the authority of the order for possession: s 121(1). (We note that by s 8 of the Instrument a reference to the Principal Registrar of the State Tribunal is a reference to a Registrar of the FCCA.) The respondent submitted that the process of obtaining the warrant did not involve any traversing of the circumstances in which the FCCA's order was made, or whether it was valid: providing the Registrar was satisfied that the order had not been complied with, the warrant would issue. By force of the FCCA's orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable. The enforceability of decisions was, as the primary judge properly saw, significant and "one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal": Brandy at 268.
104 In reply, the appellant submitted that the respondent's argument should be rejected as it failed to articulate any clear answer to the case that the exercise of power by the FCCA was non-judicial in character. Having regard to the character of the State Tribunal, whose powers were picked up and conferred on the FCCA, and the nature of the decision under the applicable law adopted under s 10AA(3)(b) and (c) which was administrative in character creating rights as from the date of the hearing rather than deciding rights as at the date of the commencement of proceedings, the exercise of power by the FCCA should have been characterised by the primary judge as non-judicial and both the Instrument and the amendments to the FCCA Act authorising its use should have been held to be invalid.
105 The appellant submitted that his tenancy under the State Tribunal and the 2010 RTA was subject to a discretionary regime that had regard to economic and political considerations with respect to the length and character of his tenure; that discretionary regime was then imposed on a Ch III court that struggled to divorce those considerations from the decision-making process, and which demonstrated by its reasons that the court found the exercise unfamiliar. The appellant submitted that these "considerations included the general economy as being interests that prevailed over the specific issues of the appellant[]. When considering the individual circumstances of the appellant[] (i.e. to weigh in the balance against political and economic considerations) the former being more familiar issues to courts, the [primary judge] disregarded those and held that examination of comparable properties for alternative accommodation was not necessary, and without regard to individual circumstances."
106 The appellant submitted the mix of functions conferred on the FCCA led the court into error and also led to injustice to the appellant.
107 We turn to consider these submissions.
108 We first mention the reliance by the appellant in oral submissions on what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61. The question in that case was whether, as the High Court had previously held, it was correct to say that "court" in s 77(iii) of the Constitution meant the judges and judicial officers who were members of the court but did not include the organisation and officers through which its powers and jurisdiction were exercised. The High Court held that this narrow interpretation was not to be preferred and that a master, although not a member of the court, was encompassed by the words "any court of a State" in s 77(iii) (whereby in respect of any of the matters in ss 75 and 76 the Parliament may make laws investing any court of a State with federal jurisdiction). The circumstances in that case were therefore very different to the issues in this appeal which concerns the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach insufficiently took account of the States' legislative competence to alter the structure and organization of State courts. His Honour also said, being the passage relied on by the appellant:
Although the Commonwealth Parliament has no power to alter the structure or organization of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts. Moreover, it may condition the investment of federal jurisdiction on the existence of a suitably structured State court - see, for example, s. 39(2) of the Judiciary Act 1903 (Cth), as amended.
We see nothing of present assistance in that statement although, of course, we accept that there are limitations on the nature of the power which may be conferred on a Chapter III court.
109 In that respect, we note the terms of s 5(3) of the Instrument which states that nothing in ss 5 to 10 of the Instrument has effect so as to confer non-judicial power on the FCCA, unless the non-judicial power is incidental to the exercise of judicial power by that court.
110 We reject the appellant's submission that merely because the State Tribunal formerly exercised powers in relation to Commonwealth tenancy disputes involving land in New South Wales this demonstrated, or assisted in demonstrating, that non-judicial power has been conferred on the FCCA.
111 As a matter of history, landlord and tenant disputes were heard and determined by the ordinary courts for many decades. Further, a State Tribunal may exercise State judicial power, even if it is not a court.
112 In Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 (Precision Data) the High Court said, at 189:
… although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
(Footnotes omitted.)
113 In Brandy, at 267 Deane, Dawson, Gaudron and McHugh JJ said, with reference to Precision Data, that there were functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.
114 Next, the appellant contended that the primary judge erred in Rigney at [71] in relying on the consideration that the orders he was to make were "immediately enforceable by the Court". To give the context for his Honour's statement, we reproduce the following paragraphs from that judgment at [69]-[71]:
The Court is required to apply the Tenancies Act to the facts and circumstances shown on the evidence before it. Thus, in this case, there will need to be a factual determination of, amongst other things, whether or not the respondents have been in continual possession of the premises for 20 years. This in turn will require an evaluation of the nature of the respondents' occupation and whether that amounts to possession within the meaning of the Tenancies Act. Also in issue will be whether there is a residential tenancy agreement in respect of those premises, whether that agreement was for a fixed term, and whether that fixed term (if any) has expired. In short, the Court is required to conduct an enquiry concerning the law as it is on the facts as they are: see Tasmanian Breweries at 374 per Kitto J.
Once that inquiry has been conducted, the Court must then determine whether to make a termination order. Such a termination order requires there to be an order for possession at the same time to take effect as the Court considers appropriate. While the respondents are correct to say that this second inquiry is a very broad and arguably a discretionary one, that is not, in light of the authorities discussed above, decisive of the issue of whether the power is non-judicial.
First, any discretion, or more accurately, determination of appropriateness, must be bound by the object, scope and purpose of the Tenancies Act. This is a familiar, if not daily, part of any Court's work. Secondly, it is to be expected, as with any broad power with which a Court is invested, that guiding principles will emerge so that the power is not simply one that arises on the basis of some idiosyncratic notions of individual judges. Thirdly, the determination by the Court will set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. Fourthly, and in my view, critically, those rights and obligations are immediately enforceable by the Court.
115 In our opinion, the primary judge was here referring to the distinction described in Brandy as to whether the body had the capacity to give a decision enforceable by execution or whether, as in that case, a determination by the Commission was not binding or conclusive between any of the parties to it but the Commission was required to lodge a determination in a registry of the Federal Court and upon registration the determination was to have effect as if it were an order made by the Court. As Mason CJ, Brennan and Toohey JJ said in Brandy at 257, the fact that the Commission could not enforce its own determinations was a strong factor weighing against the characterisation of its powers as judicial. In our opinion, it is not significant, in this context, that s 120 of the 2010 RTA provides that a person must not enter residential premises for the purposes of taking possession of those premises unless the person is acting in accordance with a warrant arising out of an order for possession of the State Tribunal or a writ or warrant arising out of a judgment or order of a court. On the assumption that a warrant referable to s 120 of the 2010 RTA is necessary where the order for possession is made by the FCCA, it remains the case that the FCCA can enforce its own determinations. We accept the respondent's submissions that the FCCA's orders had the immediate effect of terminating the contractual relationship and, in the event of non-compliance, a warrant may be obtained on the authority of the order for possession: s 121(1). By force of the FCCA's orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable.
116 In oral argument attention was given to the words in s 94(1)(c) of the 2010 RTA providing that the State Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement "if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case". Attention was given particularly to the scope of the discretion indicated by the word "appropriate" when the discretion came to be exercised by a Ch III court.
117 In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1, the High Court noted that the Federal Court had jurisdiction with respect to a matter which arose under the Workplace Relations Act 1996 (Cth) in relation to which an application for orders under s 298U may be made to it. The opening words of s 298U were as follows:
In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: …
The orders there referred to included, in paragraph (e) "injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects".
118 The High Court also referred to s 23 of the Federal Court of Australia Act 1976 (Cth), which provided that the Court has power to make "orders of such kinds, including interlocutory orders … as the Court thinks appropriate". In relation to interlocutory relief, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said at 32-33:
The powers of the Federal Court under s 23 of its Act are powers "to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate'", as Deane J noted in Jackson v Sterling Industries Ltd [[1987] HCA 23; (1987) 162 CLR 612 at 622]. He added:
"Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction."
One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. … The moulding of an interlocutory injunction must depend upon the circumstances of each case.
(Footnote omitted.)
119 We would therefore read the word "appropriate", as did their Honours, as excluding purely subjective notions of what is appropriate and also as excluding the application of extra-legal standards in order to determine the case.
120 We do not accept the appellant's submission that the findings as to competing need of the lessee's and lessor's interests and what was "appropriate" was a determination which was clearly not of a legal character.
121 The appellant drew attention to the reference by the primary judge to principles emerging to guide the exercise of the discretion but, in our opinion, this was saying no more than was said in Thomas v Mowbray at 351, where their Honours said:
The following statement by Professor Zines, made after a review of a number of the decisions in this Court, is in point [Zines, The High Court and the Constitution, 4th ed (1997), p 195]:
"Any standard or criterion will have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre - an area of choice and of discretion; an area where some aspect of policy will inevitably intrude. The degree of vagueness or discretion will be affected by what is conceived to be the object of the law and by judicial techniques and precedents. Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis. Rules and principles emerge which guide or direct courts in the application of the standard."
The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether "making the order would substantially assist in preventing a terrorist act" (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.
122 A similar point had been made earlier in R v Joske; Ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48; 135 CLR 194 at 216 where Mason and Murphy JJ wrote:
Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v. Cominos). It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decisions; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under sub-s. (2)(a) and the impact which such an order will have on the interests of persons who may be affected.
(Footnote omitted.)
123 It follows, in our opinion, that the attack on the validity of the amendments to the FCCA Act and on the validity of the Instrument fails.