Parties Dispute Tribunal's Jurisdiction Over Discrimination Complaint

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (4 May 2022)

The respondent made a complaint under Anti‑Discrimination Act 1998 (Tas) ("State Act") and was referred to the Anti-Discrimination Tribunal ("Tribunal").  The appellants asserted that the provisions in State Act were inconsistent with Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth). 

The Court, in determining whether the Tribunal had jurisdiction to hear and determine complaint, assessed whether the defence needed to meet some threshold of arguability to give rise to matter of kind described in ss 76(i) and 76(ii) of Constitution.

Facts:

The respondent filed a complaint  that the appellants discriminated on the ground of disability in the provision of a facility by failing to provide adequate wheelchair access in the construction of Parliament Square in Hobart. 

In their formal defence to the complaint, the appellants asserted to the Tribunal that the State Act is in relevant part inoperative by force of s.109 of the Constitution because it is inconsistent with the Disability Discrimination Act 1992 (Cth) ("the Commonwealth Act") and the Disability (Access to Premises – Buildings) Standards 2010 (Cth) made under it ("the Commonwealth Standards"). 

The Tribunal ordered that the complaint should be dismissed for want of jurisdiction. On appeal from the order of the Tribunal to the Supreme Court of Tasmania, the Full Court (Blow CJ, Wood and Estcourt JJ) addressed the merits of the constitutional defence and unanimously rejected it. 

The Full Court set aside the order of the Tribunal and remitted the complaint to the Tribunal for hearing and determination.  Blow CJ, with whom Wood J agreed, described the argument that the State Act is inconsistent with the Commonwealth Act and the Commonwealth Standards as "misconceived".  

Despite the use of that epithet, the Full Court did not clearly identify what it saw as the appealable error on the part of the Tribunal.  On the indisputable premise that the jurisdiction conferred on the Tribunal to hear and determine a complaint cannot involve the exercise of judicial power unless such order as the Tribunal may make if it finds the complaint to be established is binding on the parties, the Australian Human Rights Commission ("the AHRC") argues that the State Act on its proper construction makes the binding effect of the Tribunal's order contingent on registration of that order in the Supreme Court.  

The AHRC raised a threshold issue with the support of the Attorney-General of Queensland intervening on the appeal to this Court, as to whether the jurisdiction conferred on the Tribunal by the State Act to hear and determine a complaint of discrimination referred to it in truth involves the exercise of judicial power.

Issue:

I. Whether or not the Tribunal exercised judicial power in determining complaint under State Act.

II. Whether or not the Tribunal had jurisdiction to hear and determine complaint.

III. Whether or not the defence needed to meet some threshold of arguability to give rise to matter of kind described in ss 76(i) and 76(ii) of Constitution.

Applicable law:

Constitution, Ch III s 75 - provides that the Commissioner or an authorised person, by written notice, may direct a person to take part in a conciliation conference at a specified time and place whether before, during or after the investigation of the complaint.

Anti-Discrimination Act 1998(Tas), ss 89, 90 - relied upon in holding that the appellants discriminated on the ground of disability in the provision of a facility by failing to provide adequate wheelchair access in the construction of Parliament Square in Hobart.

Burns v Corbett (2018) 265 CLR 304 - held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution. 

Dahms v Brandsch [1911] HCA 55 - provides that a matter meets the description of a matter between residents of different States if the parties to the justiciable controversy which comprises the matter are natural persons who are in fact resident in different States.

Cawthorn v Citta Hobart Pty Ltd (2020) 387 ALR 356 - where the Full Court set aside the order of the Tribunal and remitted the complaint to the Tribunal for hearing and determination.

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 - where despite the use of that epithet, the Full Court did not clearly identify what it saw as the appealable error. 

Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 - provides that the jurisdiction conferred on the Tribunal to hear and determine a complaint cannot involve the exercise of judicial power unless such order as the Tribunal may make if it finds the complaint to be established is binding on the parties.

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 - referenced a provision of the legislation in issue which specifically provided that an unregistered determination was "not binding or conclusive between any of the parties to the determination".

Graham v Minister for Immigration and Border Protection [2017] HCA 33 - provide that "all power of government is limited by law" and that "[w]ithin the limits of its jurisdiction where regularly invoked, the function of the judicial branch of government is to declare and enforce the law that limits its own power and the power of other branches of government through the application of judicial process and through the grant, where appropriate, of judicial remedies". 

Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 - provides that failure to exercise, or to observe the legislated limits of, a jurisdiction conferred on a court or a non-court tribunal established by Commonwealth legislation is amenable to compulsion or restraint by mandamus or prohibition granted in the entrenched original jurisdiction of this Court under s 75(v) of the Constitution.

Kirk v Industrial Court (NSW) (2010) 239 CLR 531 - provides that failure to exercise, or to observe the legislated limits of, a jurisdiction conferred on a court or a non-court tribunal established by State legislation is correspondingly amenable to compulsion or restraint by an appropriate judicial remedy granted in the entrenched supervisory jurisdiction of the Supreme Court of that State.

Burton v Honan [1952] HCA 30 - provides that if not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, the power to take steps to ensure its own compliance with its duty to comply with the limits of its own jursidiction is necessarily implied on the basis that "everything which is incidental to the main purpose of a power is contained within the power itself".

Petrotimor Companhia de Petroleos SARL v The Commonwealth [2003] FCAFC 83 - provides that the exercise of the power is incapable of quelling a controversy between parties about existing legal rights.

R v Davison [1954] HCA 46 - provides that the power takes its nature from the nature of the power to which it is incidental: "[t]he nature of the final act determines the nature of the previous inquiry". 

New South Wales v Kable [2013] HCA 26 - provides that the court, in other words, has "jurisdiction to decide its own jurisdiction". 

R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 - provides that a tribunal that is not a court and that is invested with non-judicial power correspondingly has authority – in the exercise of non-judicial power – to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action".

Re Adams and the Tax Agents' Board [1976] AATA 1 - where the authority is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding its conduct to accord with the law". 

Analysis:

Unless and until registration occurs, the Tribunal's order and the inquiry leading up to the making of that order are entirely administrative.

Compliance with the constitutional limitation on State legislative capacity recognised in Burns is not to be achieved by construing the provisions of the State Act which confer jurisdiction on the Tribunal to hear and determine a complaint to exclude a matter of the same description as a matter referred to in s 75 or s 76 of the Constitution.  

Compliance with the constitutional limitation is to be achieved by construing the provision permitting registration of the Tribunal's order to exclude an order that, if registered, would result in an exercise of judicial power with respect to a matter of a description in s 75 or s 76 of the Constitution. The essential flaw in the AHRC's argument is that it confuses the order of the Tribunal with the mechanism for enforcement of that order. 

An order made by the Tribunal on finding a complaint established takes immediate effect as an order with which the person to whom it is directed is bound to comply is not a precondition to the order being required to be complied with.  The Tribunal has a duty and concomitant authority to ensure that a complaint referred to it is and remains within its jurisdiction to hear and determine.  Having a judicially enforceable duty to comply with the limits of its own jurisdiction, a court or a non-court tribunal must have power to take steps needed to ensure its own compliance with that duty.  The power which a court or a non-court tribunal necessarily has to ensure that it remains within the limits of its jurisdiction is not of a nature that is inherently judicial. 

The power takes its nature from the nature of the power to which it is incidental: "[t]he nature of the final act determines the nature of the previous inquiry".  

A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority – in the exercise of non-judicial power – to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action".  

The jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution on which State judicial power is conferred by State legislation is to be understood in conformity with the same principles.  The subject-matter of the complaint referred to the Tribunal was a justiciable controversy about the entitlement of the respondent to an order under the State Act on the basis that the appellants discriminated on the ground of disability in the provision of a facility by failing to provide adequate wheelchair access in the construction of Parliament Square in Hobart.

The assertion by the appellants by way of defence to the complaint that the State Act is in relevant part inoperative by force of s 109 of the Constitution by reason of inconsistency with the Commonwealth Act and the Commonwealth Standards formed part of the one justiciable controversy for the reason that the determination of the constitutional defence was essential to the determination of the claim. 

That was so notwithstanding the incapacity of the Tribunal judicially to determine the constitutional defence in the exercise of the limited jurisdiction conferred by the State Act. The totality of that single justiciable controversy was therefore one matter meeting the descriptions in both s 76(i) and s 76(ii) of the Constitution. 

Conclusion:

The hearing and determination of a complaint referred to the Tribunal under the State Act involves the exercise of judicial power.  A tribunal could not exercise federal jurisdiction in respect of a matter arising under the Constitution.  The Tribunal correctly dismissed Mr Cawthorn’s claim for want of jurisdiction.  It is unnecessary, in order to resolve the appeal to this Court, to decide the appellants' second ground of appeal concerning the merits of the s 109 issue.  The Court allowed the appeal and set aside orders 1 to 3 of the Full Court of the Supreme Court of Tasmania made on 23 December 2020.  In place of the orders set aside, the appeal is dismissed.  There is no order as to costs.