FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Anti‑Discrimination Tribunal (Tasmania)

[2008] FCAFC 104

CONSTITUTIONAL LAW– complaint of discrimination on the basis of disability brought against Centrelink in the Tasmanian Anti‑Discrimination Tribunal – whether the Tribunal has jurisdiction to hear the complaint – whether Centrelink as a manifestation of the Commonwealthand immune from any suit thatinvokesState judicial power – whether Tribunal is a “court of a state” in which the judicial power of the Commonwealth can be invested.

Held (per Kenny J, Goldberg and Weinberg JJ not deciding):  Tribunal exercises judicial power, but not Commonwealth judicial power; the Anti‑Discrimination Tribunal is not a “court of a state” and cannot receive federal jurisdiction; the Anti‑Discrimination Tribunal has no jurisdiction to hear or determine the complaint.

STATUTES– interpretation – whether Anti‑Discrimination Act 1998 (Tas)bindsthe Crown in right of the Commonwealth – whether Centrelink is a ‘person’ under the Anti‑Discrimination Act and can be made the subject of a complaint.

Held (per Weinberg and Kenny JJ, Goldberg J dissenting):  Anti‑Discrimination Act 1998(Tas) does not bind the Crown in right of the Commonwealth; Centrelink is not a ‘person’ under the Anti-Discrimination Act.

ADMINISTRATIVE LAW – whether existence of Tribunal established.

Held (per Goldberg, Weinberg and Kenny JJ):  Existence of Tribunal established – doctrine of presumption of regularity applies.

Anti‑Discrimination Act 1998 (Tas):  ss 3, 4, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 59, 62(1)(b), 64, 65, 68, 71, 72, 78, 85, 86, 86A, 87, 89, 90, 93, 95, 99, 99A, 100, 102, 103(1), 104(1)(a), 104(2), 104(3)

Federal Court of Australia Act 1976 (Cth):  s 20(1A)

Commonwealth Services Delivery Agency Act 1997 (Cth):  ss 3, 6, 6A, 7, 8(1)(a), 29, 35

Judiciary Act 1903 (Cth):  ss 38, 39, 39B(IA)(a), 56, 64

Disability Discrimination Act 1992 (Cth)

Acts Interpretation Act 1931 (Tas):  ss 3, 4(1)(a), 6(6), 11(1), 21(1)(a), 27, 41(1), 43(1)

Workers Compensation Act 1987 (NSW):  s 6(2)

State Service Act 2000 (Tas):  s 3

Magistrates Court Act 1987 (Tas):  ss 3, 15AA

Acts Interpretation Act 1901 (Cth):  s 15

Commonwealth Constitution:  ss 71, 77, 109, Chapter III

ProvinceofBombayv Municipal Corporation of the City of Bombay [1947]AC 58 referred to

Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 cited

Bropho v Western Australia (1990) 171 CLR 1 considered

Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 considered

Commonwealth v Wood (2006) 148 FCR 276 overruled

Murphy v Family Court of Australia [2002] Tas ADT 9 cited

Daly & Swanton v ABA [2005] Tas ADT 2 cited

Cain v Doyle (1946) 72 CLR 409 cited

Commonwealth v Western Australia (1999) 196 CLR 392 cited

IW v City of Perth (1997) 191 CLR 1 referred to

Dillon v R [1982] AC 484 cited

R v Turnbull [1907] VLR 11 cited

Pertl v Kahl (1976) 13 SASR 433 cited

McGahey v Alston (1836) 150 ER 731 cited

Faulkner v Johnson (1843) 152 ER 937 cited

M’Mahon v Lennard (1858) 10 ER 1576 cited

Jenkin v Attorney‑General of Victoria [1921] VLR 79cited

R v Brewer (1942) 66 CLR 535 cited

James v Deputy Commissioner of Taxation (1957) 97 CLR 23 cited

Meyn v Graham [1969] 1 NSWR 692 cited

Slapjums v City of Knox (No 1) [1978] VR 325 cited

Wright v Bastin (No 2) [1979] VR 329 cited

Watson v Lee (1979) 144 CLR 374 cited

United Transport Services Pty Ltd v Evans [1992] 1 VR 240 cited

Scadding v Lorant (1851) 3 HLC 418 cited

Margate Pier Co v Hannam (1883) 3 B & Ald 266 cited

Waterloo Bridge Co v Cull (1859) 1 El & El 245 cited

Ellis v Bourke (1889) 15 VLR 163 cited

Re Aldridge (1893) 15 NZLR 361 cited

Buckley v Edwards [1892] AC 387 cited

Jamieson v McKenna (2002) 136 A Crim R 82 cited

Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 cited

Commonwealth v Westwood (2007) 163 FCR 71 considered

British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32 cited

Lord Advocate v Dumbarton District Council [1990] 2 AC 580 referred to

State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511 referred to

Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 cited

Kaye v Attorney-General (Tas) (1956) 94 CLR 193 cited

Re Commissioner of Water Resources [1991] 1 QD R 549 cited

BMG Resources Ltd v Municipality of Beaconsfield [1988] Tas R 142 cited

Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143referred to

China Ocean Shipping Co v South Australia (1979) 145 CLR 172referred to

Trust Company of Australia (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) (2006) 66 NSWLR 77followed

Forge v Australian Securities and Investment Commission (2006) 228 CLR 45 applied

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245applied

Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385 referred to

Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 413 referred to

R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40referred to

Commissioner of Taxation v Munro (1926) 38 CLR 153 referred to

Attorney-General (Cth) v Breckler (1999) 197 CLR 83 referred to

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361referred to

Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 referred to

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559referred to

Felton v Mulligan (1971) 124 CLR 367referred to

Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372 referred to

Commonwealth v Queensland (1975) 134 CLR 298referred to

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 referred to

Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087referred to

Lorenzo v Carey (1921) 29 CLR 243referred to

Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 referred to

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254referred to

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1referred to

Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 referred to

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173referred to

Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49referred to

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337referred to

North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 referred to

Fardon v Attorney-General (Qld) (2004) 223 CLR 575referred to

Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 referred to

Valente v The Queen (1985) 24 DLR 161 (4^th), [1985] 2 SCR 673 cited

Starrs v Ruxton 2000 SLT 42cited

R v Genereux [1992] 1 SCR 259 cited

Kearney v HM Advocate 2006 SC (PC) 1cited

Findlay v United Kingdom (1997) 24 EHRR 221cited

Cooper v United Kingdom (2004) 39 EHRR 8cited

Bryan v United Kingdom (1996) 21 EHRR 342cited

Tana v Baxter (1986) 160 CLR 572referred to

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323applied

Pidoto v Victoria (1943) 68 CLR 87referred to

Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468referred to

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 referred to

New South Wales v Commonwealth (2006) 229 CLR 1 referred to

Victoria v Commonwealth (1996) 187 CLR 416referred to

Re Tracey; Ex parte Ryan (1989) 166 CLR 518referred to

Bank of NSW v Commonwealth (1948) 76 CLR 1 referred to

McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835applied

Knox County v Ninth National Bank of the City of New York (1893) 147 US 91referred to

Dawson v Westpac Banking Corporation (1991) 104 ALR 295referred to

Lewis v United States (1929) 279 US 63referred to

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 followed

Sir Owen Dixon, “De Facto Officers” (1938) 1 Res Judicatae 285 (republished in S Woinarski (ed), Jesting Pilate (1965))

Amnon Rubinstein, Jurisdiction and Illegality: A Study in Public Law (1965)

H W R Wade and C F Forsyth, Administrative Law (9^th ed, 2004)

Francis Bennion, Statutory Interpretation (5^th ed, 2008)

Pearce and Geddes, Statutory Interpretation in Australia (6^th ed, 2006)

Hon Duncan Kerr SC MP, “State Tribunals and Ch III of the Australian Constitution” (2007) 31 Melbourne University Law Review 622

COMMONWEALTH OF AUSTRALIA v ANTI‑DISCRIMINATION TRIBUNAL (TASMANIA) and RODNEY JOHN NICHOLS

TAD 25 OF 2007

GOLDBERG, WEINBERG & KENNY JJ

13 JUNE 2008

MELBOURNE

THE COURT DECLARES THAT:

1.                  Neither the Commonwealth of Australia nor Centrelink is a person to whom the Anti‑Discrimination Act 1998 (Tas) applies.

2.         The Anti‑Discrimination Tribunal (Tasmania) has no jurisdiction to hear and determine the complaint against Centrelink made by the Second Respondent to the Anti‑Discrimination Commissioner on or about 19 July 2006 and referred by the Anti‑Discrimination Commissioner to the Anti‑Discrimination Tribunal (Tasmania) on 15 February 2007 for inquiry.

AND THE COURT ORDERS THAT:

3.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

GOLDBERG J:

THE APPLICATION

1                     The matter before the Court is an application by the Commonwealth of Australia that neither the Commonwealth nor its statutory agency, the Commonwealth Services Delivery Agency (also known as “Centrelink”) is a person to whom the Anti‑Discrimination Act 1998 (Tas) (“the Anti‑Discrimination Act”) applies.  The Commonwealth seeks a further declaration that the Anti‑Discrimination Tribunal (Tasmania) (“the Tribunal”) has no jurisdiction to hear and determine a complaint against Centrelink made by the second respondent, Mr Rodney John Nichols, to the Anti‑Discrimination Commissioner of the State of Tasmania on or about 19 July 2006 which was referred by the Commissioner to the Tribunal on 15 February 2007 for inquiry.  The Commonwealth seeks an injunction restraining the Tribunal from conducting an inquiry into, or determining, the complaint made by Mr Nichols. 

2                     The application was filed in the Court on 28 August 2007 and on 25 September 2007 the Acting Chief Justice, Gray J, directed pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that a Full Court should exercise the original jurisdiction of the Federal Court in the matter.

3                     The grounds for the Commonwealth’s application are:

(a)        The conduct of Centrelink cannot be made the subject of complaint or inquiry under the Anti‑Discrimination Act because:

(i)         Centrelink is a statutory agency of the Commonwealth established by s 6 of the Commonwealth Services Delivery Agency Act 1997 (Cth) (“the CSD Act”);

(ii)        the CSD Act does not vest Centrelink with legal personality enabling it to sue or be sued in its own name, meaning that Centrelink is a manifestation of the Commonwealth;

(iii)       the Commonwealth is not a “person” within the meaning of, or for the purposes of the Anti‑Discrimination Act;

(iv)       as a matter of statutory construction neither Centrelink nor the Commonwealth can be the subject of a complaint or an inquiry into a complaint under the Anti‑Discrimination Act.

(b)        The complaint by Mr Nichols was not a competent complaint under the Anti‑Discrimination Act because the conduct complained of was not in connection with the provision of “facilities, goods and services”, within the meaning of the Anti‑Discrimination Act, by Centrelink and Mr Nichols.

(c)        To the extent that the Anti-Discrimination Act purports to empower the Tribunal to inquire into and determine a complaint against the Commonwealth or Centrelink, it is invalid because:

(i)         the Tribunal is not a “court of a State” in which the judicial power of the Commonwealth can be invested pursuant to ss 71 or 77 of Commonwealth Constitution;

(ii)        section 39 of the Judiciary Act 1903 (Cth) does not invest the judicial power of the Commonwealth in the Tribunal;

(iii)       the only judicial power that can be exercised in relation to the Commonwealth is the judicial power of the Commonwealth;

(iv)       the Anti‑Discrimination Act invests the Tribunal with State judicial power;

(v)        if and to the extent that the Anti‑Discrimination Act purports to authorise the Tribunal to exercise State judicial power in relation to the Commonwealth:

A.        it is contrary to Ch III of the Commonwealth Constitution and, to that extent, invalid;

B.         the Commonwealth is immune from any Act which purports to invoke State judicial power.

(d)        To the extent that the Anti‑Discrimination Act purports to empower the Tribunal to inquire into and determine a complaint against the Commonwealth or an agency of the Commonwealth, it is inconsistent with the Disability Discrimination Act 1992 (Cth) and, to that extent, invalid by reason of s 109 of the Commonwealth Constitution.

FACTUAL BACKGROUND

4                     The circumstances giving rise to the application are as follows.  Centrelink is a statutory agency of the Commonwealth established by s 6 of the CSD Act.  The function of Centrelink is to assist its chief executive officer in the performance of his or her functions:  s 6A of the CSD Act.  The chief executive officer of Centrelink has a number of functions, one of which is the provision of Commonwealth services in accordance with service arrangements.  Centrelink delivers a range of Commonwealth services on behalf of various Government departments.  One such department is the Department of Health and Ageing.  That department is involved in the management of Commonwealth pensions. 

5                     On 17 July 2006, Mr Nichols visited a Centrelink Customer Service Centre at Rosny Park in Hobart.  Mr Nichols attended the centre in response to a letter from Centrelink requesting information relating to his pensioner education supplement payments.  On his arrival there was a long queue of people standing in line waiting to speak to Centrelink counter staff.  This meant a delay for Mr Nichols before he could be attended by, and speak to, the Centrelink counter staff himself.  This posed a problem for Mr Nichols as he suffered pain in the groin due to a condition of prostate cancer.  He spoke to a Centrelink counter assistant at the counter and asked whether he could ask a question.  The assistant said that he would have to wait in the queue like others and that the computers were down.  He explained that he had a disability and could not wait in the queue but that he did not want to jump the queue.  He asked about the availability of the Centrelink Service Centre at Glenorchy and was told that that centre’s computers would also most probably be down.  Mr Nichols asked to speak to the assistant’s superior.  After a short delay a Centrelink staff person appeared and Mr Nichols explained his situation to her but again he was told he would have to wait his turn in the queue.  He was also told that he could use a chair if he wished.  Mr Nichols became frustrated at Centrelink’s attitude that he had to wait in the queue and he decided to leave the service centre which he did.  As a result of this experience Mr Nichols suffered deep anxiety and humiliation and felt he had been the subject of discrimination on the grounds of his disability.

6                     On 19 July 2006 Mr Nichols filed a complaint with the Anti‑Discrimination Commissioner under the provisions of the Anti‑Discrimination Act in which he claimed that the staff of the Centrelink Customer Services Centre at Rosny Park had discriminated against him on the grounds of his disability and that the discrimination occurred in the provision of facilities, goods and services. 

7                     By letter dated 15 August 2006 the Commissioner notified Centrelink that she had received a complaint from Mr Nichols in which he alleged discrimination on the basis of disability in the area of the provision of the facilities, goods and services, that the complaint had been accepted for investigation as it disclosed possible breaches of certain provisions of the Anti‑Discrimination Act and that Centrelink had been named as a respondent to the complaint. 

8                     The Commissioner directed that Centrelink attend a conciliation conference and advised that if the attempt to resolve the complaint by conciliation was not successful the Anti‑Discrimination Act required her to refer the complaint to the Tribunal for inquiry.  A representative of Centrelink attended a conciliation conference on 8 February 2007 but the complaint was not resolved. 

9                     On 15 February 2007 the Commissioner referred Mr Nichols’ complaint to the Tribunal for inquiry pursuant to s 78 of the Anti‑Discrimination Act.  The Commissioner identified the issue raised in the complaint that remained unresolved as being:

“Whether Mr Nichols was discriminated against (directly or indirectly) on the basis of a disability in the manner he was attended to by staff at the Centrelink Rosny Park Customer Service Centre on 17 July 2006.”

10                  Mr Nichols’ complaint was assigned to Ms Anita Smith, a part‑time member of the Tribunal and the Tribunal listed the complaint for directions on 18 June 2007.  Centrelink objected to the jurisdiction of the Tribunal.  On 28 August 2007 the Commonwealth filed the application in this proceeding and on 31 August 2007 the Tribunal agreed to refrain from taking further steps to determine the complaint pending the determination of this proceeding.

THE TASMANIAN ANTI‑DISCRIMINATION ACT

11                  The establishment of the Tribunal is provided for in s 12 of the Anti‑Discrimination Act which provides:

“(1)     The Minister may –

(a)        establish a Tribunal; and

(b)        appoint a person or persons as member or members of the Tribunal; and

(c)        appoint a person as chairperson of the Tribunal who is a legal practitioner of not less than 7 years’ standing, a magistrate or former judge.

(2)       If the Tribunal consists of one member, that member must be a legal practitioner of not less than 7 years’ standing, a magistrate or former judge.

(3)       If the Tribunal consists of 2 or more members –

(a)        at least one of those members must be a legal practitioner of not less than 7 years’ standing, a magistrate or former judge; and

(b)        the other member or members must be a person or persons with the experience and expertise relevant to the inquiry before the Tribunal.

(4)       The chairperson may determine –

(a)        which member or members of the Tribunal constitute the Tribunal in a particular inquiry or review; and

(b)        which member is to be the presiding member of the Tribunal in that inquiry or review.”

12                  Section 13 of the Anti‑Discrimination Act provides that the functions of the Tribunal are:

“(a)     to conduct an inquiry into a complaint; or

  (b)     to review a decision of the Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints.”

13                  Section 16 of the Anti‑Discrimination Act provides that a person must not discriminate against another person on the ground of, inter alia, the attribute of disability.

DOES THE ANTI‑DISCRIMINATION ACT APPLY TO THE COMMONWEALTH AS A PERSON?

14                  The Commonwealth’s principal submission was that, as a matter of construction, the Anti‑Discrimination Act does not apply to the Commonwealth as a person. 

15                  Historically the accepted principle was that the Crown was not bound by the terms of a Statute unless it was expressly named in the Statute or it was “manifest from the very terms of the Statute, that it was the intention of the legislature that the Crown should be bound”:  Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 at 61. 

16                  In Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107, Gibbs ACJ said (at 116):

“It is an established rule of construction that no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound; there will be such a necessary implication if it is manifest from the very terms of the statute that it was the intention of the legislature that the Crown should be bound.”

[citations omitted.]

17                  As was said in Province of Bombay v Municipal Corporation of the City of Bombay (supra) (at 63):

“it must also be remembered that, if it be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so in plain words”. 

18                  Thisprinciplewas modified in Bropho v Western Australia (1990) 171 CLR 1.  The majority of the High Court, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said (at 22):

“It follows from what has been said above that considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by “necessary implication” in the limited and stringent sense explained above.  If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail.  That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made.  Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context.”

19                  The majority of the High Court also said (at 23):

“In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises.  If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong (cf Canadian Broadcasting Corporation v Attorney‑General (Ontario)).”

[citations omitted.]

20                  Before turning to the relevant provisions of the Anti‑Discrimination Act, it is important to identify relevant provisions of the Tasmanian Acts Interpretation Act 1931 (Tas).  Section 41(1) provides:

“In any Act the expressions ‘person’ and ‘party’ respectively shall include any body of persons, corporate or unincorporate, other than the Crown.”

However, this general provision must be interpreted and, qualified, by s 4(1) of the Acts Interpretation Act 1931 (Tas) which provides:

“Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as –

(a)       any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;

(b)       the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made.”

21                  Further, s 6(6) of the Acts Interpretation Act 1931 (Tas) provides:

“No Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose.”

22                  Section 4 of the Anti‑Discrimination Act provides:

“This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.”

23                  I can see no reason why s 4 of the Anti‑Discrimination Act should not be given full effect according to its terms.  Although s 41(1) of the Acts Interpretation Act 1931 (Tas) provides that the expression “party” in any Act shall not include the Crown, that exclusion is subject to the provisions of s 4(1).  I consider that s 4 of the Anti‑Discrimination Act contains an express provision, within the terms of s 4(1) of the Acts Interpretation Act 1931 (Tas), which excludes the operation of s 41(1) of the Acts Interpretation Act 1931 (Tas) in the Anti‑Discrimination Act.  Further, I consider that s 41(1) of the Acts Interpretation Act 1931 (Tas) is “inconsistent with or repugnant to the true intent and object” of the Anti‑Discrimination Act.  I consider further that s 4 of the Anti‑Discrimination Act contains, for the purposes of s 6(6) of the Acts Interpretation Act 1931 (Tas), express words which are included in the Anti‑Discrimination Act for the purpose of providing that the provisions of that Act are binding on the Crown, including the Crown in right of the Commonwealth of Australia. 

24                  The Commonwealth submitted that if the Anti‑Discrimination Act does not impose obligations on the Crown, either in a particular manifestation or in relation to a particular activity, the position is not altered by the fact that the Anti‑Discrimination Act, in the general sense, “binds the Crown”.  That submission fails to give any weight or content to the fact that the Act “binds” the Crown.  The submissions of the Commonwealth gave no content, meaning or effect to s 4 of the Anti‑Discrimination Act.  When senior counsel for the Commonwealth was asked – what does s 4 mean?, his response was that the question was very difficult to answer in the light of the other provisions of the Anti‑Discrimination Act and the Acts Interpretation Act 1931 (Tas).  I do not consider that the question is difficult to answer at all.  It is only difficult to answer if one gives no content to the verb “binds”. 

25                  The reference in s 4 of the Anti‑Discrimination Act to the Crown “in all its other capacities” can only be a reference to capacities which include the capacity of the Crown in the right of the Commonwealth of Australia. 

26                  The Commonwealth submitted that s 4 of the Anti‑Discrimination Act could not be read in isolation and had to be read in the context of the Act as a whole.  When so read, I do not consider that there is any other provision in the Act which is antithetical to the proposition that the Anti‑Discrimination Act binds the Commonwealth so that the Commonwealth is a “person” for the purpose of s 16 of the Anti‑Discrimination Act.

27                  The definition of “person” in s 3 of the Anti‑Discrimination Act as including “an organisation” does not advance the Commonwealth’s argument.  Although “organisation” is defined in s 3 as including “a council, a Government department within the meaning of the State Service Act 2000 or a state authority”, that definition is inclusive and not exclusive.

28                  It follows from the Commonwealth’s submission that s 4 of the Anti‑Discrimination Act has no work to do.  When this proposition was put to counsel for the Commonwealth, he responded:

“reading the Act as a whole, the apparent overriding or simple effect that otherwise would be attributed to section 4 cannot be, because the Parliament must have assumed that it was not.” 

29                  I can see no basis for the proposition that the Tasmanian Parliament, having included s 4 in the Anti‑Discrimination Act, must have assumed that the Anti‑Discrimination Act would not apply to the Commonwealth and that the Commonwealth was not a “person” for the purpose of s 16 and other provisions of the Anti‑Discrimination Act.

30                  The Commonwealth submitted that the Parliament of Tasmania had made specific provision for bringing departments of State and State authorities within the reach of the prohibition found in s 16 by virtue of the definitions in s 3 relating to “person” and “organisation”.  The Commonwealth relied on the proposition that the Parliament had made no equivalent provision in respect of the Commonwealth to support its submission that Parliament’s intention was that the Anti‑Discrimination Act was not intended to apply to the Commonwealth.  That submission cannot stand against the express provision found in s 4.  I make a similar observation in relation to the Commonwealth’s reliance on s 22(1)(f) of the Anti‑Discrimination Act which provides that the Act applies to discrimination and prohibited conduct “in the administration of any law of the State or any State program on the grounds specified”.

31                  These provisions which related to State instrumentalities are more likely to have been inserted out of an abundance of caution rather than as the manifestation of an intention that the Act would only apply to the Crown in right of the State of Tasmania and not the Crown in right of the Commonwealth of Australia or in any other right. 

32                  The Commonwealth placed particular reliance on the reasoning of the High Court in Telstra Corporation Ltd v Worthing (1999) 197 CLR 61.  One of the issues before the High Court was whether Telstra, which at that time was accepted as representing the Commonwealth of Australia, was subject to the provisions of the Workers Compensation Act 1987 (NSW). 

33                  The High Court concluded that in the relevant respects, the State workers’ compensation legislation did not apply to Telstra or, more correctly, to its earlier manifestation as the Australian and Overseas Telecommunications Corporation Limited.  This was notwithstanding the fact that the Workers Compensation Act 1987 (NSW) contained an express provision similar to that found in s 4 of the Anti‑Discrimination Act, that the State Act “binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities”.  It is important to note that s 6(2) of the Workers Compensation Act 1987 (NSW) provided that:

“Nothing in the Act renders the Crown liable to be prosecuted for any offence.”

34                  Telstra Corporation Ltd v Worthing (supra) was considered by Heerey J in Commonwealth v Wood (2006) 148 FCR 276, in which he concluded that the Anti‑Discrimination Act bound the Commonwealth and agents of the Commonwealth.  The Commonwealth criticised the reasoning of Heerey J, in particular on the basis that he did not respond to the proposition that:

“The silence in s 3 of the Act concerning Commonwealth bodies indicates that Commonwealth bodies were not intended to be caught by the definition of ‘organisation’ for the purposes of s 3.”

The proposition had been accepted by the Tribunal in Murphy v Family Court of Australia [2002] Tas ADT 9 and Daly & Swanton v ABA [2005] Tas ADT 2.  The Commonwealth submitted that Heerey J assumed that the indication in s 4 of the Anti‑Discrimination Act of an intent to bind the Crown meant that the Commonwealth must be a “person” for the purposes of the Anti‑Discrimination Act. 

35                  The Commonwealth submitted that Heerey J did not turn his attention to the definition of “person” and “organisation” in s 3 of the Anti‑Discrimination Act nor the significance of those definitions for the reach of that Act.  For the reasons to which I have referred earlier, I do not consider that those inclusive definitions derogate from the conclusion that there is a clear intention in the Act that the Commonwealth be bound by it. 

36                  Heerey J concluded that Telstra Corporation Ltd v Worthing (supra) was to be limited to an authority in relation to the construction of the particular State legislation.  Heerey J said (at par [33]):

“The Anti‑Discrimination Act could not be said to have central penal provisions comparable to those in the New South Wales Act.  Nor is there any equivalent to s 6(2) of the Act.”

37                  I agree with Heerey J’s reasoning that Telstra Corporation Ltd v Worthing (supra) is not an authority for the general proposition that a provision such as s 4 of the Anti‑Discrimination Act cannot evince an intention by the Parliament that the Commonwealth is to be bound by the relevant statute.  That Worthing is to be limited to being an authority in relation to the construction of the Workers Compensation Act 1987 (NSW), is demonstrated by the reasoning of the High Court at (at 75):

“As to the 1987 State Act, it contains the express statement in s 6(1), as to the Crown being bound in all its other capacities, which has been set out earlier in these reasons.  However, a central provision of the legislative scheme established by the 1987 State Act is the requirement, under the sanction of a penalty, that an employer, other than a self‑insurer, obtain and maintain in force a policy of insurance which complies with the requirements of the legislation (s 155).  Further, a ‘self‑insurer’ who holds a licence granted, as the 1987 State Act originally stood, by the State Compensation Board constituted thereunder, was obliged, under penalty, to maintain with the New South Wales Treasurer a deposit in an amount determined by that Board (s 213).

It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth.  No such indication is to be seen in the 1987 State Act.  To the contrary, s 6(2) states that nothing in that statute renders ‘the Crown’ liable to be prosecuted for any offence.  These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests.”

[citations omitted.]

38                  Although it has been said that it will require a clear indication of a legislative intention to attach penal provisions to the Commonwealth:  Cain v Doyle (1946) 72 CLR 409 at 425, (cf Bropho v Western Australia (supra) (at 23)), I consider that there is such an indication in the present case in s 4 of the Anti‑Discrimination Act. 

39                  The Commonwealth submitted that the effect of s 22(1)(f) of the Anti‑Discrimination Act was to proscribe discrimination in the administration of State laws and programs on some of the grounds specified in s 16 of the Anti‑Discrimination Act.  Discrimination in the administration of State laws and programs on other grounds is not prohibited but there is no equivalent limitation in relation to Commonwealth laws and programs in the Anti‑Discrimination Act, in contrast to s 29 of the Disability Discrimination Act 1992 (Cth).  The Commonwealth relied upon the observation of Gleeson CJ and Gaudron J in Commonwealth v Western Australia (1999) 196 CLR 392 (at 412):

“if the legislature has recognised that a statute will or may have a different impact on Government property or personnel, is ought not to be assumed that it intended to subject the property and personnel of the other polities in the federation to a regime which it recognised was inappropriate in its own case.”

40                  Nevertheless, I consider that the intention contained in the Anti‑Discrimination Act, particularly in s 4 is, clear. 

41                  The key to the decision in Telstra Corporation Ltd v Worthing (supra) is that the Court was not satisfied that there was “the clearest indication” of a legislative intention or purpose to subject the Commonwealth to the sanctions of penal provisions and criminal penalties which were central to the provisions of the State Act. 

42                  The principal difficulty I have with accepting the submissions of the Commonwealth and the extension of the reasoning in Telstra Corporation Ltd v Worthing (supra) beyond the structure of the specific legislation under consideration in that case is that it gives little content to the words “binding upon” in s 4 of the Anti‑Discrimination Act.  By using the expression “binding upon” in s 4, I consider that the legislature was saying that the Anti‑Discrimination Act applied to the Commonwealth and imposed legal obligations and duties upon it.  As a matter of principle, the imposition of legal obligations and duties carries with it the potential for the imposition of sanctions for breach of the statutory provisions. 

43                  The Commonwealth accepted that the words “binding upon” were to be construed as meaning “applies to” or “imposes obligations upon”.  Yet, when senior counsel for the Commonwealth was asked the question – to what sections of the provisions of the Anti‑Discrimination Act do you point which apply to the Commonwealth or which impose obligations on the Commonwealth?, senior counsel answered “none”.  Put shortly, the Commonwealth was advancing the proposition that s 4 of the Anti‑Discrimination Act had no work to do in relation to the Commonwealth. 

44                  The Commonwealth submitted that if s 4 stood by itself then it would have work to do but when taken in the context of the Act and the other sections of the Act it did not have effect so as to bind the Commonwealth in the sense of including the Commonwealth within the expression of a party who is bound by the Anti‑Discrimination Act.  The Commonwealth pointed to the definition section in s 3 which, for example, expanded the definition of “employer” to include a State employer but did not include the employer of other bodies politic such as the Commonwealth.  The Commonwealth pointed to the fact that in s 16 discrimination in the administration of any State law or State program was only prohibited on the grounds of subs (e) to (j).  However, discrimination in the administration of any State law or State program on the grounds of race, age, sexual orientation, lawful sexual activity, disability industrial activity, political belief or affiliation, (see subs (a) to (d), and (k) and (l)) were not prohibited.  Yet, there was no equivalent purported limitation on the application of the Act to the Commonwealth.  It followed, submitted the Commonwealth that if the Commonwealth was a person for the purposes of s 16 then it would be subject to a prohibition on grounds wider than those that would be applied to a Government department of the State when it was administering a State or State program.

45                  I do not consider that the absence of identification of Commonwealth departments or agencies in the inclusive definitions in s 3 or the limitation in s 16 on the discrimination to be prohibited in relation to State agencies can derogate from the clear words of s 4. 

46                  The Commonwealth placed significance and importance on the observations of Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 15:

“Those legislatures [Western Australia and other legislatures in Australia and the United Kingdom] have also deliberately confined the application of anti‑discriminatory legislation to particular fields and particular activities within those fields”. 

The Commonwealth pointed to the fact that the Anti‑Discrimination Act had a particular focus in that it identified particular activities and particular grounds of discrimination which are proscribed.  The Commonwealth submitted that the expression “services” was defined, albeit inclusively, in s 3 of the Anti‑Discrimination Act in a manner which included services provided by State authority or a council but did not include any reference to a Commonwealth authority.  The Commonwealth submitted that this was a further indication that the Parliament understood that the Anti‑Discrimination Act was not concerned with the provision of services by the Commonwealth.  It submitted that the Parliament had gone to the trouble of extending the definition of services to include those provided by a State authority or a council but that there was no equivalent reference to services provided by the Commonwealth or the Commonwealth authorities. 

47                  I do not consider that these definitions which are, in essence, either inclusive definitions or exemplifying provisions, that is to say they give examples of the type of service which is covered or included within the definition, can negate the effect of s 4. 

48                  The observation of Brennan CJ and McHugh J in IW v City of Perth (supra) does not assist in resolution of the particular issue before the Court in this case.  It may be accepted that the Parliament has deliberately confined the application of particular legislation to particular fields of discrimination and particular activities within those fields.  Nevertheless, it does not follow that this is the effect of the Anti‑Discrimination Act in circumstances where the legislation says that the Act binds the Commonwealth.

49                  It follows that, in my opinion, the conduct of Centrelink, an agency of the Commonwealth can be made the subject of complaint or inquiry under the Anti‑Discrimination Act as the Commonwealth is a “person” within the meaning of, and for the purposes of, the Anti‑Discrimination Act.

50                  I have read in draft the reasons for judgment prepared by Weinberg J and Kenny J.  They have reached the conclusion that the Anti‑Discrimination Act does not bind the Crown in right of the Commonwealth and that the Tribunal has no jurisdiction to deal with Mr Nichols’ complaint.  It follows, that the Commonwealth will obtain the declaratory relief it seeks.

51                  I agree with the conclusion of Weinberg J and Kenny J that the issue raised as to the status and establishment of the Tribunal is to be resolved by recourse to the presumption of regularity.  I am satisfied that it has been established that the Tribunal exists.  I also agree with the conclusion of Weinberg J and Kenny J that Mr Nichols’ complaint was a complaint abut Centrelink rather than about its staff.

52                  It is therefore unnecessary for me to consider the consequential issues which would need to be addressed had my opinion prevailed, namely whether Centrelink was engaged in the provision of goods, facilities or services and the complex constitutional issue whether the Tribunal is competent to determine Mr Nichols’ complaint.

53                  I do, however, wish to associate myself with the observations made by Weinberg J in pars [158] to [160] of his reasons.

Associate:

Dated:         13 June 2008

REASONS FOR JUDGMENT

WEINBERG J

54                  I have had the advantage of reading in draft the reasons for judgment prepared by Goldberg J.  I gratefully adopt his Honour’s summary of the background to, and procedural history of, this matter as set out at [1] to [10] of his judgment.  I have however reached a different conclusion as to the principal issue of construction.  In my opinion, the Commonwealth cannot be made the subject of any adverse finding by the Tribunal and is therefore entitled to the declaratory relief that it seeks. 

55                  Before embarking upon my own analysis of the Anti‑Discrimination Act, I should deal with a somewhat surprising preliminary point that arose during the course of argument. 

ESTABLISHMENT OF THE ANTI‑DISCRIMINATION TRIBUNAL

56                  Remarkably, there is a live issue as to whether the Tribunal was ever actually established.  Section 12 of the Anti‑Discrimination Act provides:

“(1)     The Minister may –

(a)        establish a Tribunal; and

(b)        appoint a person or persons as member or members of the Tribunal; and

(c)        appoint a person as chairperson of the Tribunal who is a legal practitioner of not less than 7 years’ standing, a magistrate or former judge.

(2)       If the Tribunal consists of one member, that member must be a legal practitioner of not less than 7 years’ standing, magistrate or former judge.

(3)       If the Tribunal consists of 2 or more members –

(a)        at least one of those members must be a legal practitioner of not less than 7 years’ standing, a magistrate or former judge; and

(b)        the other member or members must be a person or persons with the experience and expertise relevant to the inquiry before the Tribunal.

(4)       The chairperson may determine –

(a)        which member or members of the Tribunal constitute the Tribunal in a particular inquiry or review; and

(b)        which member is to be the presiding member of the Tribunal in that inquiry or review.”

57                  Although s 12 confers upon the Minister the power to establish a Tribunal, and although there is evidence before this Court to the effect that Mr Nichols’ complaint was referred to Ms Anita Smith, who is said to be a part‑time member, there is a paucity of evidence to demonstrate that the Tribunal was ever actually established. 

58                  In that regard, it should be noted that the Commonwealth relied upon an affidavit of Mr David Wilson, a solicitor employed by the Australian Government Solicitor in Tasmania.  Mr Wilson affirmed as follows: 

“The Tribunal was established by the Minister under s 12(1)(a) of the AD Act.

The current chairperson of the Tribunal is a magistrate and there are nine other members.  The chairperson and the other members carry out their responsibilities on a part-time basis as and when required.”

59                  Mr Wilson annexed to his affidavit a copy of an extract from the Magistrates Court Tasmania Annual Report 2005‑2006, which set out the membership of the Tribunal.  That extract stated that the Tribunal had been created by the Anti‑Discrimination Act, which commenced on 10 December 1999, and that this was the sixth report relating to the Tribunal, covering the fourth full year of its operation.  It identified the members of the Tribunal, including in Hobart, Ms Smith. 

60                  Despite Mr Wilson’s affidavit, the Court was concerned that there was too little known about how, if at all, the Tribunal had been constituted and, importantly, the terms upon which its members were appointed.  In response, the Court was provided with what was said to be a copy of a letter of appointment of a member to the Tribunal dated 18 July 2006.  The letter was written by the Honourable Steven Kons MHA in his capacity as the Tasmanian Minister for Justice and Workplace Relations and addressed to Ms Merrin MacKay.  It relevantly stated:

“It is with great pleasure that I appoint you as a member of the Anti‑Discrimination Tribunal under Section 12 of the Anti‑Discrimination Act 1998.  Your appointment is for a period of three (3) years commencing on the date of this letter.”

61                  We were told that the letter was the standard letter issued to all appointees to the Tribunal. 

62                  We were also provided with a document dated 19 January 2006 produced by the Department of Premier and Cabinet entitled “Sizing Statement for Government Board”.  The Tribunal was said to be the board in question.  The establishing legislation was the Anti‑Discrimination Act and the responsible agency was the Department of Justice.  The document fixed a “Rate for Member” of $50 per hour.  Relevantly, it described the Tribunal as having been established under the Anti‑Discrimination Act.  It said that “Membership of the Authority [sic]” was determined by the Act, which specified the qualifications required of each member.  It stated that the chair of the Tribunal was currently a magistrate and no remuneration was paid in respect of her position.  It then stated that members were currently paid $58 per hour for preparation, research, sitting fees and decision writing, and that this figure was under review. 

63                  All of this was unsatisfactory.  The Court indicated that it required far greater detail regarding the constitution of the Tribunal and its members in order to be able to resolve the various issues that arose in this application.  Mr Hanks QC, on behalf of the Commonwealth, was unable to assist save for the matters referred to above.  He suggested that perhaps Mr Merralls QC, representing the Attorney‑General of Tasmania intervening, might be in a position to provide further information. 

64                  After making some inquiries, Mr Merralls informed the Court that although s 109 of the Anti‑Discrimination Act made provision for the Governor to make regulations for the purposes of the Act, no such regulations had in fact been made.  He told the Court that inquiries, which he had caused to be made of the Tasmanian Government, had thus far failed to locate any formal written instrument establishing the Tribunal.  He undertook to have further inquiries made. 

65                  On 21 December 2007 the Attorney‑General filed two further affidavits.  The first of these was sworn by Mr David Colegrave, a Clerk of the Executive Council within the Department of Premier and Cabinet of the Government of Tasmania.  Mr Colegrave stated that, on 19 December 2007, he was present when a search was made of Cabinet agenda records relevant to the period of September 1998 to August 2000.  The purpose of the search was to locate any references in those records to a decision by the Minister to establish the Tribunal under s 12 of the Anti‑Discrimination Act.  However, he stated that no such references were found.  

66                  The second affidavit was sworn by Ms Lisa Hutton, Secretary of the Tasmanian Department of Justice.  She stated that, on and after 10 December 2007, she caused a search to be made of records held within her department relevant to the establishment of, and appointment of members to, the Tribunal. 

67                  Ms Hutton said that there were no records of any decision to establish the Tribunal.  Her affidavit did, however, attach a number of documents relevant to the appointment of its members.  These included:

·                    a letter dated 11 May 1999 from the Minister to the acting Chief Magistrate.  That letter stated:

“Section 12 of the Anti‑Discrimination Act 1998 enables me to establish a Tribunal and to appoint a Magistrate as a chairperson of the Tribunal. 

It is my intention to appoint Mrs. Helen Wood as chairperson of the Anti‑Discrimination Tribunal and I am writing to you to seek your concurrence with that course of action.”;

·                    a minute from the director of legislation, strategic policy and information services, Mr Peter Maloney, to the Minister dated 18 June 1999 recommending that expressions of interest for appointment to the Tribunal be called for;

·                    a minute from Mr Maloney to the Minister dated 17 August 1999 recommending that persons who had expressed interest in appointment to the Tribunal be requested to address selection criteria (as agreed to by the Minister on the same date);

·                    a minute from Mr Maloney to the Minister dated 27 September 1999 recommending that the Minister advise who he wished to appoint to the Tribunal;

·                    a letter dated 3 November 1999 from the Minister to Ms Helen Wood purporting to appoint her as a member and chairperson of the Tribunal under s 12, and also stating that she would be advised as to when the Anti‑Discrimination Act was to commence;

·                    letters dated 1 November 1999 from the Minister to each of Mr Andrew Rae, Ms Merrin MacKay, Mr Steven Bishop, Ms Melanie Bartlett, Dr Margaret Otlowski and Ms Viki Rutter purporting to appoint them as members of the Tribunal under s 12 of the Anti‑Discrimination Act.  Again, these letters stated that the Minister would advise each of the addressees as to when the legislation would commence; and

·                    copies of letters of appointment addressed to all current members of the Tribunal, including Ms Wood and five other original members. 

68                  For the sake of completeness, it should be noted that the Court was provided with copies of two relevant Tasmanian Government Gazettes.  The first was Gazette No. 19 947, published on 30 December 1998.  It stated that the Governor assented to the following Bill on 18 December 1998:

“A Bill for an Act to prohibit discrimination and other specified conduct and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to such discrimination and conduct.  Anti‑Discrimination Act 1998 (Act No. 46 of 1998).”

69                  The second was Gazette No. 20 047, published on 8 December 1999, which fixed 10 December 1999 as the day on which the Anti‑Discrimination Act commenced. 

70                  The position that confronts the Court is unsatisfactory.  The powers that the Tribunal exercises, and the terms upon which its members are appointed, are central to this application.  Section 12(1)(a) empowers the Minister to establish a Tribunal. Sections 12(1)(b) and 12(1)(c) empower the Minister to appoint members and a chairperson of the Tribunal respectively.  There is evidence that the Minister has purported to exercise the powers conferred under ss 12(1)(b) and 12(1)(c).  No doubt, by his actions, it may be inferred that he at all times believed that he had established the Tribunal.  However, there is no evidence, apart from Mr Wilson’s bald assertion, that the Minister had, in fact, exercised the power conferred upon him by s 12(1)(a), and actually established the Tribunal. 

71                  It is by no means clear what steps the Minister was obliged to take in order to establish the Tribunal. Plainly, he must at least have turned his mind to the exercise of that power.  Whether he had to go further and record his decision in some way is problematic.  What is certain, however, is that the Anti‑Discrimination Act does not specify any formal requirements in order for the power to be exercised.  It would have been prudent for the Minister to have created an instrument, which would have demonstrated beyond argument that the Tribunal had been established.  However, there is no legal prerequisite for this to be done. 

72                  On the evidence before us, there can be no certainty that the Minister ever did, in fact, focus his mind upon the need to establish the Tribunal under s 12(1)(a) before he exercised the quite separate powers under ss 12(1)(b) and (c) to appoint its members, and its chairperson.  That means the Tribunal’s status remains in doubt. 

73                  In further submissions in reply, the Commonwealth argued that the letters evidencing the appointment of the Tribunal’s members should be read as tacit support for an inference that the Minister must have determined to exercise the power conferred by s 12(1)(a).  There is some force in that submission and I will return to it shortly. 

74                  However, the Commonwealth put forward an alternative submission on the assumption that the Court was not satisfied of the Tribunal’s existence.  It contended that it would be appropriate for the Court to make the declarations, and grant the injunctions sought, but only in relation to the person purporting to constitute the Tribunal in this case, rather than against the Tribunal itself.  In that regard, it should be noted that, in accordance with the usual practice, the member in question filed only a submitting appearance in this matter.

75                  Before turning to the Commonwealth’s primary submission regarding the evidence as to the Minister having exercised the power under s 12(1)(a), there are two other ways in which it may be said that the Tribunal’s existence can be accepted.  The first stems from the presumption of regularity.  The second is what is known as the de facto officer doctrine.

76                  There is, of course, a presumption that judicial, public and official acts and duties have been regularly and properly performed and that persons acting as public officers, or in public capacities, have been regularly and properly appointed.  In other words, so far as appointments affecting the public at large are concerned, proof that someone acted in that capacity is evidence of that person’s due appointment and capacity to act.

77                  At least in civil cases, the presumption is generally regarded as persuasive.  It can operate even against an accused in criminal matters.  However, there is authority which casts doubt upon whether it ever operates to reverse the onus of proof in a criminal case:Dillon v R [1982] AC 484.

78                  In R v Turnbull [1907] VLR 11, Cussen J said (at 15):

“[T]he rule is that all public officers who are proved to have acted as such are to be presumed to have been properly appointed. It is incumbent upon the person who alleges that another, who is acting in an office, has not been properly appointed to prove it … These rules are only particular illustrations of the maxim that, with regard to the exercise of public duties, ‘omnia praesumuntur rite esse acta’.”

79                  In Pertl v Kahl (1976) 13 SASR 433, the appellant was convicted of failing to furnish an income tax return as required by the Deputy Commissioner of Taxation.  He contended that because it was the Deputy Commissioner, and not the Commissioner, who provided him with the notice in writing (when the relevant tax statute stipulated that it be provided by the Commissioner) the prosecution failed. This was because there was no averment of any delegation by the Commissioner to the Deputy Commissioner, and no actual evidence of any such delegation.

80                  The argument did not succeed.  It was held that there was a presumption that there existed the necessary delegation by the Commissioner to the Deputy Commissioner of the power in question, and that the power so delegated had therefore been properly exercised.  In the absence of evidence from the appellant to rebut that presumption, the inference of proper delegation should be drawn.

81                  There are many examples of the operation of this presumption.  See, for instance: McGahey v Alston (1836) 150 ER 731 at 733; Faulkner v Johnson (1843) 152 ER 937; M’Mahon v Lennard (1858) 10 ER 1576 at 1583 and 1588‑9; Jenkin v Attorney‑General of Victoria [1921] VLR 79 at 88; R v Brewer (1942) 66 CLR 535; James v Deputy Commissioner of Taxation (1957) 97 CLR 23 at 34; Meyn v Graham [1969] 1 NSWR 692; Slapjums v City of Knox (No 1) [1978] VR 325; Wright v Bastin (No 2) [1979] VR 329; Watson v Lee (1979) 144 CLR 374 at 382; and United Transport Services Pty Ltd v Evans [1992] 1 VR 240.

82                  In the absence of any evidence to rebut the presumption, and with the added support of such inferences as can legitimately be drawn from the documents tendered in this proceeding, I am satisfied that the Tribunal’s existence has been established. It is not without irony that I note that Mr Nichols, whose complaint to the Tribunal led to the initiation of these proceedings, was moved ultimately to challenge its very existence.

83                  I should add, for the sake of completeness, that I have also considered whether the de facto officer doctrine can be called in further support of my conclusion that the Tribunal was, in fact, established.  In his article “De Facto Officers” (1938) 1 Res Judicatae 285 (republished in S Woinarski (ed), Jesting Pilate (1965) at 229), Sir Owen Dixon explained this doctrine as follows: 

“Under that principle the acts of an officer de facto done in the apparently regular execution of his office have equal force and effect with those of an officer de jure when they concern the rights and duties of the subject.”

84                  Professor Amnon Rubinstein, in his text Jurisdiction and Illegality:  A Study in Public Law (1965), summarised the doctrine as follows (at 205–206):

“Under certain conditions, even the acts of a de facto judge or officer, i.e. a person not legally competent, may acquire validity.  The mere fact that the acts and decisions were made by a tribunal which has not been legally appointed is not sufficient to render them nullities.  If the judge is recognized de facto, his authority can be questioned only in proceedings which directly challenge his appointment or which seek to prevent him from hearing a case.  Any other method of attack is doomed to failure.”

85                  Professor H W R Wade and Mr C F Forsyth, in Administrative Law (9^th ed, 2004), gave the following explanation (at 285–286):

“In one class of cases there is a long-standing doctrine that collateral challenge is not to be allowed:  where there is some unknown flaw in the appointment or authority of some officer or judge.  The acts of the officer or judge may be held to be invalid in law even though his own appointment is invalid and in truth he has no legal power at all.  The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so.  In such a case he is called an officer or judge de facto, as opposed to an officer or judge de jure.”

86                  In Scadding v Lorant (1851) 3 HLC 418, Lord Truro LC explained the rationale behind the doctrine (at 447): 

“You will at once see to what it would lead if the validity of their acts, when in office, depended upon the propriety of the election.  It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might lead also to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.”

87                  The de facto officer doctrine has been applied in a variety of circumstances.  For example:

·                    in Margate Pier Co v Hannam (1883) 3 B & Ald 266, a warrant of distress was held valid although granted by a justice of the peace who had not taken the necessary oath; 

·                    in Waterloo Bridge Co v Cull (1859) 1 El & El 245, a distress levied by a collector of land tax who did not have the residential qualification required for his appointment was upheld;

·                    in Ellis v Bourke (1889) 15 VLR 163, the doctrine was applied where there were irregularities in the appointment of particular members of a tribunal;

·                    in Re Aldridge (1893) 15 NZLR 361, although the appointment of a judge of the Supreme Court of New Zealand had been found to be void (Buckley v Edwards [1892] AC 387), a sentence imposed by that judge was upheld; and

·                    in Jamieson v McKenna (2002) 136 A Crim R 82, a magistrate had understated her age and had passed the statutory retiring age of 65 years.  This was held to be a “clear case” for the application of the doctrine. 

88                  Importantly, however, the de facto officer doctrine has generally presupposed that the office itself was legally recognised (that is, that there was an office de jure), before an officer or judge could be considered to be a de facto officer or judge.  If, as I have indicated, the evidence before the Court (taken in conjunction with the presumption of regularity) is sufficient to establish the Tribunal’s existence, the de facto officer doctrine adds nothing and need not be invoked.  There is after all no dispute about the validity of the appointments made to the Tribunal, assuming always that it exists.

THE ANTI‑DISCRIMINATION ACT

89                  In considering the remaining issues in this application, it is necessary to set out in some detail the scheme of the Anti‑Discrimination Act. 

90                  Section 13 sets out the Tribunal’s functions.  These are to conduct inquiries into complaints and review decisions of the Anti‑Discrimination Commissioner (appointed under s 5) relating to exemptions, withdrawals, rejections and dismissals of complaints. 

91                  Section 16 sets out the grounds upon which discrimination is prohibited.  It lists various attributes which cannot form the basis upon which a “person” discriminates against another.  Included among these attributes is disability (16(k)). 

92                  Section 3 contains various relevant definitions.  The term “person” is defined as including “an organisation”.  The term “organisation” is in turn defined as including a council, a Government department within the meaning of the State Service Act 2000 (Tas), or a State authority.  The term “State authority” means: 

“any body or authority, whether incorporated or not, that is established or constituted under a written law or under the Royal prerogative, which is a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority.”

93                  The term “services” is defined to include services:

“(a)     relating to access to, and the use of, any place that members of the public are permitted to enter; or

(b)       relating to banking, insurance, superannuation or the provision of grants, loans, credit or finance; or

(c)        relating to entertainment, refreshment or recreation; or

(d)       relating to transportation and travel; or

(e)        relating to any profession, trade or business; or

(f)        provided by a State authority or a council; or

(g)       relating to selling, buying, leasing, assigning or disposing of an interest in land.”

94                  Section 4 is pivotal to this application.  It is headed “Act to bind Crown”.  It provides: 

“This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.”

95                  Section 22 sets out areas of activity to which the Anti‑Discrimination Act applies.  Subsection (1)(f) identifies: 

“administration of any law of the State or any State program on any ground specified in section 16(e), (f), (fa), (g), (h), (i) or (j).” 

96                  It is important to note that s 16(k), which sets out disability as an attribute that a person cannot use as grounds for discrimination, is specifically excluded from the purview of s 22(1)(f).  In other words, the Anti‑Discrimination Actexpressly provides that the State of Tasmania can, with legal impunity, discriminate in relation to the administration of its laws or programs on the grounds of disability (and other grounds identified in s 16) but not on the basis of those other grounds set out in s 22(1)(f).  Curiously, the Commonwealth is not given a similar immunity from the operation of the Anti‑Discrimination Act.  The distinction drawn between the position of the State of Tasmania and that of the Commonwealth is a matter upon which the Commonwealth fixed in support of its submission that the Anti‑Discrimination Actdoes not bind the Commonwealth. 

97                  Section 78(1) provides that the Commissioner, or an authorised person, must refer a complaint for inquiry to the Tribunal if the Commissioner or authorised person (a) believes the complaint cannot be resolved by conciliation, or (b) has attempted unsuccessfully to resolve the complaint by conciliation, or (c) believes that the nature of the complaint is such that it should be referred for inquiry. 

98                  Section 85 makes provision for the hearing of an inquiry.  Section 86(1) provides that the Tribunal is to conduct an inquiry with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before the Tribunal permit.  Section 86(2) enables the Tribunal to require a person to attend a preliminary hearing before holding an inquiry.  Section 86A allows the Tribunal to make an order for security for costs. 

99                  Section 87 provides that the Tribunal may take evidence on oath or affirmation and may by written notice require any person to appear before it to give evidence. A person who without reasonable excuse fails to attend before the Tribunal can be fined up to ten penalty units.  The Tribunal is not bound by the rules of evidence and may inform itself on any matter as it thinks fit. It must, however, observe the rules of natural justice.  Section 88 allows the Tribunal to order that the evidence before it be suppressed. 

100               Sections 89 and 90 are of critical importance to this application.  They are as follows:

89.  Orders

(1)       If the Tribunal finds after an inquiry that a complaint is substantiated, it may make one or more of the following orders:

(a)        an order that the respondent must not repeat or continue the discrimination or prohibited conduct;

(b)        an order that the respondent must redress any loss, injury or humiliation suffered by the complainant and caused by the respondent’s discrimination or prohibited conduct;

(c)        an order that the respondent must re‑employ the complainant;

(d)        an order that the respondent must pay to the complainant, within a specified period, an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent’s discrimination or prohibited conduct;

(e)        an order that the respondent must pay a specified fine not exceeding 20 penalty units;

(f)        an order that a contract or agreement is to be varied or declared void in whole or in part;

(g)        an order that it is inappropriate for any further action to be taken in the matter;

(h)        any other order it thinks appropriate.

(2)       If the Tribunal finds after an inquiry that a complaint against a State Service officer or State Service employee is substantiated, it may order the Minister responsible for the Agency in which that officer or employee is employed to exercise any one or more of the powers specified in section 10 of the State Service Act 2000.

(3)       If the Tribunal makes an order under subsection (2), the inquiry held under this Act is taken to be a determination arising from an investigation under section 10 of the State Service Act 2000.

(4)       The Tribunal, on completion of an inquiry, may order the respondent to -

(a)        make reasonable efforts to identify persons entitled to benefit from an order made by the Tribunal if such persons were not personally identified at the inquiry; and

(b)        pay a specified sum to an organisation or fund that is acceptable to the Tribunal if the persons referred to in paragraph (a) cannot be personally identified.

90. Enforcement of orders

(1)       A person, or the Commissioner at the request of a person, may enforce an order made under section 89(1) or an agreement to resolve a complaint by filing the following documents, free of charge, in the Supreme Court:

(a)        in the case of an order, a copy of the order certified by -

(i)         the member who presided over the inquiry, if the Tribunal consisted of more than one person; or

(ii)        the member who constituted the Tribunal, if the Tribunal only consisted of one person;

(b)        in the case of an agreement, a copy of the record made under section 76 and certified by the Commissioner or an authorised person;

(c)        an affidavit stating the extent to which the order or agreement has not been complied with.

(2)       If the documents are filed in accordance with this section, the order made by the Tribunal or agreement is enforceable as if it were an order of the Supreme Court.”

101               Section 93 provides that the Tribunal must, if requested, give reasons in writing for an order made under s 89.  Section 100 provides that a person may appeal to the Supreme Court on a question of law or fact against an order made under s 89(1) or (2).  Section 102 confers immunity upon complainants and witnesses arising out of information or evidence provided to the Tribunal.  Section 103 confers upon the chairperson and members of the Tribunal the same immunity, in exercising any power or performing any function of their respective offices, as a judge of the Supreme Court.  Section 103A provides that the chairperson and members of the Tribunal cannot be compelled to give evidence in any judicial or other proceedings in respect of anything that came to their knowledge in performing their powers and functions under the Act. 

102               Section 105 makes it an offence to make a false or misleading statement in connection with any matter referred to in the Act.  Section 106 creates a series of statutory offences somewhat akin to contempt.  These are punishable by fines of up to ten penalty units.  It is a curious feature of the Act that it deals specifically with vacation of and removal from the office of Commissioner, but is silent regarding members of the Tribunal – see Schedule 1.

ISSUES IN THIS APPLICATION

103               The Commonwealth asserts that the Tribunal has no jurisdiction over Centrelink and therefore cannot deal with Mr Nichols’ complaint. 

104               In support of that submission, the Commonwealth makes the following points:

·                    Mr Nichols’ complaint is against Centrelink;

·                    Centrelink is in fact the Commonwealth; and

·                    the Anti‑Discrimination Act does not, as a matter of construction, purport to bind the Crown in right of the Commonwealth.

105               As previously indicated, the Commonwealth argues that if, contrary to its primary submission, the Anti‑Discrimination Act does, on its proper construction, purport to bind the Commonwealth, it violates Ch III of the Constitution.  That is because it purports to vest the judicial power of the Commonwealth in a body that is not a “court of a State” within the meaning of s 77(iii) of the Constitution. 

106               Mr Nichols joins issue with the Commonwealth.  He submits that the Tribunal is a “court of a State”.  However, he submits that if the Commonwealth is correct, and the Tribunal does not meet that description, it must follow that, as an administrative body, it exercises administrative and not judicial power.  If so, there is no reason why the Commonwealth should not be bound by administrative decisions made pursuant to the Anti‑Discrimination Act. 

107               There is also an intermediate position.  It is advanced on behalf of the Attorney‑General of Tasmania.  He submits that the Anti‑Discrimination Act should, if necessary, be read down so as to permit the Tribunal to exercise all of its statutory powers in relation to the Commonwealth save those that involve enforcement.  He invites the Court to hold that the enforcement provisions under the Act, insofar as they allow orders made by the Tribunal to be enforceable as though they were orders of the Supreme Court of Tasmania, have no application to the Commonwealth.  He submits that all other powers are valid, and can bind the Commonwealth. 

IS MR NICHOLS’ COMPLAINT IN FACT BROUGHT AGAINST CENTRELINK?

108               Mr Nichols filled out a complaint form from the Office of the Anti‑Discrimination Commissioner.  In answer to the question “Who do you believe has discriminated against you?”, he wrote by hand next to “Name/Organisation” “Centrelink Rosny Park (STAFF)”.  He described the “person’s/organisation’s relationship to” him as “Service Provider”.  He attached a handwritten note to his complaint in which he explained in some detail why he was aggrieved.  He focused, in particular, upon a policy that he attributed to Centrelink of not enabling disabled people, such as himself, to set up appointments in advance by telephone.  He criticised Centrelink for insisting that those who attend its offices must stand in line, describing its policy in that regard as “inflexible”. 

109               Mr Hanks submitted that it was plain from the tenor of Mr Nichols’ complaint that his grievance was with Centrelink, and not merely particular members of its staff.  Mr Walters SC, who appeared with Mr Kerr SC on behalf of Mr Nichols, did not accept that submission.  He argued that the nub of Mr Nichols’ complaint was that certain individuals, whom he could not name, had behaved officiously towards him, and had thereby discriminated against him on the basis of his disability. 

110               In my view, Mr Hanks’ submission should be accepted.  The evidence, taken as a whole, leads irresistibly to the conclusion that Mr Nichols was dissatisfied not merely with an act of individual rudeness but with a systemic failure on the part of Centrelink to cater for those who were disabled.  The reference to “staff” in his official complaint was, in my view, simply a convenient way of describing what he regarded as an endemic culture of insensitivity on the part of Centrelink itself.

DOES THE ANTI‑DISCRIMINATION ACTBIND CENTRELINK AND/OR THE COMMONWEALTH?

111               A further preliminary question that must be determined is whether Centrelink is synonymous for present purposes with the Commonwealth.  Mr Hanks submitted that Centrelink, which for whatever reason was never vested with legal personality, is merely a convenient designation for a Commonwealth agency and should be regarded for relevant purposes as the Commonwealth. 

112               The point is important because s 16 of the Anti‑Discrimination Act proscribes specified conduct by a “person”.  If Mr Nichols’ complaint is against Centrelink, and if Centrelink is in fact the Commonwealth, the question will arise whether “the Commonwealth” is a person for the purposes of the Act. 

113               In Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 (“Henderson’s Case”), s 11 of the Defence Housing Authority Act 1987 (Cth) established the Defence Housing Authority as a body corporate capable of holding real and personal property.  The case proceeded upon the basis that the Authority, being an agency or emanation of the Crown, should be regarded for relevant purposes as the Commonwealth. 

114               Mr Hanks submitted that the argument that Centrelink was the Commonwealth (or to put the matter another way, the Crown in right of the Commonwealth) was stronger than the position of the Defence Housing Authority in Henderson’s Case since Centrelink, unlike the Defence Housing Authority, has no separate legal personality.  Mr Walters did not seriously contend otherwise.  I accept Mr Hanks’ submission that Centrelink is, for all practical purposes, the Commonwealth.

115               In Commonwealth v Westwood (2007) 163 FCR 71, an Australian Army officer was prosecuted for two offences arising from his alleged loss of certain classified material. One issue that arose was whether the Director of Military Prosecutions, who (along with the Commonwealth) sought declarations that would have the effect of overturning a decision by the Judge Advocate, was “the Commonwealth” for the purposes of s 39B(IA)(a) of the Judiciary Act 1903 (Cth).  That section confers original jurisdiction upon the Federal Court in any matter in which “the Commonwealth” is seeking an injunction or declaration.

116               Sackville J held that the Director of Military Prosecutions was the Commonwealth for the purposes of that section.  His Honour said (at [52]):

“The expression ‘the Commonwealth’ as used in s 39B(1A)(a) of the Judiciary Act, is not to be construed narrowly.  It includes statutory corporations which are agencies or instrumentalities of the Commonwealth:  ASIC v Edensor 204 CLR 559 at [43], per Gleeson, Gaudron and Gummow JJ; Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136 at [48] (and cases cited there) per McHugh J.  However, it is not only a corporation that can be ‘the Commonwealth’ for the purposes of s 39B(1A)(a) of the Judiciary Act.  In Commonwealth v Lyon (2003) 133 FCR 265 at [21], the Full Federal Court considered it ‘likely’ that the Commissioner of the Australian Federal Police was to be regarded as the Commonwealth for this purpose.”

117               Centrelink is routinely named as respondent in applications for judicial review in this Court. On rare occasion, the chief executive officer of Centrelink is named as respondent rather than Centrelink itself.  Presumably, all of these applications could have been brought against “the Commonwealth” rather than its emanations.  

DOES THE ANTI-DISCRIMINATION ACT BIND THE CROWN IN RIGHT OF THE COMMONWEALTH?

118               The next question is whether the Anti‑Discrimination Act manifests a legislative intent to bind the Commonwealth.  That can only be the result of the Commonwealth being a “person” for the purposes of that Act. 

Common law presumption that Crown not to be bound

119               The starting point in considering this aspect of the Commonwealth’s case lies in the weight to be accorded to the presumption that the Crown is not bound by a statute, unless it is expressly stated in the Act, or it is manifest from its terms that it was the intention of Parliament that the Crown should be bound. 

120               There is a helpful discussion of this presumption in Francis Bennion, Statutory Interpretation (5^th ed, 2008) at pp 206‑212.  As the learned author observes, since an Act is made by the Queen in Parliament for the regulation of subjects, it was always thought that, unless the contrary intention appeared, the Act would not bind the Crown itself.  The Crown might, however, unless the contrary intention appeared, take advantage of an Act if it chose to do so.  This principle, in both its aspects, was known as the doctrine of Crown immunity.

121               In that context, the expression “the Crown” had two meanings, namely, the monarch and the executive.  In the seventeenth century, Parliament established its supremacy over the Crown as monarch, the executive, and, by statute, over the judiciary. These principles are qualified in Australia by the ultimate supremacy of the Constitution.

122               The doctrine of Crown immunity was recognised in the United Kingdom by the Crown Proceedings Act 1947.  In British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32 at 78, Diplock LJ explained the doctrine by pithily observing that “laws are made by rulers for subjects”.

123               In Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 at 61, it was held that the Crown was not bound, unless expressly named in the Act, or it was “manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound”.  The intention could only be inferred where it was apparent from the terms of the statute that its beneficent purpose would be wholly frustrated unless the Crown was bound.  This approach was expressly approved by the High Court on a number of occasions:  see, for example, Bradken Consolidated Ltd v Broken Hill Proprietary Company Ltd (1979) 145 CLR 107.

124               The doctrine of Crown immunity was not limited to the sovereign personally but extended to all bodies and persons acting as servants or agents of the Crown.  In particular, it embraced all elements of the executive from ministers through to Government departments, public servants, members of the armed forces, and other public bodies or persons. These were all regarded as “emanations” of the Crown.

125               Crown immunity meant that the Crown could claim to be exempt from any statute that might otherwise be regarded as imposing obligations upon it.  In the UK, the Crown was not subject to the ordinary regulatory requirements that applied to members of the public at large. These included, for example, compliance with planning laws.  Indeed, in the early days of motor vehicles, cars driven by public servants were held not to be subject to traffic regulations.

126               Bennion comments that where it was intended that the Crown should be subject to the provisions of an Act, the usual practice was, and is, to insert a provision in the Act to the effect that “this Act binds the Crown”.  A corresponding procedure is followed where it is desired that a particular provision, rather than the Act as a whole, shall be binding on the Crown.

127               An intention to bind the Crown may also appear by implication.  However, as previously indicated, the implication would only be drawn if it were necessary to do so:  Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 at 61‑62.

128               In the United Kingdom, Province of Bombayalso held (at 65) that merely because certain provisions of an Act were stated not to bind the Crown, it did not follow that the remaining provisions were intended to do so.  In Lord Advocate v Dumbarton District Council [1990] 2 AC 580, the House of Lords held that the presumption in favour of Crown immunity was not contraverted by the fact that a particular section of an Act expressly stated that that section should not bind the Crown.  Their Lordships noted that such saving provisions were commonly inserted out of an abundance of caution and did not support the inference that the Crown was in other respects intended to be bound by the Act.

129               All this changed in Australia following the High Court’s decision in Bropho v Western Australia (1990) 171 CLR 1, where the Court observed that the presumption in favour of Crown immunity had evolved at a time when “the Crown” was confined to central organs of government.  The reach of government had now become so wide that the presumption should no longer be given the weight it once had. 

130               In State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511, French J summarised the effect of Bropho as follows (at 557):

“The common law presumption that statutes are intended not to bind the Crown remains in force, but as a more flexible guide to construction which may be displaced without the stringent requirements that previously existed.”

131               French J held that the decision in Bradken Consolidation Ltd v Broken Hill Proprietary Company Ltd to the effect that the Trade Practices Act 1974 (Cth) did not bind the Crown in right of the various States should continue to be followed.  That was so notwithstanding Bropho. 

132               In Commonwealth v Western Australia (1999) 196 CLR 392, Gleeson CJ and Gaudron J suggested that the presumption in favour of Crown immunity should be reformulated.  Their Honours stated (at [33]): 

“It would be preferable, in our view, and more consonant with our constitutional arrangements, if the presumption that a statute ‘does not bind the Crown’ were expressed as a presumption that a statute which regulates the conduct or rights of individuals does not apply to members of the executive government of any of the polities in the federation, government instrumentalities and authorities intended to have the same legal status as the executive government, their servants or agents.  For ease of reference, we shall refer to that presumption as the presumption that legislation does not apply to members of the executive government.”

133               In Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334, this reformulated approach appears to have been adopted.  In that case, the High Court held that instead of asking whether an Act was intended to bind the Crown, the test should be whether, as a matter of construction, the reference in the Act to a “person” included members, servants and agents of the executive government.

134               Bropho converts what was traditionally regarded as a full‑fledged presumption into what is now viewed as nothing more than a principle of construction.  Nonetheless, the factors traditionally taken into account in determining whether, as a matter of implication, a particular Act should be regarded as binding the Crown, are likely to be highly relevant in resolving that question of construction.

Acts Interpretation Act 1931 (Tas)

135               The situation in Tasmania regarding the construction of the Anti‑Discrimination Act is complicated by the Acts Interpretation Act 1931 (Tas).  Section 41(1) of that Act provides that: 

“In any Act the expressions ‘person’ and ‘party’ respectively shall include any body of persons, corporate or unincorporated, other than the Crown.” 

[Emphasis added.]

136               In addition, s 6(6) of the Acts Interpretation Act 1931 (Tas)provides that:

“No Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose.”

137               In Kaye v Attorney‑General (Tas) (1956) 94 CLR 193, Williams J stated (at 204):

“In Tasmania the Acts Interpretation Act 1931‑1947, s. 6 (6) provides that no Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose.  The words of an Act could, no doubt, be sufficiently express to derogate from such a right although they did not in terms refer to the prerogative if their operation necessarily or naturally had that effect.”

138               In Re Commissioner of Water Resources [1991] 1 Qd R 549, Byrne J considered s 13 of the Acts Interpretation Act 1954 (Qld), which is expressed in similar terms to the Tasmanian provision.  He stated (at 551): 

“Section 13 does not mean that the Crown cannot be bound where it appears to be a necessary implication that the Crown is to be bound”. 

139               In Pearce and Geddes, Statutory Interpretation in Australia (6^th ed, 2006), the authors conclude (at [5.11]) that these decisions suggest that s 6(6) of the Acts Interpretation Act 1931 (Tas) will be placed on the same footing as the common law presumption as originally formulated before its displacement in Bropho.  They cite BMG Resources Ltd v Municipality of Beaconsfield [1988] Tas R 142 as further authority for the proposition that the effect of s 6(6) is to require clear words to rebut the directive in that section that the Crown is not bound. 

Reasoning in Commonwealth v Wood

140               InCommonwealthvWood(2006)148FCR276,Heerey Jheldthatthe Commonwealth was a “person” for the purposes of the Anti‑Discrimination Act.  His Honour relied in part upon s 4, which, as indicated above, states that the Act is intended to bind the Crown, not just in right of Tasmania, but so far as the legislative power of the Parliament permits, “in all its other capacities”. 

141               Heerey J held that the express reference in s 4 to the Crown being bound meant that the Court was required to consider a different question to that which arose in Bropho.  There the statute had not mentioned the Crown in terms. 

142               His Honour held that two important considerations arose when construing the Anti‑Discrimination Act.  First, because it was beneficial legislation, it ought to be given a generous and liberal construction.  Second, as Brennan CJ had stated in Henderson’s Case (at 427):

“there is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter.”

143               Heerey J stated (at 284) that the drafters of the Anti‑Discrimination Act had been at pains to ensure that the term “person” was not limited to entities which had “legal personality and capacity”.  Instead, the term had been defined to include an “organisation”, which pursuant to its ordinary meaning, extended to all sorts of bodies, such as unincorporated associations, clubs or government departments, that strictly speaking do not have legal personality. 

144               His Honour concluded therefore (at 285) that by s 4:

“Parliament intended to bind the Crown in capacities other than in the right of Tasmania, those capacities must include the Crown's capacity in the right of the Commonwealth.  Subject to the constitutional issues which are discussed below, the Anti-Discrimination Act binds the Commonwealth.  It must necessarily follow that agents of the Commonwealth are bound.”

Commonwealth’s submissions regarding construction of the Anti-Discrimination Act

145               Mr Hanks submitted that Wood was wrongly decided.  He submitted that although s 4 manifested an intention to bind the Crown, including the Crown in right of the Commonwealth, it could do so only according to its terms.  If the Act did not impose obligations upon the Crown, either in a particular manifestation or in relation to a particular activity, the position would not be altered by a general statement that the Act bound the Crown. 

146               Mr Hanks argued that s 4 was intended to do no more than override the presumption in favour of Crown immunity, which had been given statutory force in Tasmania by s 6 of the Acts Interpretation Act 1931 (Tas).  He noted in passing that numerous statutes in Tasmania adopted exactly the same formulation as that contained in s 4.  Many of those Acts could not conceivably impact upon the Commonwealth.  This suggested that the use of provisions such as s 4 had become largely formulaic.

147               According to Mr Hanks, while s 4 may have done away with the traditional presumption in favour of Crown immunity, it did not establish as a matter of construction that the Anti‑Discrimination Act was intended to bind the Commonwealth.  The Act had to be read as a whole and interpreted in accordance with ordinary principles of construction.  He submitted that when read that way, it was clear that the Commonwealth was not intended to be bound. 

148               Mr Hanks supported his construction argument by reference to the following points:

·                    in Tasmanian statutes, the word “person” ordinarily does not include the Crown: s 41(1) of the Acts Interpretation Act 1931 (Tas) (as outlined earlier);

·                    this was manifest from the fact that Tasmanian state agencies had to be brought within the purview of the Anti‑Discrimination Act by terms defined in s 3, namely, “person”, “organisation”and“Stateauthority”.  Absentthesedefinitions,Tasmanian Government entities would not be caught by the Act;

·                    the Tasmanian emanations of the Crown were only bound by the Anti‑Discrimination Act to the extent that they fell within the definitions in s 3 referred to above.  If s 4, which expressly purported to bind the Crown in right of Tasmania, could not achieve that effect without recourse to those s 3 definitions, that section could hardly bind the Commonwealth.  After all, s 4 made no specific reference to Commonwealth entities or authorities; 

·                    this reasoning had twice been accepted by the Tribunal:  see Murphy v Family Court of Australia [2002] Tas ADT 9 at [17]–[18] and Daly & Swanton v ABA [2005] Tas ADT 2 at [17];

·                    in reaching the opposite conclusion in Wood, Heerey J had not engaged with these arguments but had apparently simply assumed that s 4 made it plain that the legislature intended the Anti‑Discrimination Actto bind the Commonwealth;

·                    in Telstra Corporation Ltd v Worthing (1999) 197 CLR 61, the High Court was concerned with whether provisions of the Workers Compensation Act 1987 (NSW) bound the Commonwealth or various emanations of the Crown in right of the Commonwealth.  Section 6(1) of that Act provided as follows:

“This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities”. 

The section was obviously drafted in similar terms to s 4 of the Anti‑Discrimination Act.  In dealing with s 6(1), the High Court stated (at [21]–[23]): 

“As to the 1987 State Act, it contains the express statement in s 6(1), as to the Crown being bound in all its other capacities, which has been set out earlier in these reasons.  However, a central provision of the legislative scheme established by the 1987 State Act is the requirement, under the sanction of a penalty, that an employer, other than a self-insurer, obtain and maintain in force a policy of insurance which complies with the requirements of the legislation (s 155).  Further, a ‘self‑insurer’ who holds a licence granted, as the 1987 State Act originally stood, by the State Compensation Board constituted thereunder, was obliged, under penalty, to maintain with the New South Wales Treasurer a deposit in an amount determined by that Board (s 213).

It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth.  No such indication is to be seen in the 1987 State Act.  To the contrary, s 6(2) states that nothing in that statute renders ‘the Crown’ liable to be prosecuted for any offence.  These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests.

We conclude that the liabilities under the 1987 State Act which are at stake in the present case are not liabilities to which the Commonwealth is subjected. This means that the operation of s 21(3) of the Telecommunications Act is attracted.”

[Citations omitted.]

·                    in Wood, Heerey J had distinguished Telstra v Worthing on the basis that it involved a different legislative regime.  However, this did not pay sufficient regard to the terms of the Anti‑Discrimination Act itself.  For one thing, his Honour had failed to take into account the point made by Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 (at 15):

“legislatures have … deliberately confined the application of anti‑discriminatory legislation to particular fields and particular activities within those fields.”

·                    even if Heerey J had been correct in concluding that s 4 of the Anti‑DiscriminationActmeant that the Crown in right of Tasmania was a “person” for the purposes of that Act, the same reasoning did not assist in determining whether the Act applied to the Commonwealth.  In Commonwealth v Western Australia, Hayne J (with whom McHugh J relevantly agreed) stated (at [228]–[229]):

“But the conclusion that the Mining Act is intended to apply to land that is land of the enacting State is not conclusive of whether the Act is intended to apply to land that is no longer held by the enacting State but is now held by the Commonwealth.  There are other considerations that affect that question.

It is as well to begin the examination of this question from some fundamental propositions.  First, it is well accepted that ‘the Constitution is predicated upon the continued separate existence of the Commonwealth and the States, not only in name, but as bodies politic to which the Constitution proceeds to distribute powers of government’.  It has therefore been held that Commonwealth legislative powers are impliedly restricted so as to preclude their exercise by making laws that single out a State, or the States as a group, so as to impose on them some special burden or to inhibit or impair their continued existence or their capacity to function.  It is, however, clear that subject to that limitation, the Commonwealth may, in the exercise of its legislative powers affect the executive capacity of a State.  The States, on the other hand, do not have specific legislative powers and do not have power to affect the capacities of the Commonwealth executive.”

[Citations omitted.]

·                    Heerey J had erred in his approach to Bropho.  Mr Hanks submitted that despite that case, there was still a presumption that the Crown was not bound by the general words of a statute.  That presumption extended beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation:  Henderson’s Case at 444.  Although the presumption was displaced by s 4 of the Anti‑Discrimination Act, that was all that the section did;

·                    Heerey J asked the wrong question in Wood when (at [26]) he focused upon whether there was a logical reason to impute to the Tasmanian Parliament an intention not to bind the Commonwealth.  The correct question was whether the Act revealed an intention to bind the Commonwealth; and

·                    There were various features of the Anti‑Discrimination Act that made it unlikely that the legislature intended to bind the Commonwealth, including:

a.         the orders that the Tribunal can make pursuant to s 89 (including an order under s 89(1)(c) that the respondent must re‑employ the complainant and an order under s 89(1)(e) that the respondent pay a specified fine) suggest that these were not intended to be available against the Commonwealth.  Otherwise, the question of Commonwealth immunity from State laws would arise;

b.         the obligation imposed upon organisations under s 104 (including ensuring that members, officers, employees and agents are made aware of the Anti‑Discrimination Act and comply with its provisions) are not typically those that a State would impose on another polity within the federation;

c.         the effect of s 22(1)(f) of the Act is to prohibit discrimination in the administration of State laws and programs on some, but not all, of the grounds specified in s 16.  There being no similar limitation in relation to Commonwealth laws and programs, the Commonwealth’s liability under the Anti‑Discrimination Act would actually be far wider than that of the State of Tasmania were the Act to apply to it.  That would fall foul of the principle stated by Gleeson CJ and Gaudron J in Commonwealth v Western Australia (at [40]): 

“… if the legislature has recognised that a statute will or may have a different impact on government property or personnel, it ought not be assumed that it intended to subject the property and personnel of the other polities in the federation to a regime which it recognised was inappropriate in its own case.”

d.         the particular services provided by the Commonwealth through Centrelink are not “services” of a kind that are contemplated by the Anti‑Discrimination Act.  Although the term “services” is defined in s 3 of the Act to include services relating to various types of activity, none of those activities appears to be relevant to a complaint such as that brought by Mr Nichols; and

e.         while paragraph (f) of the definition of services in s 3 refers to services “provided by a State authority or a council”, there is no reference to services provided by the Commonwealth.  In Murphy v Family Court of Australia, the Tribunal had accepted (at [20]):

“the Act (Anti‑Discrimination Act 1998 (Tas)) specifically applies to services provided by a body established under State law (see paragraph (f) of the definition of 'services') but is silent in relation to services provided by a body established under a Commonwealth law, thereby indicating that the prohibitions contained in the Act were not intended to apply to services provided by an officer of a Commonwealth body (including a Registrar of the Family Court).”

Mr Nichols’ submissions regarding construction of the Anti-Discrimination Act

149               Mr Walters submitted that the Anti‑Discrimination Act applied to the Commonwealth for the reasons set out by Heerey J in Wood.  He submitted that, as his Honour had found in that case, such an approach was consistent with the language and intent of the Act. 

150               Mr Walters further submitted that the words “other than the Crown” in s 41(1) of the Acts Interpretation Act 1931 (Tas) did not require a contrary conclusion because s 4(1)(a) of that Act stated that its provisions would not apply in so far as: 

“any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made.”

CONCLUSION

151               Largely for the reasons put forward by Mr Hanks, I consider that the Anti‑Discrimination Act does not, on its proper construction, bind the Crown in right of the Commonwealth.

152               With great respect to Heerey J, I am not persuaded by his Honour’s reasoning to the contrary in Wood.  It is true, as his Honour observed, that those who drafted the Anti‑DiscriminationActwere at pains to ensure that the term “person” was not limited to entities which had “legal personality and capacity”.  Instead, the term was defined to include an “organisation”, which pursuant to its ordinary meaning extended to all sorts of bodies, including unincorporated associations, clubs or government departments.  That does not mean, however, that such “organisations” extend to Commonwealth departments and their agencies.

153               Indeed, the limited scope of s 22(1)(f), which prohibits discrimination in the administration of State laws and programs on the basis of some only but not all of the grounds specified in s 16, provides compelling textual support to the contrary.  It is difficult to conceive how a State anti-discrimination statute could purport to treat the Commonwealth less favourably than the State itself.  If that were its intent, there would at least be serious questions as to the constitutional validity of that statute.  A more plausible explanation is simply that, notwithstanding the apparent width of s 4, the Anti‑Discrimination Act was not intended to apply to or bind the Commonwealth.

154               Heerey J’s proposition that because the Anti‑Discrimination Act is beneficial legislation, it ought to be given a generous and liberal construction is obviously correct.  It does not follow, however, that the ambit of the Act should be distorted to cover a polity within the federation to which the Act is ill adapted to apply.

155               His Honour’s reliance upon the passage from the judgment of Brennan CJ in Henderson’s Case (at 427) seems to me to be misplaced.  In that passage, Brennan CJ stated that there was no reason why the Commonwealth should not be bound by a State law of general application “which governs transactions into which the Crown in right of the Commonwealth may choose to enter”.  There is no question of the Commonwealth having “chosen” to enter into any transaction with Mr Nichols.  What Brennan CJ seems to have had in mind when he formulated this principle was the Commonwealth’s role in ordinary commercial transactions and not its position under the Constitution as the executive of this country.

156               The Anti‑Discrimination Act must be viewed as a whole.  When read in isolation, s 4 lends support to Mr Nichols’ proposition that the Act binds the Commonwealth.  However, that support is, in my view, outweighed by the many indications in the Act that suggest that this is not so.

157               The Commonwealth is therefore entitled to the declaratory relief it seeks.  That, in my opinion, makes it unnecessary in the particular circumstances of this case to deal with the numerous and highly complex constitutional issues that were also argued before us.  These issues, important as they are, were only raised by the Commonwealth as alternatives to fall back on if its primary construction point were rejected.  In some cases, there will be utility in dealing with some or all such alternatives although the matter is in fact determined on the basis of the primary submission advanced.  Having regard to all of the circumstances, including those to which I shall next refer, this is not such a case.

158               I cannot leave these reasons for judgment without expressing my disapproval of the fact that the parties felt it necessary to pursue the matter to the extraordinary lengths that they have.  Mr Nichols is dying.  Mr Walters maintained throughout this proceeding that his client had only three, very modest, requests.  He wanted a suitably worded apology from Centrelink for what he regarded as the rudeness of its staff towards him, an assurance that it would review its procedures regarding disabled people, and the payment of an utterly paltry sum to compensate him for expenses incurred as a result of stress. 

159               I understand that those Centrelink employees, who Mr Nichols claims behaved with insensitivity towards him, may have a different recollection of what occurred on the day in question.  They may feel strongly that no apology of any kind is warranted.  Nonetheless, this is not a case for standing rigidly on principle.  It ought to have been possible, with only a modicum of goodwill and some common sense, to have resolved this matter through mediation.  Large sums of taxpayers’ money have been spent on conducting highly complex litigation when, with a little flexibility, a satisfactory resolution could easily have been achieved.

160               I can understand the Commonwealth’s wish to have the law, as stated in Commonwealth v Wood, reconsidered (although it chose not to appeal the judgment in that matter).  Plainly, it is important to determine whether the Commonwealth is subject to the Anti‑Discrimination Actand other like statutes.  Nonetheless, it is difficult to think of a less suitable vehicle than that of Mr Nichols’ complaint to test the correctness of the reasoning in that case.

Associate:

Dated:         11 June 2008

REASONS FOR JUDGMENT

KENNY J

Introduction

161               On 19 July 2006, Mr R J Nichols filed a complaint pursuant to the Anti‑Discrimination Act with the Tasmanian Anti‑Discrimination Commissioner in respect of conduct of Centrelink staff.  Mr Nichols, who is the second respondent in this proceeding, alleged that Centrelink discriminated against him on the basis of disability in the provision of “facilities, goods and services”.  The disability is said to arise from the fact that Mr Nichols has terminal prostate cancer and, as a result, is in constant pain. 

162               Mr Nichols’ complaint arose out of Centrelink’s dealings with him two days earlier, when he attended Centrelink’s Customer Service Centre in Rosny Park (a suburb of Hobart).  Mr Nichols stated that he attended the Centre on 17 July 2006, in response to a letter in which Centrelink sought information relating to the Pensioner Education Supplement then being paid to him.  Mr Nichols has claimed that Centrelink has a policy against allowing appointments to be booked by telephone in advance, even in the case of disabled persons.  In his complaint to the Anti‑Discrimination Commissioner, Mr Nichols stated that:

1.                  When he arrived at the Centre, he was confronted with a long line of people “from the counter right out to the front door” waiting to speak with counter staff.  He endeavoured to explain to a counter assistant standing alone at the counter that he was unable to stand in line on account of the pain due to his cancer. 

2.                  The counter assistant told him that he would have to wait in line with the others and that the computers were down at the Centre and probably neighbouring Centres.  She was unable to help him further and he asked to speak with her supervisor.

3.                  The supervisor reiterated that Mr Nichols would have to queue to speak to counter staff, although he could sit in a chair whilst he was doing so.  She was unable to tell him how long he might expect to wait.  In the circumstances, Mr Nichols decided to leave.

Mr Nichols believes that he was callously treated by Centrelink staff in a way that discriminated against him on account of his disability.  He has stated that he suffered deep anxiety and humiliation in consequence of this treatment.

163               The reasons for judgment of Goldberg J, which I have read in draft, set out the relevant facts and procedural history.  I gratefully adopt his Honour’s account.  As the reasons of Goldberg J record, the Anti‑Discrimination Commissioner referred Mr Nichols’ complaint to the Tasmanian Anti‑Discrimination Tribunal on 15 February 2007 for inquiry pursuant to s 78 of the Anti‑Discrimination Act.  The Commissioner identified the unresolved issue as being:

“Whether Mr Nichols was discriminated against (directly or indirectly) on the basis of a disability in the manner he was attended to by staff at the Centrelink Rosny Park Customer Service Centre on 17 July 2006.”

Centrelink subsequently objected to the jurisdiction of the Tribunal and the Commonwealth of Australia instituted a proceeding in this Court challenging the jurisdiction of the Tribunal to deal with the complaint.  For the reasons stated hereafter, I would uphold the Commonwealth’s challenge and hold that the Tribunal has no jurisdiction to deal with Mr Nichols’ complaint. 

164               In the course of the first day’s hearing, on 20 November 2007, the parties explored the possibility of resolving the underlying dispute by mediation.  Mr Nichols, by his counsel, subsequently made an open offer in Court.  On or about the recommencement of the hearing on 7 December 2007, Centrelink, through its legal services manager, wrote a letter to Mr Nichols in which it purported to set down a staff member’s recollection of the events in question, and to give data on the average customer waiting time at the Rosny Park Service Centre as at 17 July 2006 and the system at a neighbouring Service Centre.  The letter affirmed that “customers with special needs can make arrangements with Centrelink for alternative servicing options”.  The letter advised that, although Centrelink did not accept that it discriminated against Mr Nichols, it took his concerns seriously and was “in the process of referring [his] experiences to the Centrelink Disability Customer Service Reference Group with a request that it consider whether any change in procedures is required”.  The letter also said:

“Centrelink is sorry that, when you attended at the Centrelink Rosny Park Customer Service Centre on 17 July 2006, you experienced both physical pain and acute embarrassment.  Centrelink deals with tens of thousands of customers with disabilities weekly and has arrangements in place to deal with them appropriately.  To the extent that you felt our level of service was inadequate when you attended Centrelink’s Rosny Park Customer Service Centre on 17 July 2006, Centrelink apologises unreservedly to you.

Nevertheless, because it is a part of the Commonwealth, Centrelink’s position is that the appropriate way (and the only legally possible way) to resolve any concerns you have that Centrelink may have discriminated against you is through the procedures provided by Commonwealth legislation (in particular, the Disability Discrimination Act and the Human Rights and Equal Opportunity Commission Act), not by way of a complaint under the Tasmanian Anti-Discrimination Act.

If you have difficulties accessing services through our Customer Service Centre network, we are happy to discuss other options which are available that better suit your needs. …”

The case continued nonetheless.  The Commonwealth stated that, if successful, it would not seek costs against Mr Nichols.

Questions for determination

165               The Commonwealth’s argument was made at a number of levels.  At the first level, the Commonwealth argued that, since neither it nor Centrelink (as its emanation) was a “person” for the purposes of the Anti‑Discrimination Act, it was incapable of being the subject of complaint or inquiry under the Anti‑Discrimination Act:  see Ground 2.1 of the Commonwealth’s application.  At a second level, the Commonwealth argued that Mr Nichols’ complaint was incompetent because the conduct of which he complained was not in connection with the provision of “facilities, goods and services” within the meaning of the Anti‑Discrimination Act: see Ground 2.2. At a third level (see Ground 2.3), the Commonwealth submitted that, s 39 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) did not invest the judicial power of the Commonwealth in the Anti‑Discrimination Tribunal and, in consequence, the Tribunal could not exercise judicial power over the Commonwealth.  A foreshadowedargument–that,byreason of s 109 of the Constitution, the Anti‑Discrimination Act was invalid to the extent of any inconsistency with the Disability Discrimination Act 1992 (Cth) – was not pursued:  see Ground 2.4. 

Some legislative framework – Anti‑Discrimination Act, s 16

166               In the context of the Tasmanian legislation, the question whether Mr Nichols was the subject of unlawful discrimination arises principally because of s 16 of the Anti‑Discrimination Act.  Section 16, which is a central provision of the Anti‑Discrimination Act, provides that “[a] person must not discriminate against another person on the ground of” any listed attribute, including “disability”:  see s 16(k) (emphasis added).  Other attributes include race, age, gender, marital status, industrial activity, political activity and religious activity.  The Anti‑Discrimination Act applies to both direct and indirect discrimination:  see ss 14 and 15.  Other provisions of the Anti‑Discrimination Act prohibit a person from engaging in what might loosely be described as related conduct:  see ss 17‑21. 

167               The Anti‑Discrimination Act imposes additional obligations on an “organisation” (as defined in s 3).  Thus, s 104(1)(a) provides that an organisation is to ensure that its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which the Anti‑Discrimination Act relates.  Subsection 104(2) provides that an organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct.  Pursuant to s 104(3), an organisation in breach of s 104 is liable for any contravention of the Anti‑Discrimination Act committed by its members, officers, employees and agents. 

168               Notwithstanding the apparent breadth of s 16 (and like provisions), s 22 makes it clear that the prohibition against discrimination applies only in certain areas of activity – the provision of facilities, goods and services, employment, education and training, accommodation, membership and activities of clubs; and, in the case of discrimination on the grounds specified in s 16(e), (f), (fa), (g), (h), (i) and (j), in the administration of a law of the State or a State program, and awards, enterprise agreements or industrial agreements.

Ground 2.1 – Is the Commonwealth a “person” for Anti‑Discrimination Act purposes?

169               As I have said, s 16(k) of the Anti‑Discrimination Act prohibits a “person” from discriminating against another on the ground of disability.  The Commonwealth argued and, for the reasons that follow, I accept that:  (1) Centrelink is properly regarded as part of the Commonwealth; and (2) the Commonwealth is not a “person” for the purposes of the Anti‑Discrimination Act. 

170               By virtue of the Commonwealth Services Delivery Agency Act 1997 (Cth) (“the CSD Act”), Centrelink is properly regarded as part of the Commonwealth.  Indeed, Mr Nichols did not contest this proposition.  Centrelink is an agency established by the CSD Act.  Specifically, s 6 of the CSD Act establishes the “Commonwealth Services Delivery Agency” and provides that it may be known as Centrelink:  see s 6(1) and (3).  In addition, s 6(2) provides that Centrelink comprises the Chief Executive Officer (see ss 3 and 29) and the employees (see ss 3 and 35(1)).  Centrelink is given no independent legal personality.  Centrelink’s function is “to assist the Chief Executive Officer in the performance of the Chief Executive Officer’s functions” (s 6A), which include “the provision of Commonwealth services in accordance with service arrangements” (s 8(1)(a)).  The CSD Act, in s 3, defines a “Commonwealth service” as “a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise”.  Pursuant to s 7, the Chief Executive Officer of Centrelink enters into arrangements with the principal officers of Commonwealth authorities (see s 3) for the provision of Commonwealth services.  The conclusion that Centrelink is a part of the Commonwealth is inescapable.

171               In responsetotheCommonwealth,Mr Nicholsnotedthathiscomplaintwas about the conduct of “Centrelink Rosny Park (staff)”.  He contended that: (1) s 16 of the Anti‑Discrimination Act applies to Centrelink because, by virtue of s 4, the Anti‑Discrimination Act binds the Commonwealth, which is thus to be regarded as a “person” for these purposes; (2) s 16 of the Anti‑Discrimination Act applies to Centrelink, because Centrelink is an “organisation” and, by virtue of the definitions in s 3, is therefore a “person” within the meaning of the Anti‑Discrimination Act, which, by virtue of s 4, is bound by the Anti‑Discrimination Act; and (3) s 16 of the Anti‑Discrimination Act applies to the conduct the subject of complaint since it was done by natural persons, albeit they were also acting as Centrelink staff. 

172               My reasons for rejecting the last‑mentioned contention can be briefly stated.  Plainly enough, the discrimination that Mr Nichols alleged could only be done by individuals, but the significance of this conduct, assuming his allegations to be true, lay in the circumstance that it was done by Centrelink staff in ordinary dealings with a customer at a Centrelink office.  Moreover, Mr Nichols included in his complaint a complaint about Centrelink’s appointment procedure, which precluded a customer from making an appointment by telephone.  Having regard to these circumstances, it is clear enough that Mr Nichols’ complaint is properly characterised as a complaint about Centrelink, rather than about the individuals through which it necessarily acted.

173               The first two of Mr Nichols’ contentions (see [171] above) are properly seen as different ways of saying much the same thing.Both depend on s 4 of the Anti‑Discrimination Act.  It is plain enough that, as senior counsel for the Commonwealth frankly conceded, s 4 of the Anti‑Discrimination Act constitutes the most significant indication that the State legislature intended that s 16 apply to the Commonwealth and, therefore, to Centrelink as part of the Commonwealth.  Section 4 provides:

“This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.”

Section 4 has the effect that, to the extent constitutionally permissible, the Anti‑Discrimination Act binds the Crown in its numerous capacities, including in right of the Commonwealth.  Used in this way, “binds” would ordinarily indicate that the Crown, in this case in right of the Commonwealth, is subject to any obligation created by the Anti‑Discrimination Act, which applies in terms to the Commonwealth:  compare Oxford English Dictionary’s definition of “bind” (16. trans. To oblige or constrain with legal authority. … 17. To subject to a specific legal obligation …).

174               Naturally enough, counsel for Mr Nichols argued that s 4 provides a complete answer to the proposition that the Commonwealth is incapable of being the subject of complaint or inquiry under the Anti‑Discrimination Act.  I accept that, if the Commonwealth is not a “person”, then, the reference in s 4 to binding the Crown “in all its other capacities” has limited utility, if any.  I also accept that, if the Anti‑Discrimination Act is viewed as a whole, this consideration is overborne by other considerations, as explained hereafter.

175               In reaching this conclusion, I am mindful that Goldberg J in this case and Heerey J in Commonwealth v Wood (2006) 148 FCR 276 (“Wood”) have taken a contrary view.  In reaching the contrary view in Wood, Heerey J referred, at 283‑285, to the beneficial character of the State legislation and to the “highly pervasive presence” of the Commonwealth in Tasmania, in this latter regard observing that (at 283):

“Apart from the Tasmanian capacity, the Crown’s capacity in the right of the Commonwealth is, of all the Crown’s capacities, the one most likely to be exercised in Tasmania, as the Tasmanian Parliament would be well aware. … There is no logical reason to impute to the State Parliament an intention not to bind the Commonwealth, insofar as it has the power to do so, in relation to this important area of social policy.

Turning to the text of the [Anti‑Discrimination Act], since s 4 provides expressly that the Crown in the right of Tasmania is bound, the Crown, at least in that capacity, must be a ‘person’ for the purposes of s 16.   …

I conclude therefore that as, by s 4, Parliament intended to bind the Crown in capacities other than in the right of Tasmania, those capacities must include the Crown’s capacity in the right of the Commonwealth.” 

But for the considerations to which I now turn, I would agree.

176               First, to appreciate the probable intended scope and operation of s 4 of the Anti‑Discrimination Act, it is necessary to dwell briefly on the general law and statutory context in which s 4 was enacted.  Prior to Bropho v Western Australia (1990) 171 CLR 1 (“Bropho”), the courts in this country applied what was termed a rule of statutory construction that the Crown was not bound by statute unless it appeared by express words or necessary implication that it was intended that it should be:  see Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 at 167; Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 116, 127, 134‑136; and China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 187, 199‑200, 218, 221‑222, 240, each of which purported to apply Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 (“Province of Bombay”).  Further, drawing on Province of Bombay,at 63,the courtsgenerally accepted that there could be no necessary implication that the Crown was intended to be bound unless “it was apparent from [the statute’s] terms that its beneficent purpose must be wholly frustrated unless the Crown were bound”. 

177               Subsection 6(6) of the Acts Interpretation Act 1931 (Tas) supplemented this understanding of the general law, by providing that “[n]o Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose”.  Consistently with this, s 41(1) of the same Act also provides that “[i]n any Act the expressions ‘person’ and ‘party’ respectively shall include any body of persons, corporate or unincorporated, other than the Crown” (emphasis added).  A function of s 4 of the Anti‑Discrimination Act is to meet the condition set down in s 6(6) of the Acts Interpretation Act 1931 (Tas).

178               Of course, the judicial understanding of the nature of the so‑called “rule of statutory construction” changed following Bropho, in which Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ determined that there was “no basis in principle for unqualified insistence upon the rule as an inflexible one, with the stringent implications which recent cases have accorded it” and that “a legislative intention to bind the Crown may be disclosed notwithstanding that it could not be said that that intention was ‘manifest from the very terms’ of the statute or that the purpose of the statute would otherwise be ‘wholly frustrated’” (at 21).  Thus, if such a legislative intention were disclosed in “the provisions of the statute – including its subject matter and disclosed purpose and policy – when construed in a context which includes permissible extrinsic aids”, then that legislative intention was to be given effect:  see Bropho at 21‑22.  I mention this change in judicial understanding not only for the sake of completeness.  Also the joint judgment in Bropho demonstrates that, in determining whether or not the Tasmanian Parliament intended that the obligation to which s 16 gives rise applies to the Crown in right of the Commonwealth, it is necessary to consider the Anti‑Discrimination Act in its entirety, including its subject matter and purpose. 

179               The Anti‑Discrimination Act does not expressly state its object, but its general purpose is stated in its long title as:

“An Act to prohibit discrimination and other specified conduct and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to such discrimination and conduct.”

Plainly enough, the Anti‑Discrimination Act is intended to establish a regime to dissuade, discourage and prevent discrimination on the bases stated in s 16 in the fields of activity described in s 22 (as well as other like conduct).  Thus, the functions of the Anti‑Discrimination Commissioner include educative, investigative and conciliatory functions (s 6), and the prohibition in s 16 is central to the statutory regime.  So too is the dispute resolution regime in Pt 6 of the Anti‑Discrimination Act, which provides for the making of complaints, their acceptance, rejection, investigation and resolution.  The legislation is self-evidently remedial and beneficial and therefore deserves a liberal construction:  see IW v City of Perth (1997) 191 CLR 1 (“IW v City of Perth”) at 12.

180               If Centrelink, as part of the Crown in right of the Commonwealth, is not properly characterised as a “person” to whom s 16 applies, then Centrelink cannot be bound by s 16.  The remedial character of the Anti‑Discrimination Act favours a broad construction of the word.  The important point is, however, that the Anti‑Discrimination Act can only bind the Crown (within the meaning of s 4) according to its terms, the construction of which depends as much on a consideration of the details of its provisions as a whole as on a general orientation to the construction process. 

181               Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 (“Telstra Corporation Ltd v Worthing”) is broadly illustrative of this latter proposition and demonstrates that provisions like s 4 of the Anti‑Discrimination Act do not always establish a legislative intention on the part of a State Parliament to subject the Commonwealth to the obligations to which its enactment gives rise.  That case in part concerned the Workers Compensation Act 1987 (NSW), which contained a provision – s 6(1) – closely resembling s 4 of the Anti‑Discrimination Act.  Section 6(1) stated that the Act “binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities”.  At that time Telstra Corporation was not subject to any liability under State law to which the Commonwealth was not subject.  In this context, a question arose as to whether the liabilities created by the State Act were liabilities to which the Commonwealth was subject.  Notwithstanding the express terms of s 6(1), the High Court held that the central requirement of the State Act – that an employer obtain and maintain a policy of insurance complying with the legislation – did not apply to the Commonwealth.  In reaching this conclusion, the Court referred to other provisions of the State Act pursuant to which non‑compliance with the legislative scheme attracted penalties.  The Court also noted s 6(2), which was to the effect that nothing in the Act rendered the Crown liable to be prosecuted for any offence.  The Court held (at 75) that the State Act did not apply to the Commonwealth because there was no clear indication that the penal provisions, which it thought central to the structure on which the regulatory scheme rested, attached to the Commonwealth.  The Court said (at 75):

“It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth.  No such indication is to be seen in the 1987 State Act.  To the contrary, s 6(2) states that nothing in that statute renders ‘the Crown’ liable to be prosecuted for any offence.  These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests.”

182               In determining whether the word “person” was intended to embrace the Commonwealth, the parties did indeed refer to various other provisions of the Anti‑Discrimination Act as indicative of the legislative intent.  Besides s 4, Mr Nichols relied on the definition of “person” in s 3 to support the proposition that the Anti‑Discrimination Act applies to Centrelink.  Definitions in s 3 state that “person” includes an organisation.  Having regard to the CSD Act, especially ss 6, 29 and 35, and to the affidavit of Mr BC Bartl of 15 November 2007, which was not subject to objection, I accept that current English usage makes it possible to characterise Centrelink as an “organisation”:  compare Oxford English Dictionary’s definition of “organisation”(“4. a. An organized body of people with a particular purpose, as a business, government department, charity, etc.”).  “Organisation” is, however, defined in s 3, to include “a council, a Government department within the meaning of the State Service Act 2000 (Tas) or a State authority”.  The definition of “State authority” in s 3 would cover virtually every other body besides a department exercising the State’s executive power.  “State authority” is defined to mean:

“… any body or authority, whether incorporated or not, that is established or constituted under a written law or under the Royal prerogative, which is a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority.”

In this definition, “Governor” and “Minister” respectively refer to the Governor of Tasmania and a Minister “in and for” the State of Tasmania:  see Acts Interpretation Act 1931 (Tas), ss 27 and 43(1).

183               Although the definition of “organisation” in s 3 is non‑exhaustive, the specific reference to State authorities, State departments and local government, and the absence of any reference to the departments or authorities of any other bodies politic, is indicative of the fact that the authorities of other bodies politic, notably the Commonwealth, are not to be classed as “organisations”, and therefore “persons”, for the Anti‑Discrimination Act.  Further, the fact that the Tasmanian Parliament has considered it necessary to state expressly that “person” is to include an “organisation”, whilst “organisation” is to include bodies that are properly to be regarded as part of the Crown in right of the State of Tasmania indicates that the State Parliament was not relying on s 4 to extend the meaning of “person” to the Crown, whether in right of the State of Tasmania or in any other capacity.  On the contrary, in the case of State departments and authorities, the State Parliament sought to extend the meaning of “person” by the inclusion of express references to them through the definitions of “person”, “organisation” and “State authority”.  Moreover, the fact that the State Parliament has made no equivalent provision for Commonwealth departments and authorities suggests that “person” in s 16 and elsewhere in the Anti‑Discrimination Act is not intended to cover any part of the Crown in right of the Commonwealth, such as Centrelink.

184               The impression that, notwithstanding s 4, the Tasmanian Parliament intended to limit the coverage of the Anti‑Discrimination Act to the Tasmanian body politic is fortified by other aspects of that Act.  The foremost consideration flows from the fact that s 16 of the Anti‑Discrimination Act does not prohibit discrimination by any person wherever it might be committed within the State of Tasmania.  On the contrary, s 16 prohibits discrimination only in activity in connection with the matters identified in s 22(1), which, by virtue of s 22(1)(f), includes “administration of any law of the State or any State program on any ground specified in s 16(e), (f), (fa), (g), (h), (i) or (j)” – that is, on the grounds of gender, marital status, relationship status, pregnancy, breastfeeding, parental status or family responsibilities (emphasis added).  This limitation of the prohibition of discrimination to activity in connection with specific matters is a critical part of the State’s statutory regime.  The fact that s 22(1)(f) of the Anti‑Discrimination Act refers only to the administration of State laws and programs (that is, to laws and programs in and of the State of Tasmania:  Acts Interpretation Act 1931 (Tas), s 27(b)) also indicates that, in the field of governmental administration of laws and programs, the Tasmanian Parliament was concerned only with discrimination on the part of Tasmania and, even, here, only with respect to a small subset of the grounds for which s 16 provides. 

185               The fact that the Parliament’s focus is on the activity of the State is also evident with regard to s 22(1)(c) of the Anti‑Discrimination Act, which applies the prohibition in s 16 to “discrimination … by or against a person engaged in, or undertaking any, activity in connection with … provision of facilities, goods and services”.   As noted above, this was the provision invoked by Mr Nichols in this complaint.  The definition of “services” in s 3 includes services relating to various kinds of activity and, in (f), “provided by a State authority or a council” (emphasis added):  see [182] above.

186               Having regard to s 22(1)(f) of the Anti‑Discrimination Act, it seems tolerably clear that the Tasmanian Parliament considered that it would be inappropriate to regulate the State’s administration of its laws and programs in the same way as other regulated activities.  In this regard, the comments of Gleeson CJ and Gaudron J in Commonwealth v Western Australia (1999) 196 CLR 392 may assist, although the question in that case was quite different from the present.  Gleeson CJ and Gaudron J commented (at 411‑412) that, if the enacting legislature recognised that it would be inappropriate for the legislation to apply to government property or personnel in the same way as it applies to individuals, then “it may be inferred from its silence with respect to other polities in the federation that it was not intended that it should apply to their property or personnel”.  Their Honours explained (at 412) that:

“That is because, if the legislature has recognised that a statute will or may have a different impact on government property or personnel, it ought not to be assumed that it intended to subject the property and personnel of the other polities in the federation to a regime which it recognised was inappropriate in its own case.”

The Tasmanian Parliament recognised that the administration of State laws and programs should not be subject to the same regime as applied to other regulated activities.  Since it said nothing of other bodies politic, such as the Commonwealth, it can be inferred that it did not intend them to be “persons” for the purposes of s 16 of the Anti‑Discrimination Act and related provisions.

187               Furthermore, I accept, as the Commonwealth submitted, that there are two other aspects of the statutory scheme that reinforce the conclusion that the Tasmanian Parliament did not intend the Commonwealth (and hence Centrelink) to be regarded as a “person” for s 16 purposes.  First, there is the nature of the orders that the Tribunal can make if it finds a complaint substantiated.  Amongst other things, s 89(1) provides that, in this circumstance, the Tribunal may make “an order that the respondent must pay a specified fine not exceeding 20 penalty units” (s 89(1)(e)).  Section 90 (discussed below) provides a mechanism for enforcement of such an order.  It may be recalled that the High Court in Telstra Corporation Ltd v Worthing considered that the penalty provisions were indicative of the fact that, in the absence of “the clearest indication of a legislative purpose”, the Commonwealth was not subject to the relevant statutory regime:  see [181] above.  As the foregoing discussion shows, this “clearest indication” is absent from the Anti‑Discrimination Act. 

188               Furthermore, s 89(1) of the Anti‑Discrimination Act provides that, if the complaint is substantiated, then, amongst other things, the Tribunal may make “an order that the respondent must re‑employ the complainant”:  compare also s 104, referred to at [167] above.  The very character of these provisions would indicate that, all things being equal, the State Parliament should not be taken to have intended them to apply to another federal body politic. 

189               For the foregoing reasons, I would conclude that Centrelink, as part of the Commonwealth, is not a “person” for the purposes of the Anti‑Discrimination Act and, in particular, for the purposes of ss 16 and 62(1)(b) of the Anti‑Discrimination Act.  Nor is Centrelink, as part of the Commonwealth, an “organisation” for the purposes of the Anti‑Discrimination Act. 

Ground 2.2 – Was Centrelink engaged in the provision of facilities, goods and services?

190               In view of the above discussion, it is perhaps unnecessary to deal with this question.  But since it was argued, I do so briefly.

191               As we have seen, Mr Nichols’ complaint was made against Centrelink allegedly “in connection with” the “provision of facilities, goods and services”, although no question arises with respect to “facilities” or “goods”.  Let it be assumed that Mr Nichols attended Centrelink’s Customer Service Centre “in order to clarify questions from Centrelink in respect of one of the ‘range of services’ it offered”:  see Mr Nichols’ written submissions at [31].  Absent any specific feature of the Anti‑Discrimination Act, it may readily be accepted that Mr Nichols’ complaint related to “services” provided by Centrelink.  This is consistent with IW v City of Perth, in which the High Court agreed that the word “service” as used in the Equal Opportunity Act 1984 (WA) had a wide and ordinary meaning:  IW v City of Perth at 11, 13 per Brennan CJ and McHugh J, at 23 per Dawson and Gaudron JJ, at 27 per Toohey J, at 41‑43 per Gummow J, at 70 per Kirby J. 

192               IW v City of Perth concerned the refusal by a local council to give planning permission for a drop-in centre for people with HIV.  Whilst the members of the High Court agreed on the general approach to construing anti‑discrimination legislation and the word “services”, they disagreed about whether there had been a refusal of a service and, if there had, how the service should be characterised.  No similar difficulty in characterisation arises in the present case, which does not involve the exercise of any deliberative function or discretion.

193               A difficulty does, however, arise in this case, because of the definition of “services” in s 3.  Although the definition is non‑exhaustive, the specific inclusion of services (in (f)) – provided by a State authority or a council – in the context in which it appears supports the inference that the Parliament did not intend to include services provided by the Commonwealth in the “services” to which s 22(1)(c) refers.  This provides a separate basis for the conclusion that the Tribunal is unable to deal with Mr Nichols’ complaint against Centrelink.

Ground 2.3 – Is the Tribunal competent to determine Mr Nichols’ complaint?

194               Again, in view of the foregoing, it is on one view unnecessary to discuss this question.  I deal with it, however, because it represents a large part of the argument addressed to the Court and raises matters of general significance.  Furthermore, although I would answer the questionwhethertheCommonwealthis a“person”forthepurposesoftheAnti‑DiscriminationAct in the negative, the arguments supportive of the contrary conclusion are not unattractive and the competing considerations are, therefore, finely balanced. 

195               Put simply, the question in this part of the case is whether the Tribunal can exercise judicial power in relation to a complaint made against the Commonwealth.  The question arises because of the limitations to which the provisions of Ch III of the Constitution are said to give rise and the nature of the Tribunal as disclosed by the Anti‑Discrimination Act.  The question does not arise unless Mr Nichols’ complaint is properly characterised as a complaint:  (1) against the Commonwealth or a person sued on behalf of the Commonwealth within s 75(iii) of the Constitution; and (2) against a “person” or “organisation” within the meaning of the Anti‑Discrimination Act.  Hence, the following discussion proceeds on the assumption that, contrary to the conclusion stated above, Centrelink, though part of the Commonwealth, is a “person” within the meaning of the Anti‑Discrimination Act.

196               The Commonwealth relies particularly on the terms of ss 71, 75(iii) and 77 of the Constitution (all within Ch III) and s 39 of the Judiciary Act, as well as the contemporary case law, in support of the proposition that the Anti‑Discrimination Tribunal cannot exercise jurisdiction over the complaint between it and Mr Nichols. 

197               Section 71 of the Constitution relevantly states:

“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 …” 

[Emphasis added.]

With respect to any matter mentioned in ss 75 and 76 of the Constitution, s 77 provides that 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.”

[Emphasis added.]

Section 75 confers original jurisdiction on the High Court in “all matters” of the kind that it describes, including in all matters “(iii) [i]n which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party”.  Section 76 empowers the Parliament to confer original jurisdiction on the High Court in certain other matters.  As s 77 indicates, s 75(iii) provides in this way for an aspect of federal jurisdiction.

198               The Parliament exercised the power conferred by ss 76(i), 77 (ii) and 77 (iii) when it enacted ss 38 and 39 of the Judiciary Act.  Section 39 of the Judiciary Actis best read with s 38.  Section 38 provides that, subject to provisions that are presently immaterial, “the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States” with respect to various matters, including “(c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State”.  This latter field is a more limited one than in s 75(iii) of the Constitution, which extends to matters in which the Commonwealth, or a person suing or being sued on its behalf, is a party.  Section 39 continues that, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of s 38, the jurisdiction of the High Court “shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section”.  Section 39(2) relevantly provides that:

“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 …”

[Emphasis added.]

199               That is, ss 38 and 39(1) deprive the courts of the States of such federal jurisdiction they might otherwise have, whilst s 39(2) gives back that part of federal jurisdiction that is not the subject of s 38.  In the present case, if the Tribunal were exercising judicial power in determining Mr Nichols’ complaint against the Commonwealth, it would be exercising the judicial power of the Commonwealth because the matter falls within s 75(iii) of the Constitution: see the discussion below.  That is, it would be engaged in an exercise of federal jurisdiction, which is only exercisable by a court of a State pursuant to s 39(2) of the Judiciary Act. 

Submissions of the parties

200               In order to understand the nature of the dispute between the parties at the constitutional level, it is helpful to set out the arguments they, and the Attorney‑General for the State of Tasmania intervening, advanced.  The Commonwealth’s argument was premised on the proposition (which I accept:  see below) that the only judicial power that can be exercised in relation to the Commonwealth is the judicial power of the Commonwealth. 

201               The Commonwealth argued as follows –

1.                  A tribunal cannot be a “court of a State” for the purposes of ss 71 and 77(iii) of the Constitution unless it is independent and impartial.

2.                  That a tribunal is independent and impartial must appear from its constitutive statute or from associated legislation governing appointment to the tribunal, including tenure and remuneration.

3.                  The Tribunal is not independent and therefore cannot be a “court of State” because its members can be removed at any time without cause.

4.                  In the alternative, the Tribunal is not independent and cannot be a “court of a State” because, when regard is had to the Anti‑Discrimination Act, its non‑court‑like characteristics outweigh its court‑like characteristics.

5.                  Further, it is a necessary implication from Ch III that a State cannot confer on a body that is not a “court of a State” within s 77(iii) judicial power in relation to any matter in ss 75 or 76 of the Constitution since all such matters necessarily involve the judicial power of the Commonwealth, and such judicial power can be exercised only in accordance with Ch III of the Constitution.

6.                  Further, s 39 of the Judiciary Act exhaustively states the matters in ss 75 and 76 with respect to which State bodies may exercise federal jurisdiction.

7.                  Further, a State tribunal (which is not a “court of a State” for the purposes of ss 71 and 77(iii) of the Constitution) cannot exercise State judicial power against the Commonwealth because, even if the proposition in 5 above is rejected, the Commonwealth would be immune from suit in that tribunal, since neither s 75(iii) of the Constitution nor ss 56 or 64 of the Judiciary Act remove immunity in State jurisdiction.

202               For Mr Nichols, it was said that:

1.                  The Tribunal is a “court of a State” for the purposes of ss 71 and 77(iii) of the Constitution because its court‑like characteristics outweigh its non‑court like characteristics. 

2.                  In this case, the approach to characterisation favoured by Heerey J in Wood should be adopted, rather than the approach in Trust Company of Australia (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) (2006) 66 NSWLR 77 (“Stockland”), since the latter is inconsistent with Forge v Australian Securities and Investment Commission (2006) 228 CLR 45 (“Forge”).

3.                  If a tribunal would have been considered independent and impartial as at 1900, then it should be considered to meet this criterion still. 

4.                  There is no plausible basis for a conclusion that the Tribunal is not independent and impartial. 

5.                  The Judiciary Act permits the courts of the States to exercise concurrent federal and State judicial power, as part of the integrated Australian judicial system. 

6.                  Alternatively, the Constitution and the Judiciary Act do not affect the capacity of a State body that is not a court of a State within ss 71 and 77(iii) of the Constitution in respect of the exercise of any State judicial power possessed by it. 

7.                  Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 (“Henderson”) is authority that a body that is not a court of a State, within the meaning of the Constitution, may make orders that bind the Commonwealth. 

8.                  Chapter III of the Constitution contains no proper basis, either in its text or structure, for an implication that would deny a body that is not a court of a State, within the meaning of the Constitution, the judicial power of the State that an         enactment of the State Parliament has purported to vest in it. 

9.                  Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 (“Brandy”) applies only to a tribunal established by the Commonwealth and cannot apply to a tribunal established by the State. 

10.              The Commonwealth’s argument, if accepted, would fragment the integrated national judicial structure created by Ch III of the Constitution.

203               The Attorney‑General for Tasmania, intervening, contended that:

1.                  If the Tribunal is a “court of a State” within s 77(iii) of the Constitution, then there is no constitutional objection under Ch III against it exercising power.

2.                  The Tribunal is a “court of a State”, for the reasons advanced by Heerey J in Wood.  Heerey J’s approach in Wood is to be preferred to the more restrictive approach of the New South Wales Court of Appeal in Stockland.

3.                  Function and independence are the most important matters by which the character of an institution as a court is determined. 

4.                  The Tribunal meets the requirements of “perceived independence and impartiality” because it is separated from the executive; its orders are subject to appeal and its conduct is subject to prerogative writs for failure to observe the rules of natural justice; and its constitution includes a legal practitioner of not less than seven years’ standing or a magistrate or a retired judge from any jurisdiction. 

5.                  Analogies should not be drawn between federal courts created under s 71 of the Constitution and courts of States invested with federal jurisdiction because the appointment, tenure and remuneration of judges of federal courts but not those of the courts of States invested with federal jurisdiction must comply with s 72 of the Constitution.  Federal courts, but not courts of States invested with federal jurisdiction, can exercise only judicial power. 

6.                  If the Tribunal is not a “court of a State”, then the appropriate order would be one that prevented the exercise of federal judicial power in this matter.  This would be an order that an order of the Tribunal may not be filed in the Supreme Court under s 90 of the Anti‑Discrimination Act. 

7.                  The essential features of the process of dispute resolution under Pt 6 of the Anti‑Discrimination Act were the same as those in the Racial Discrimination Act 1975 (Cth), which was the subject of the High Court’s consideration in Brandy.  The only significant difference was the fact that the Tribunal was established under a State Act, whilst the Human Rights and Equal Opportunity Commission (“HREOC”) considered in Brandy was established under a Commonwealth Act. 

8.                  In Brandy, the High Court held that the adjudicative process became an exercise of federal judicial power because of the administrative step in registering a determination which made the determination binding and enforceable.  The Court held only the provisions for registration invalid. 

9.                  The reasoning in Brandy can be applied to a State tribunal, as the New South Wales Court of Appeal did in Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385 (“2UE”). 

10.              The present case is akin to Brandy because it is the filing provisions of s 90 giving judicial effect to the making of an order against a party described in s 75(iii) of the Constitution that attach the character of federal jurisdiction to the exercise of power under the inquiry provisions of Pt 6 in relation to a complaint against such a party. 

204               As appears above, the arguments of counsel were learned, thorough and well‑designed.  Having considered them carefully, it seems to me that this case admits of a relatively straightforward answer.

The Tribunal exercises judicial power

205               I accept as clear that, under the Anti‑Discrimination Act, the Tribunal exercises judicial power.  The nature of its functions and the procedures for enforcement of its orders establish that this is the nature of its power.  The Tribunal has two principal functions.  First, the Tribunal is given a function to review a decision of the Anti‑Discrimination Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints: see, eg, Anti‑Discrimination Act, ss 13, 59, 64, 65, 68, 71 and 72.  No aspect of this function is under consideration in the present case.  Its second function, which is relevant here, is to conduct an inquiry into a complaint referred to it by the Anti‑Discrimination Commissioner – ie, to determine whether a provision of the Anti‑Discrimination Act (here, s 16) has been contravened:  see Anti‑Discrimination Act, ss 13, 78, 85, 86 and 87.  The authorities recognise that this is in the nature of an exercise of judicial power: see, eg, Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 413 at 422 per Starke J; R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 per Kitto J; and Brandy at 269 per Deane, Dawson, Gaudron and McHugh JJ.  The Tribunal also has a broad power to make various court‑like orders if it finds that a complaint is substantiated:  cf Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175 per Isaacs J, quoted in Brandy at 269.  These include orders in the nature of injunctions, including mandatory injunctions (s 89(1)(a)‑(c)), orders for the payment of compensation (s 89(1)(d)), fines (s 89(1)(e)), orders for the variation or avoidance of “a contract or agreement” (s 89(1)(f)), discretionary refusal of relief (s 89(1)(g)), and any other order that the Tribunal thinks appropriate (s 89(1)(h)). 

206               Furthermore, under the Anti‑Discrimination Act, a person may enforce a Tribunal order under s 89 by filing a certified copy of the order in the Supreme Court of Tasmania, together with an affidavit stating the extent to which there has been non‑compliance with the order:  see s 90(1)(a) and (c).  If these documents are filed, “the order made by the Tribunal … is enforceable as if it were an order of the Supreme Court”:  see s 90(2).  In Brandy, the High Court held that the inclusion of a provision providing for the registration and enforcement of a HREOC determination as an order of the Federal Court turned an exercise of non-judicial power into an exercise of judicial power:  cf Attorney‑General (Cth) v Breckler (1999) 197 CLR 83 (“Breckler”) at 110 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.  As Deane, Dawson, Gaudron and McHugh JJ explained in Brandy (at 269‑270):

“[I]f it were not for the provisions providing for the registration and enforcement of the Commission’s determinations, it would be plain that the Commission does not exercise judicial power.  That is because, under s 25Z(2), its determination would not be binding or conclusive between any of the parties and would be unenforceable.  That situation is, we think, reversed by the registration provisions.

Under s 25ZAA registration of a determination is compulsory and under s 25ZAB the automatic effect of registration is, subject to review, to make the determination binding upon the parties and enforceable as an order of the Federal Court.  Nothing that the Federal Court does gives a determination the effectofanorder. Thatisdonebythelegislationoperatingupon registration.”

See also Brandy at 260, 264 per Mason CJ, Brennan and Toohey JJ. 

207               Whilst there are differences between the Anti‑Discrimination Act’s enforcement regime and the regime in Brandy, the two regimes are sufficiently similar to justify the conclusion that, in combination with the factors already mentioned, an exercise of judicial power is involved.  The differences include the fact that there is no provision in the Anti‑Discrimination Act equivalent to s 25Z of the Racial Discrimination Act 1975 (Cth) as it stood at the time of Brandy.  Nor is it compulsory to file an order made by the Tribunal in the Supreme Court.  Section 90(1)(c) indicates that the Parliament contemplated that an order would be filed only in the event of non‑compliance.  These differences do not, however, detract from the fact that the filing of an order pursuant to s 90 confirms that it is “binding, authoritative and curially enforceable”, to quote the joint judgment in Breckler at 110, referring in turn to Kitto J’s observations in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374.  (In 2UE (at 398 per Spigelman CJ, 404 per Hodgson JA and 405 per Ipp JA) the New South Wales Court of Appeal reached a similar conclusion when considering the effect of a legislative scheme that gave “judicial force” to a state tribunal decision upon registration.  I discuss 2UE again hereafter.)

An exercise of the judicial power of the Commonwealth would be involved

208               Assuming the Tribunal exercises judicial power, nonetheless an issue under Ch III arises only if an exercise of the judicial power of the Commonwealth is involved.  There is nothing to prevent the Tribunal from exercising the judicial power of the State of Tasmania.  For the reasons that follow, I accept that, if the Tribunal were to proceed to conduct an inquiry into Mr Nichols’ complaint, it would be purporting to exercise the judicial power of the Commonwealth.  This is the effect of s 75(iii) of the Constitution, the structural considerations inherent in Ch III and recognised by authority, and the terms of s 39 of the Judiciary Act.

209               The effect of s 75(iii) of the Constitution and s 39 of the Judiciary Act is that only the judicial power of the Commonwealth can be exercised by a court in a proceeding to which the Commonwealth is a party.  As already noted, s 75(iii) gives the High Court original jurisdiction in such a matter and, by virtue of s 39(1) of the Judiciary Act, the original jurisdiction of the High Court is exclusive of the courts of the States “except as provided in this section”.  The effect of s 39(1) is that a State court cannot exercise State jurisdiction in a matter to which the Commonwealth is a party.  The only jurisdiction that the State court can exercise in such a matter is the federal jurisdiction conferred by s 39(2) of the Judiciary Act. 

210               Federal jurisdiction exists in a proceeding to which the Commonwealth is a party, simply because the Commonwealth is a party.  As Toohey, McHugh and Gummow JJ said in Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 653:

“The matters mentioned in ss 75 and 76 identify federal jurisdiction by such characteristics as identity of parties (s 75(iii), (iv)), remedy sought (s 75(v) …, content (interpretation of the Constitution – s 76(i)), and source of the rights and liabilities which are in contention (ss 75(i), 76(ii)).”

Once federal jurisdiction is attracted, then, as Gleeson CJ, Gaudron and Gummow JJ said in Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 571, quoting Barwick CJ in Felton v Mulligan (1971) 124 CLR 367 at 373‑374:

“[E]ven in a State court ‘there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had’ and ‘there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court’.”

That is, a court of a State can only exercise jurisdiction in a proceeding to which the Commonwealth is a party by virtue of s 39(2) of the Judiciary Act:  compare 2UE at 394 per Spigelman CJ, discussing the jurisdiction of courts of the States in matters arising under the Constitution or involving its interpretation (Constitution, s 76(i)). 

211               Counsel for Mr Nichols argued against this analysis on two bases.  First, he argued that Henderson was inconsistent with it.  He argued that Henderson supported the proposition that a State tribunal, which is not a “court of a State” within the meaning of s 77 of the Constitution, might lawfully exercise authority over a dispute to which the Commonwealth was a party.  Secondly, he contended that Ch III of the Constitution and ss 38 and 39 of the Judiciary Act had nothing to say about State Parliaments investing State judicial power in bodies other than the courts of the State. 

212               Henderson was not a case about State judicial power, however, and, as I endeavour to explain below, I would not regard it as supportive of the proposition for which Mr Nichols contended.  The case concerned the power of the New South Wales Residential Tenancies Tribunal to order that:  (1) an owner of premises leased by him to the Defence Housing Authority, as part of the Commonwealth, be permitted to inspect the premises; and (2) the Authority provide the owner with a key to the premises.  The Authority argued, amongst other things, that the Residential Tenancies Tribunal had no authority over it.  The Court rejected arguments that:  (1) the State’s Residential Tenancies Act 1987, pursuant to which the Residential Tenancies Tribunal acted, was invalid under s 109 of the Constitution on account of: (a) inconsistency with the Commonwealth statute constituting the Authority; or (b) because it dealt with a matter within the exclusive power of the Commonwealth under s 52(ii) of the Constitution; (2) the State Act did not extend to the Authority by reason of the principle in Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372; and (3) s 64 of the Judiciary Act did not operate to subject the Authority to the orders the owner sought. 

213               Counsel for Mr Nichols invited the Court to consider the New South Wales Residential Tenancies Act 1987 as it stood at the time Henderson was decided.  He noted that that Act contained provisions resembling the provisions in the Anti‑Discrimination Act that have been the subject of argument in this case.  It is tolerably clear, however, that the arguments in Henderson did not effectively raise, and the High Court certainly did not consider, any question regarding State judicial power.  We were invited to consider the transcript of argument in the High Court and, assuming that this is a proper course, I would not reach a contrary conclusion having had regard to it.

214               Further, the power conferred on the Residential Tenancies Tribunal was said to be in the nature of administrative or quasi‑legislative power.  Gummow J accepted that the Residential Tenancies Tribunal was an administrative tribunal, conducting an administrative proceeding:  see Henderson at 474‑475.  McHugh J said (at 460‑461):

“[T]he 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 …

Since the Tribunal is not a court exercising federal jurisdiction, s 64 does not apply to proceedings before it.”

Dawson, Toohey and Gaudron JJ said (at 448):

“We very much doubt 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.  But in the end it does not matter because in either event the DHA is bound generally by the Residential Tenancies Act and the tribunal has jurisdiction over it.”

Counsel for Mr Nichols relied on this passage as supportive of his argument, but I do not consider that it in fact advances his position.

215               The meaning of the passage set out above is to be gleaned from the surrounding discussion about the applicability of s 64 of the Judiciary Act.  This section relevantly provides that “[i]n 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 … as in a suit between subject and subject”.  The effect of the joint judgment was that the State’s Residential Tenancies Act applied to the Authority, which was “predicated upon the existence of a legal system of which [the State Act] forms a part”:  see Henderson at 447.  On the one hand, if the Residential Tenancies Tribunal were an administrative body exercising administrative power (a view the authors of the joint judgment apparently preferred), then the Authority was necessarily subject to it.  On the other hand, if the Residential Tenancies Tribunal were exercising judicial power, and s 64 applied, then their Honours evidently assumed (without needing to say so) that it would have been exercising federal jurisdiction (see, eg, 461 per McHugh J).  This passage does not refer to or countenance an exercise of State judicial power in a “suit” to which the Commonwealth is a party. 

216               As Kirby J observed at 510:

“The Judiciary Act, in harmony with the Constitution, was intended, relevantly, to overcome the procedural barrier against pursuing the Crown in the Crown’s courts.  In the specified cases, [s 64] sought to equate the Crown in right of the Commonwealth to an ordinary subject so that the rights of the parties should ‘as nearly as possible be the same’.”

Henderson does not contemplate the possibility that State judicial power might be exercisable against the Commonwealth.  Henderson is not to be understood as inconsistent with the proposition that an exercise of judicial power for or against the Commonwealth involves an exercise of federal jurisdiction.

217               Counsel for Mr Nichols developed his argument that Ch III of the Constitution and s 39 of the Judiciary Act had nothing to say about State Parliaments investing State judicial power in bodies other than the courts of the State in the following way.  (See also the Hon Duncan Kerr SC MP, “State Tribunals and Chapter III of the Australian Constitution:  Case Note” (2007) 31 Melbourne University Law Review 622.)  He did not dispute that the federal jurisdiction of State courts depended entirely on s 39(2) of the Judiciary Act.  He also accepted that, as the Commonwealth submitted, the Commonwealth cannot confer Commonwealth judicial power on a State tribunal that was not relevantly a “court of a State”. Counsel’s argument commenced with the propositions that, first, Ch III left State judicial power unaffected since, amongst other things, s 71 of the Constitution defined only the repositories of the judicial power of the Commonwealth; and, secondly, s 39 of the Judiciary Act was concerned only with the investment of federal judicial power in State courts.  It followed, so this argument ran, that neither the Constitution nor s 39 of the Judiciary Act had anything to say about the operation of State judicial power.  That is, neither the Constitution nor the Judiciary Act withdrew pre‑existing State judicial power, which, in the absence of a separation of powers doctrine comparable to the Commonwealth, might lie in State courts and tribunals.  Counsel argued that, on this analysis, the fact that the Commonwealth was a party to a tribunal proceeding was “an incidental matter”.  The fact that the Commonwealth was such a party did not turn an exercise of State judicial power into an exercise of federal judicial power.  I would reject this argument for the following reasons.

218               First, the argument is not, it seems to me, supported by authority.  As already explained, I would not regard Henderson as supporting an analysis of this kind.  Secondly, the New South Wales Court of Appeal rejected a similar argument in 2UE, in which the Court held that the New South Wales Administrative Decisions Tribunal could not exercise federal jurisdiction of the kind described in s 76(i) of the Constitution because Ch III prevented it from so doing. 

219               The Court of Appeal held that the appeal panel of the Administrative Decisions Tribunal had no jurisdiction to determine whether the State’s anti‑discrimination legislation should be read down so as not to infringe the constitutional implication of freedom of communication for political speech.  In 2UE, the Court followed its decision in Stockland that the Administrative Decisions Tribunal was not a court for the purposes of s 39 of the Judiciary Act.  As Spigelmen CJ, with whom Ipp J agreed, said, at 391, the Administrative Decisions Tribunal and the appeal panel were administrative bodies with statutory powers, the exercise of which had legal consequences. The Chief Justice explained that (at 392):

“But for any disentitling provision, whether statutory or constitutional, I do not doubt that it is open to the tribunal to approach the task of interpretation with a view to bringing the operation of s 49ZT into conformity with the constitutional immunity, assuming there to be any disconformity.  The issue before the Court is whether there is any such disentitling provision in the Commonwealth Constitution or in a Commonwealth statute.”

220               In answering this in the affirmative, Spigelman CJ said (at 395):

“Federal jurisdiction, in the sense of the exercise of the judicial power of the Commonwealth, cannot be exercised by a tribunal as a manifestation of the executive arm of government, whether of the Commonwealth or of a state.  That restriction arises by reason of the text and structure of the Constitution, including particularly the strong doctrine of separation of powers arising from Ch III of the Constitution. …

A state parliament cannot confer on a court, let alone on a tribunal, judicial power with respect to any matter referred to in s 75 or s 76 of the Constitution.”

221               In support of this latter proposition, his Honour quoted the following passage from the judgment of Jacobs J in Commonwealth v Queensland (1975) 134 CLR 298 at 327‑328:

“In my opinion the judicial power delineated in Ch III is exhaustive of the manner in and the extent to which judicial power may be conferred on or exercised by any court in respect of the subject matters set forth in ss 75 and 76, ‘matters’ in those sections meaning ‘subject matters’.  This is so not only in respect of federal courts but also in respect of State courts whether or not they are exercising jurisdiction conferred on them under s 77(iii).  In respect of the subject matters set out in ss 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch III and if in respect of those matters an investing with federal jurisdiction of a State court does not enable it to perform the particular judicial function, then in respect of those matters the State court cannot under any law exercise that judicial function.  Therefore, if in respect of those matters a State court exercising federal jurisdiction cannot give ‘advisory opinions’ it cannot in respect of the same matters give such opinions in exercise of some State jurisdiction.  Chapter III of the Constitution is so constructed that the limits of the Commonwealth power to invest State courts with federal jurisdiction with respect to the matters mentioned in ss 75 and 76 mark out the limits of the judicial power or function which in any case State courts can exercise in respect of those matters.  A State thus could not empower one of its courts to give advisory opinions on those subject matters.  The court would be exercising judicial power but not a judicial power envisaged by Ch III and able to be conferred on it by the Commonwealth.  It is then no answer to say that the State is conferring a judicial power which the Commonwealth is unable to confer.  There is here no residuary State power, because Ch III is an exhaustive enunciation.” 

222               I accept, as indeed, the above passage indicates, that Ch III of the Constitution is the sole source of Commonwealth judicial power, which is the only power exercisable when federal jurisdiction is attracted.  Federal jurisdiction is attracted whenever there is an exercise of judicial power in respect of a matter of the kind described in ss 75 and 76 of the Constitution.  Furthermore, Ch III precludes the existence of residuary State judicial power in respect of any such matter.  It follows from this that a State Parliament cannot confer State judicial power on either a State court or tribunal in respect of a matter in ss 75 and 76 of the Constitution, because these matters attract federal jurisdiction in which only Commonwealth judicial power is exercisable. If this were not so, then, as the Commonwealth submitted:

“[A] State could avoid the effect of Commonwealth laws giving exclusive jurisdiction to a federal court (as contemplated by s 77(ii) of the Constitution) or attaching conditions or restrictions to the investiture of federal jurisdiction in State courts (as in s 39(2) of the Judiciary Act) by conferring jurisdiction onaStatetribunalinthemattersspecifiedinss 75and76oftheConstitution.”

This restriction on the State legislative and judicial power lives in the text and structure of Ch III of the Constitution.  This restriction is, so it seems to me, “logically or practically necessary for the preservation of the integrity of that structure”:  see Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135 per Mason CJ.  I would not, therefore, accede to the contrary submissions made on Mr Nichols’ behalf.

223               Furthermore, I agree with Spigelman CJ, for the reasons he advanced in 2UE, at 395, that:

“[E]ven if it could be argued that covering cl 5 [of the Constitution] conferred on ‘courts, judges’ and, relevantly, quasi-judicial tribunals, something that was accurately described as ‘jurisdiction’, that could only be true on an interim basis pending the exercise by the parliament of the power in s 77(ii) to exclude such jurisdiction, a power which has long since been exercised in s 39(2) of the Judiciary Act. This role of covering cl 5 is now spent, with only the theoretical possibility of a revival if the relevant provisions of the Judiciary Act were repealed.”

Covering cl 5 of the Constitution can no longer be a source of federal jurisdiction, or something akin to it:  compare Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1136‑1137 per Griffith CJ, Barton and O’Connor and 1142‑1143 per Isaacs J; Lorenzo v Carey (1921) 29 CLR 243 at 252 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ and 255 per Higgins J; and Felton v Mulligan (1971) 124 CLR 367 at 394 per Windeyer J and 411‑412 per Walsh; and Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 (“Moorgate”) at 479 per Stephen, Mason, Aickin and Wilson JJ and 471 per Gibbs J.  The argument for Mr Nichols identified no further source of the jurisdiction of State courts to decide matters in which the Commonwealth was a party.  Indeed, this proposition is, so it seems to me, ultimately inconsistent with the position established in the jurisprudence of the High Court since Moorgate.

Is the Tribunal a “court of a State”?

224               I have deferred this critical question until now because it seems to me that this question and its answer have a tendency to divert attention from the applicable provisions and principles on the issues just discussed.  For example, counsel for Mr Nichols argued that the Commonwealth’s analysis of the effect of Ch III would lead to fragmentation in the judicial system.  It seems to me, however, that any such fragmentation is a product of a State legislative choice to place judicial power in a body other than “a court of a State” within the meaning of s 77(iii) of the Constitution.  It is not the product of Ch III of the Constitution.

225               As I have said already, the authorities establish that Ch III requires that only courts can exercise the judicial power of the Commonwealth:  see R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“Chu Kheng Lim”) at 26‑27 per Brennan, Deane and Dawson JJ; and Forge at 73 per Gummow, Hayne and Crennan JJ.  I accept that, as the Commonwealth submitted, a body may be characterised as a “court” for one purpose and not another:  compare Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515 per McHugh JA and New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 209 per Mahoney JA.  The meaning of the word “court” in a statute depends upon the terms of the Act and its statutory context, including its subject‑matter and purpose.  Within the Constitution, however, the meaning of the word “court” is less malleable than elsewhere.  The expressions “courts of the States” or “court of a State” are constitutional expressions, in the sense that they are critical elements in the text of s 77 and refer to institutions of a certain kind within the contemplation of the Constitution:  compare Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, at 58 per Gibbs CJ, 59 per Stephen J, 64 per Mason J; 66 per Aickin J; and 71 per Wilson J.  Gummow, Hayne and Crennan JJ made this point clearly in Forge when their Honours said (at 75):

“It may be accepted that the constitution and organisation of State courts is a matter for State legislatures.  In that sense, the federal Parliament having no power to alter either the constitution or the organisation of a State court, the federal Parliament must take a State court ‘as it finds it’.  It does not follow, however, that the description which State legislation may give to a particular body concludes the separate constitutional question of whether that body is a ‘court’ in which federal jurisdiction may be invested.  It is only in a ‘court’, as that word is to be understood in the Constitution, that federal jurisdiction may be invested.” 

226               The expression “court of a State” refers to a body that has “the essential character of a court” that can receive and exercise the judicial power of the Commonwealth: compare Chu Kheng Lim at 27.  If a body does not have this “essential character”, it cannot receive and exercise Commonwealth judicial power:  see also Stockland at 86 per Spigelman CJ.  It is, therefore, only a court of a State, for the purposes of the Constitution, which can exercise jurisdiction in a case in which the Commonwealth is a party (see s 75(iii)):  see Forge at 75.  For the reasons given below, the Tribunal cannot be characterised as a court of a State within the meaning of Ch III of the Constitution.

227               It may be impossible, and certainly it is difficult, to define, in an affirmative way, all the characteristics of a court of a State:  see Forge at 76 per Gummow, Hayne and Crennan JJ. Notwithstanding this, the High Court has held that independence and impartiality is the irreducible minimum for a court of a State within s 77(iii) of the Constitution.  In Forge at 67, the Chief Justice succinctly stated this proposition, when affirming:

“For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality.  That is a stable principle, founded on the text of the Constitution.” 

See also Forge at 76‑77 (citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 per Gleeson CJ, McHugh, Gummow and Hayne JJ) and 79‑81 per Gummow, Hayne and Crennan JJ.  In the joint judgment in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 (“Bradley”) at 163, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said that “a court capable of exercising the judicial power of the Commonwealth [must] be and appear to be an independent and impartial tribunal”.  This is apposite in this case too, notwithstanding that the joint judgment had a court of a Territory specifically in mind, rather than, as here, a court of a State.  Institutional independence and impartiality, in a constitutional sense, are fundamental to the “institutional integrity” of which the High Court spoke in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 591‑593 per Gleeson CJ, 598 per McHugh J, 617‑618 per Gummow J, 629 per Kirby J, 648 per Hayne J (agreeing with Gummow J), and 653 per Callinan and Heydon JJ.  

228               Whether or not a decision‑making body will be relevantly independent and impartial in this constitutional sense does not always admit of an easy answer.  Much will often depend on the powers and functions of the body, the provisions for appeal and review of its decisions, its pre– and post‑federation history, and the nature of the constitutional or legislative “institutional arrangements and safeguards” for securing independence and impartiality:  see, eg, Forge at 68 per Gleeson CJ.  Further, to quote Gleeson CJ in Forge (at 65‑66):

“Australia has an integrated, but not a unitary, court system.  As was pointed out in North Australian Aboriginal Legal Aid Service Inc v Bradley[(2004) 218 CLR 146 at 152] there is no single ideal model of judicial independence, personal or institutional. Within the Australian judiciary, there are substantial differences in arrangements that bear upon judicial independence.”

229               As the argument in this case demonstrates, even at the level of State Supreme Courts, whose continued existence is constitutionally protected, there are significant differences with respect to appointment, tenure and remuneration.  Whether or not particular institutional arrangements will ensure the requirements for independence and impartiality are met will depend on the inter-relationship of numerous provisions, constitutional conventions, and the history that attaches to them.  For this reason, I reject the Commonwealth’s submission that the requirements of independence and impartiality are bound to appear solely in the constitutive legislation of a State court.  The Commonwealth’s submission disregards the role of history, constitutional convention, and other institutional and governmental relationships.  I accept, however, that the requirements of independence and impartiality are to be found in State constitutional provisions or legislation, considered in light of a court’s history and institutional and governmental relationships.

230               The decision in Forge is illustrative of this.  In that case, the High Court (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ, with Kirby J dissenting) held that the appointment of acting judges to the New South Wales Supreme Court, pursuant to s 37 of the Supreme Court Act 1970 (NSW), was not inconsistent with Ch III of the Constitution and an acting judge was, therefore, entitled to exercise the federal jurisdiction conferred by s 39(2) of the Judiciary Act.  Considerations that supported this conclusion included the pre– and post‑federation history of appointing acting judges to State Supreme Courts; the fact that, in contemporary New South Wales, they were appointed by the same authority as appointed permanent judges; that they took the same oath of office; that they were subject to the same process of removal during a term of office; and that they were remunerated on the basis of recommendations made by the same tribunal as for permanent judges, and were subject to the same systems of complaints and discipline as permanent judges:  see Forge at 68 per Gleeson CJ (with whom Callinan J agreed) and 146‑150 per Heydon J.

231               Further, the long‑standing acceptance of the capacity of courts of summary jurisdiction to receive federal jurisdiction emphasises the role of history, and institutional and governmental arrangements, in the assessment of constitutional institutional independence.  As Gummow, Hayne and Crennan JJ noted, in Forge at 82, “[b]oth before and long after federation, courts of summary jurisdiction have been constituted by Justices of the Peace or by stipendiary magistrates who formed part of the colonial or State public services”.  As their Honours said, they did not enjoy the “protections of judicial independence afforded by provisions rooted in the Act of Settlement and having as their chief characteristics appointment during good behaviour and protection from diminution in remuneration”, but, nonetheless, they were “considered fit receptacles for the investing of federal jurisdiction”: see Forge at 82. 

232               I accept, moreover, that, as history confirms, the State courts need not be constituted in the same way and be subject to the same mechanisms, in order for them to meet Ch III’s requirements of independence and impartiality.  Thus, in Forge, their Honours observed (at 82‑83):

“The independence and impartiality of inferior courts, particularly the courts of summary jurisdiction, was for many years sought to be achieved and enforced chiefly by the availability and application of the Supreme Court’s supervisory and appellate jurisdictions and the application of the apprehension of bias principle in particular cases.  But by contrast, the independence and impartiality of a State Supreme Court cannot be, or at least cannot so readily be, achieved or enforced in that way. Rather, the chief institutional mechanism for achieving those ends, in the case of the Supreme Courts, has been the application of Act of Settlement terms of appointment to the Court’s judges coupled with rules like the rules about judicial immunity …”

233               In this case, the Commonwealth argued that provisions as to tenure and – where the State paid a judicial office-holder – provisions as to remuneration were critical for independence and impartiality.  I doubt that the various reasons for judgment of the majority in Forge really support this general proposition. Indeed, the passage set out above tends against its acceptance as a general rule.  I accept, however, that, a tribunal that owes its existence to a Ministerial determination under a modern statute, the members of which may be removed at any time by the Minister at will, is unlikely to be a “court of a State” within s 77(iii) of the Constitution.  In order to be a “court of a State” for this purpose, for a tribunal such as this, there must be some legislative or constitutional provision for tenure of some kind, precluding removal from office merely because the executive desires it.  In the case of the Tribunal, there is no such constitutional or legislative provision.

234               Section 12 of the Anti‑Discrimination Act provides:

“(1)     The Minister may –

(a)        establish a Tribunal; and

(b)        appoint a person or persons as member or members of the Tribunal; and

(c)        appoint a person as chairperson of the Tribunal who is a legal practitioner of not less than 7 years’ standing, a magistrate or former judge.

(2)       If the Tribunal consists of one member, that member must be a legal practitioner of not less than 7 years’ standing, magistrate or former judge.

(3)       If the Tribunal consists of 2 or more members –

(a)        at least one of those members must be a legal practitioner of not less than 7 years’ standing, a magistrate or former judge; and

(b)        the other member or members must be a person or persons with the experience and expertise relevant to the inquiry before the Tribunal.

(4)       The chairperson may determine –

(a)        which member or members of the Tribunal constitute the Tribunal in a particular inquiry or review; and

(b)        which member is to be the presiding member of the Tribunal in that inquiry or review.”

235               The Anti‑Discrimination Act contains no provision concerning the tenure of members of the Tribunal, or providing for their removal.  Instead, s 21(1)(a) of the Acts Interpretation Act 1931 (Tas) provides that “[w]here an Act confers a power to make any appointment to an office or a position, the power includes a power … to suspend or remove a person appointed under that power”.  Accordingly, since, by virtue of s 12(1)(b) and (c) of the Anti‑Discrimination Act, the responsible Minister has the power to appoint the members of the Tribunal, by virtue of s 21(1)(a) of the Acts Interpretation Act 1931 (Tas), he or she has the power to remove them at will.  The absence of any provision as to tenure compromises the institutional independence of the Tribunal.  The fact (as it appears) that the members of the Tribunal received letters of appointment advising that they were appointed for a term of years cannot relevantly diminish the Minister’s statutory power of removal and this conclusion. 

236               I am fortified in my view that the Tribunal is not a court of a State and cannot receive federal jurisdiction by the decision of the New South Wales Court of Appeal in Stockland.  Stockland held that the Administrative Decisions Tribunal, established under a State Act, was not a “court of a State” for the purposes of s 77(iii) of the Constitution and, accordingly, could not exercise jurisdiction under s 86(2) of the Trade Practices Act 1974 (Cth) to hear a claim under s 52 of that Act.  Spigelman CJ, with whom Hodgson and Bryson JJA agreed, held, at 87, that:

“For present purposes it is sufficient to conclude that, in order for federal jurisdiction to be permissibly conferred upon it, a ‘court of a State’ must – exclusively, or at least predominantly – be constituted by judges.”

The Chief Justice concluded that, since the membership of the Administrative Decisions Tribunal was not predominantly composed of judges, it was not a “court of a State” within s 77(iii) of the Constitution. 

237               In Stockland, the Court of Appeal did not expand on why the members of the Administrative Decisions Tribunal were not judges.  The Commonwealth intimated, and I am inclined to accept, that “[t]he question whether a tribunal member is a ‘judge’ may be no more than another way of framing the question whether a tribunal meets minimum criteria of independence and impartiality so that it can be a ‘court’ within Chapter III”.  This reconciles the analysis in Stockland with Forge, without doing violence to either.  It is also in keeping with the observations in the joint judgment in Forge at 79, 83, 87, as to the consequences of the appointment of a disproportionate number of acting judges to a State Supreme Court. 

238               The foundation for the finding that the Administrative Decisions Tribunal members were not judges (and therefore the Tribunal did not meet the requirements of independence and impartiality) appears elsewhere in the Chief Justice’s reasons for judgment, where his Honour recorded that, under the constitutive legislation, members of the Administrative Decisions Tribunal were appointed for a renewable term of three years; a non‑Presidential member might be removed by the Governor for incapacity, incompetence or misbehaviour; many members were not legally qualified; and, to the extent that it matters, they were not called judges.  It is implicit in Spigelman CJ’s observations (at 89) concerning the difference between his own approach and that of Heerey J in Wood that the absence of security of tenure was important in this matter of characterisation.

239               As I have said, the requirements of independence and impartiality must be found in the State’s constitution or legislation, considered in light of the court’s history, constitutional convention, and institutional and governmental relationships.  This is consistent with both Forge and Stockland.  As I have said, the Anti‑Discrimination Act contains no provision as to tenure. On the contrary, the members of the Tribunal are apparently subject to removal as the Minister sees fit.  The Tribunal cannot be justified as a suitable receptacle for federal jurisdiction on account of its history, constitutional convention, or any special institutional or governmental arrangement. Accordingly, I would not characterise the Tribunal as a “court of a State” within s 77(iii) of the Constitution.

240               This is a different conclusion from that reached by Heerey J in Wood, but it may be recalled that his Honour did not have the benefit of the High Court’s decision in Forge.  This explains in part why I do not share his Honour’s view, although it may be necessary to explore a little more deeply why this should be so.

241               Heerey J began his reasoning in Wood by adopting what has been termed the “balance sheet” approach:  see Wood at 289‑291.  This is an approach whereby the Court sets out a list of matters supporting the conclusion that a body is a court and another list supporting the conclusion that it is not.  The Court compares the lists before making a judgment as to which list contains the weightier factors.  This can be a useful approach, especially where the character of a body is doubtful:  see Orellana‑Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 (“Fuentes”), in which Ipp JA, with whom Spigelman CJ and Handley JA agreed, held that the New South Wales Workers Compensation Commission was not a court of a State for the purposes of s 77(iii) of the Constitution.  Spigelman CJ also set down such a list in Stockland at 83‑84. 

242               Heerey J referred to the competing considerations in Wood at 289‑296.  Mr Nichols also relied on the same balancing exercise in this case:  compare [246] below.  It follows, from the conclusion stated above, however, that I consider that his Honour gave too little weight to the fact that the Tribunal members were subject to removal at will by the executive.  His Honour relied on the fact that, as at 1903, magistrates had “nothing like Act of Settlement tenure” and “even honorary justices [could] constitute a court of a State”:  see Wood at 293.  In this case, there is no need to consider whether or not the descendants of these bodies, if any, would still be seen as having capacity to receive federal jurisdiction.  The courts and other institutions of government have changed since that time and so have the conventions and other arrangements for safeguarding their independence and impartiality.  Even if the essential elements of a constitutional expression have not changed, the circumstances in which the expression applies have.  Nothing like the Anti‑Discrimination Tribunal existed at federation or when the Judiciary Act came into operation.  I am therefore unpersuaded by Heerey J’s reference to the status of honorary justices in 1903: compare also Stockland at 89 per Spigelman CJ.

243               Heerey J was satisfied that “reasonable and informed members of the public would think that the Tribunal was free from the influence of the other branches of the Tasmanian Government, and particularly the Executive”: see Wood at 293.  His Honour referred to the Tribunal’s function and to the fact that it was “empowered to do most of the things courts do”, before saying (at 293):

“Let it be supposed somebody put to such reasonable and informed members of the public that the Minister could just ring up the Tribunal and tell it how to decide cases, and that if a member of the Tribunal did not do the Minister’s bidding, he or she could be dismissed.  Such reasonable and informed members of the public would point out that there are very practical political sanctions against such an eventuality. To take the most obvious example, where the Minister dismisses a Tribunal member because he or she dislikes a decision made against the government.  Public, political and media attacks on the government would be inevitable.”

By themselves, however, constraints of this kind are insufficient to meet the constitutional requirements for independence and impartiality.  Whether or not public opinion would relevantly constrain the responsible Minister would depend on a great many factors, including, perhaps, the popularity of the decision.  A hallmark of the requirement for independence is that a court makes its decisions, amongst other things, according to law and, if need be, in the face of popular sentiment:  compare Valente v The Queen (1985) 24 DLR 161 (4^th), [1985] 2 SCR 673 at 687, 689, 701 per Le Dain; Starrs v Ruxton 2000 SLT 42, 57‑58 per Lord Justice Clerk and 64, 69 Lord Reed; also R v Genereux [1992] 1 SCR 259 at 304 per Lamer CJ; Kearney v HM Advocate 2006 SC (PC) 1 at 4 [7], 18 [51]‑[52]; Findlay v United Kingdom (1997) 24 EHRR 221 at [79]; Cooper v United Kingdom (2004) 39 EHRR 8 at [104]; Bryan v United Kingdom (1996) 21 EHRR 342 at [37]‑[38].

244               Heerey J also considered that there were sufficient legal remedies open to a Tribunal member to safeguard against arbitrary dismissal:  see Wood at 294.  His Honour noted that judicial review was available to challenge such a decision, and there was also a right to obtain reasons for a decision.  He concluded (at 294):

“Not only would the Minister be constrained by the potential of an order setting aside a dismissal decision but there would be the prospect of controversial litigation with all its concomitant expense, delay, discovery of embarrassing documents and publicity.”

245               The availability of remedies can be a relevant consideration, as Bradley demonstrates.  In Bradley, at 172, the High Court referred to the fact that the Chief Magistrate “under the system established [for remuneration] may be placed in the position of seeking the aid of the Supreme Court to compel observance of the obligations of the Administrator” and concluded that this did not render “the office of the Chief Magistrate inappropriately dependent on the legislature or executive of the Territory in a way incompatible with requirements of independence and impartiality”.  This comment was made in an entirely different context, however, after the Court had found that, properly construed, the power to make remuneration determinations was attended by a duty to exercise the power as the occasion demanded.  In the present case, the Minister’s power to remove a member is very broad indeed.  It is not coupled with a duty of any relevant kind.  In consequence, a Tribunal member might well find it difficult, if not impossible, to obtain redress by way of judicial review if an appointment were terminated in purported exercise of the power conferred by s 21(1)(a) of the Acts Interpretation Act 1931 (Tas).  Put another way, in the present context, the availability of judicial review would not offer any meaningful safeguard of Tribunal independence.

246               The foregoing discussion does not, of course, deny that some matters pertaining to the Tribunal are consistent with it being a court:  see Anti‑Discrimination Act, ss 103(1) (judicial‑type immunity); 85(1) (public hearings); 86A (security for costs orders against persons other than the complainant); 87(1) (evidence on oath or affirmation); 87(2)‑(3) (notices akin to subpoenas to give evidence); 87(4) (bound by rules of natural justice though not the rules of evidence); 102 (immunity from suit for complainants and witnesses); 89(1) (remedial orders); 93 (written reasons on request); 90 (curial enforcement of orders), 99 (complaint dismissal if unsubstantiated, trivial or misconceived etc); 99A (costs but see s 95); and 100 (appeal to Supreme Court on fact and law).  The point is that, for the reason stated at [239] above, the Tribunal is not a “court of a State”.  The fact that there is no provision for remuneration, notwithstanding that some members are apparently in receipt of remuneration in respect of their Tribunal work tends to confirm this conclusion:  see Bradley at 170 per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, referring to security of remuneration as “a basic attribute of … judicial independence”.

247               Two additional matters may be mentioned.  First, the fact that the legislature has not referred to a body as a court in its constituting legislation may be an obvious guide to its legislative intention:  see Tana v Baxter (1986) 160 CLR 572 at 582 per Brennan J; Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175 per Isaacs J; and Stockland at 83 and 87 per Spigelman CJ.  In this case, however, provisions of the State’s Magistrates Court Act 1987 make this consideration less persuasive than it might otherwise be:  see Magistrates Court Act 1987 (Tas), ss 3 and 15AA.  Secondly, in the absence of a separation of powers doctrine in the State sphere, the fact that a body exercises judicial power does not provide any strong basis for inferring that the body is a court: compare Fuentes at 290 per Ipp JA and Stockland at 82 per Spigelman CJ. 

248               If the Commonwealth is a “person” for the purposes of the Anti‑Discrimination Act, then the Anti‑Discrimination Act is invalid to the extent that it purports to confer jurisdiction on the Tribunal in relation to the Commonwealth since the Tribunal is not a “court of a State” within s 77(iii) of the Constitution.

Reading down

249               The Commonwealth sought a declaration that the Tribunal has no jurisdiction to hear and determine Mr Nichols’ complaint against Centrelink and an injunction restraining the Tribunal from conducting an inquiry into, or determining, the complaint.

250               The Attorney‑General for the State of Tasmania, intervening, argued against relief in these terms.  His submission began with the proposition that:

“Save for the fact that the Anti-Discrimination Tribunal is established under a State Act and the Human Rights and Equal Opportunity Commission whose functions were considered in Brandy …was established under a Commonwealth Act, the essential features of the process of dispute resolution under Part 6 of the [Anti-Discrimination Act] and under the Racial Discrimination Act 1975 (Cth), considered in Brandy’s Case, are not significantly different.” 

251               In Brandy, as counsel submitted, the High Court held that only the registration provisions of the Racial Discrimination Act 1975 (Cth) were invalid:  see Brandy at 254 and 271.  As also noted above, in 2UE, the New South Wales Court of Appeal applied much of the reasoning in Brandy although it made no declaration of invalidity.  Rather, in 2UE, the Court made a declaration that the tribunal had no jurisdiction to determine whether the relevant provision of the State Act should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters:  see 2UE at 405.  In this case, the Attorney-General for Tasmania argued that, if it were held that the Tribunal were not a “court of a State” within s 77(iii), then, as in Brandy and 2UE, this Court should make an order “to prevent the unconstitutional exercise of its powers under Div 4, that is, … to prevent the conversion of a non-binding determination into a binding, authoritative and enforceable determination”.  That is, the Court should, it was submitted, order that an order of the Tribunal (at least as against the Commonwealth) may not be filed in the Supreme Court under s 90 of the Anti‑Discrimination Act.  For the reasons that follow, I would not accede to this submission.

252               Section 3 of the Acts Interpretation Act 1931 (Tas) requires that State Acts “be read and construed subject to the limits of the legislative powers of the State and so as not to exceed such powers” to the intent that the Act should be valid “ to the extent to which it is not in excess of such powers”.  Its terms resemble s 15A of the Acts Interpretation Act 1901 (Cth).  In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 339, Brennan J succinctly stated the law with respect to s 15A of the Acts Interpretation Act 1901 (Cth), when his Honour said that the provision could save a provision that was literally in excess of power if two conditions were met.  The first was that “the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law”:  see Pidoto v Victoria (1943) 68 CLR 87 (“Pidoto”) at 109 per Latham CJ.  The second was that the operation of the law upon the subjects within power was not changed by placing a limited construction upon the law:  see Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 493 per Barwick CJ.  These propositions remain applicable: see  APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 371 per McHugh J, 447 per Kirby J; New South Wales v Commonwealth (2006) 229 CLR 1 at 196, 240‑241 per Kirby J; Victoria v Commonwealth (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; and compare Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ, 51 per Toohey J, 54 per Gaudron J, 58 per McHugh J; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 547-548 per Mason CJ, Wilson and Dawson JJ, 577 per Brennan and Toohey JJ, 589 per Deane J, 604 per Gaudron J; Bank of NSW v Commonwealth (1948) 76 CLR 1 at 371 per Dixon J.

253               Can the Anti‑Discrimination Act be read down in the way for which the Attorney‑General for Tasmania contends?  I do not consider it can.  First, Brandy is different from this case in a number of pertinent respects.  First, as noted earlier, the Anti‑Discrimination Act does not contain a provision that is equivalent to s 25Z of the Racial Discrimination Act 1975 (Cth) as it stood at the time of Brandy.  By virtue of s 25Z(2), a determination under s 25Z(1) was not binding or conclusive between any of the parties to it.  HREOC was, however, required to lodge a determination in the Federal Court and the registrar was required to register it.  The registration gave the determination the same effect as if it were an order of the Court.  The Anti‑Discrimination Act does not say that an order of the Tribunal is not binding on the parties; and registration in the Supreme Court is not compulsory.  As already noted, s 90(1)(c) contemplates that an order would be filed only in the event of non‑compliance.  It is by no means clear that severing s 90 of the Anti‑Discrimination Act or reading it down so as not to apply to the Commonwealth would turn an exercise of judicial power into non‑judicial power as it did in Brandy.  On the contrary, absent a provision like s 25Z(2), there would, it seems, remain an exercise of judicial power:  compare Brandy at 269.

254               Moreover, if the Court were to declare s 90 of the Anti‑Discrimination Act ineffective (or invalid) to the extent that permitted a person, or the Commissioner at the request of a person, to enforce an order made under s 89(1) against the Commonwealth, then the effect of the Tribunal’s orders under s 89 would be fundamentally different depending on whether they were made against the Commonwealth or some other person.  Reading down or severing s 90 so as to have no application at all would alter the legislative scheme even further.  Section 90 is significant in this scheme.  The Anti‑Discrimination Act was intended, so it seems to me, to operate fully and completely according to its terms, or not at all (see Pidoto at 108).  Reading down the Anti‑Discrimination Act in the way for which the Attorney‑General for Tasmania contends would produce a set of provisions that the Parliament did not intend.  This ought not to be done.

255               With these considerations in mind, if the Commonwealth is a “person” for the purposes of the Anti‑Discrimination Act, with the consequence that the Anti‑Discrimination Act is invalid to the extent that it purports to confer jurisdiction on the Tribunal in relation to the Commonwealth, then it would be preferable to declare that the Tribunal has no jurisdiction over the Commonwealth or Centrelink.  This would do no violence to the operation of the Anti‑Discrimination Act within its proper bounds.

The existence of the Tribunal

256               In the course of the hearing of this matter, an issue arose as to whether the Tribunal had in fact been established by the Minister pursuant to s 12 of the Anti‑Discrimination Act.  In his reasons for judgment, which I have read in draft, Weinberg J explains the way in which the issue arose and discusses the evidence adduced in connection with it.  I gratefully adopt his Honour’s explanation and discussion.  As his Honour’s discussion shows, whilst there is no direct and reliable evidence that the Minister exercised the power conferred on him by s 12(1)(a) of the Anti‑Discrimination Act to establish the Tribunal, equally there is no clear evidence to the contrary.  The evidence does establish, however, that, prior to the commencement of the Anti‑Discrimination Act but subsequent to its passage through both Houses of the Parliament, the Minister sent letters of appointment to Helen Wood, as chairperson and member, and six other individuals, as members.  The evidence shows, moreover, that, subsequent to the commencement of the Anti‑Discrimination Act, the Minister sent further letters of appointment, including letters of reappointment to Helen Wood and five of the original members.

257               In the circumstances disclosed by the evidence, and having regard to the terms of s 12 of the Anti‑Discrimination Act, I conclude that the Minister has established the Tribunal pursuant to s 12 and, in the alternative, that it should be presumed that he has duly established the Tribunal, to which body the chairperson and members have duly been appointed.

258               First, let it be assumed that s 12(1)(a) confers a discretion (as opposed to a duty) on the Minister to establish the Tribunal.  This discretion is at large.  Neither s 12 nor any other statutory provision stipulates any criterion by reference to which a decision is to be made.  Neither s 12 nor any other statutory provision specifies the manner in which a decision is to be made or recorded.  There is no requirement that the decision to establish the Tribunal be recorded in a formal instrument or even in writing.  If the act of establishing the Tribunal is properly regarded as separate from the first appointment of a member or members (which I doubt), then the act is complete when the Minister turns his mind to the question whether or not he should establish the Tribunal and determines that he should.  If the Court were to hold that the Minister cannot be taken to have made a decision to establish the Tribunal unless that decision is recorded in writing (or that there is some other pre‑requisite), it would be adding an unwarranted gloss on s 12.  If this is so, then s 12(1) in substance confers a binary discretion to appoint members and thereby establish the Tribunal, or not appoint members and thereby not establish the Tribunal.  Put another way, the act of first appointment encompasses the act of establishment.  In substance, the very act of appointing members (and a chairperson) was also the act by which the Minister established the Tribunal.  That the discretion to establish and appoint has this binary character, with the result that the acts of establishing and appointing are in truth indivisible under s 12(1) of the Anti‑Discrimination Act, is supported by the use of the word “and” after s 12(1)(a) and s 12(1)(b). 

259               The alternative is, it seems to me, to regard the acts of appointing members as presumptive evidence that the Tribunal had already been established under s 12(1)(a) of the Anti‑Discrimination Act.  In McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 (“McLean”) at 850, Griffith CJ referred to and applied the rule as stated by Brewer J in Knox County v Ninth National Bank of the City of New York (1893) 147 US 91 at 97 that:

“It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.”

From time to time since then, this rule has been applied by the High Court and other courts in various circumstances:  see, for example, Dawson v Westpac Banking Corporation (1991) 104 ALR 295 at 304‑305 per Mason CJ, with Deane and McHugh JJ agreeing on this point. 

260               In the context of executive action (or public administration), this general rule is most commonly referred to as the presumption of regularity.  In the United States, in Lewis v United States (1929) 279 US 63 at 73, it was said:

“It is the settled general rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown.”

Having regard to the apparent genesis of the rule (see McLean above) it is unsurprising that a similarly‑formulated presumption of regularity is relied on to support executive or administrative action in this country. 

261               In his reasons for judgment, Weinberg J refers to numerous authorities concerning the presumption.  It therefore suffices here to refer by way of illustration only to one example, namely, Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154.  In that case, an issue arose as to the validity of a grant of a permissive occupancy over certain land, which turned in part on the authority of the Secretary of the Western Lands Commission to make it.  In discussing this issue, the New South Wales Court of Appeal accepted that the maxim “omnia praesumuntur rite esse acta” (everything is presumed to be rightly done) was applicable:  see 157 per Kirby P, 165 per McHugh JA and 169‑170 per Clarke A‑JA.  McHugh JA explained at 164:

“The secretary had purported to grant the permissive occupancy to Mr Mooring.  So the only question of the secretary’s authority which was outstanding was whether, in purporting to grant the occupancy, the secretary was acting pursuant to a delegation by the Minister.

In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475):

‘… One of the fundamental maxims of the law is the maxim “omnia praesumuntur rite esse acta”.  It has many applications …The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.’

The natural home of the maxim is public law.  Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.  Thus a person who acts in a public office is presumed to have been validly appointed to that office:  M’Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319.  And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit:  Pearce v City of Coburg [1973] VR 583.”

262               In this case, the evidence is that the Minister purported to make his first appointments to the Tribunal in November 1999 and, in so doing, anticipated the commencement of the Anti‑Discrimination Act in the next month.  Section 11(1) of the Acts Interpretation Act 1931 (Tas) makes it clear, however, that the appointments should not fail on this account:  see s 11(1)(c) and (d).  The Minister has, in any event, made appointments to the Tribunal subsequent to the coming into force of the Anti‑Discrimination Act.  In this circumstance, the appointments constitute presumptive evidence that the Minister exercised his discretion to establish the Tribunal, since this was a pre-requisite to the appointment of the Tribunal’s members.  There being no contrary evidence, the Court should act on the basis that the Tribunal has been established pursuant to s 12(1) of the Anti‑Discrimination Act.

Disposition

263               For the reasons stated earlier, I would uphold the Commonwealth’s application on the basis that the word “person” in s 16 of the Anti‑Discrimination Act did not extend to it.  Accordingly, I would make the declarations sought in [1.1] and [1.2] of the Commonwealth’s application.  The Commonwealth does not seek costs.

Associate:

Dated:         13 June 2008