BY ANNA OLIJNYK
We live in an age of tribunals. Although tribunals existed at the time of federation, the framers of the Australian Constitution could never have imagined the prominence of administrative tribunals in our justice system today. Small wonder, then, that awkwardness ensues when tribunals meet Chapter III of the Constitution. While the issue of the exercise of judicial power by State tribunals has been the subject of several Supreme and Federal Court cases, the recent judgment of Leeming JA in Burns v Corbett has the potential to remove some of that awkwardness.
The civil and administrative tribunals established in each state (except Tasmania, so far) determine thousands of matters each year, in areas including consumer disputes, residential tenancies, guardianship and vocational regulation. Compared to courts, the constitutional restraints on the functions, powers and processes that may be conferred on state tribunals appear relatively modest. Tribunals can be flexible, accessible and efficient vehicles for delivering justice to a large number of individuals.
Sometimes, State parliaments choose to confer judicial power on State tribunals. This policy choice might be made because, for example, it is desirable for tribunal users to secure a binding, enforceable resolution of their dispute. On its own, this is not a problem. There is no prohibition on state non-judicial bodies exercising state judicial power. Complexity arises when a state tribunal purports to exercise judicial power in a matter falling within one of the classes identified in ss 75 and 76 of the Constitution.
It is plainly impermissible for a State tribunal to exercise federal judicial power: the Commonwealth cannot confer judicial power on any non-judicial body, including a State tribunal. This raises a threshold issue as to whether some so-called tribunals are actually courts for Chapter III purposes. For the remainder of this post, references to State ‘tribunals’ should be taken as references to non-judicial tribunals. And State parliaments lack power to confer federal judicial power.
But a State tribunal, in the exercise of its ordinary functions involving the exercise of state judicial power, might stumble upon a dispute between residents of different States; or to which the Commonwealth is a party; or that raises a constitutional issue; or in which a party seeks to rely on Commonwealth legislation.
Is it constitutionally permissible for a State tribunal to exercise judicial power in this situation? The High Court is yet to rule on this question. Several state appellate courts and the Federal Court have considered the question, and answered ‘no’, albeit not always following the same reasoning process, nor holding that the same consequences followed. This has become a highly technical, confused area of law. Although it only affects a small proportion of the cases tribunals deal with each year, in that small handful of cases the issue severely affects the ability of the tribunals to deliver efficient, accessible resolutions.
Against that background, Leeming JA’s judgment in Burns v Corbett came as something of an early Easter egg for those who have been following this area of law with increasing bewilderment. The judgment approaches the issue in a way that previous judgments have not. The solution Leeming JA offers is comparatively straightforward and conceptually satisfying. It also offers a potential way out of the inconvenience created by the limits on state tribunals’ power.
The constitutional and statutory framework
Before turning to Burns v Corbett and its lessons for the exercise of judicial power by State tribunals, it is necessary to review the key constitutional and legislative provisions governing the exercise of judicial power by State courts. This is not a tangent; it turned out to be pivotal in Leeming JA’s reasoning.
Sections 75 and 76 of the Constitution, of course, set out the matters in which the High Court has, or may be invested with, original jurisdiction. Section 77 then provides:
With respect to any of the matters mentioned in the last two sections the Parliament may make laws
(i) Defining the jurisdiction of any federal court other than the High Court;
(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii) Investing any court of a State with federal jurisdiction.
In exercise of its power under s 77, Parliament has enacted s 39 of the Judiciary Act 1903 (Cth). That section provides, in part:
(1) 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.
(2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it … subject to the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.
Section 39 originally imposed further conditions and restrictions, but these have gradually been repealed (most recently in 2006).
In Burns v Corbett, Leeming JA observes of s 39 that there ‘is probably no law in the Australian legal system whose effect is more profound …, and which is so poorly understood’ (at ). His Honour then explained that the immediate effect of the section is to withdraw the jurisdiction State courts would otherwise have in the matters identified in ss 75 and 76, and then to re-invest State courts with that jurisdiction, subject to the condition in s 39(2)(a). The result is that, whenever State courts exercise jurisdiction in matters described in ss 75 and 76, they exercise federal jurisdiction. Those courts no longer have State jurisdiction in those matters; s 39(1) removes it.
But what does this say about the exercise of judicial power, in respect of the matters in ss 75 and 76, by State tribunals? On the one hand, nothing – at least expressly. Section 77 does not, on its face, empower the Commonwealth to legislate with respect to State tribunals; nor does s 39, on its face, remove jurisdiction from State tribunals. But on the other hand, Chapter III of the Constitution and s 39 of the Judiciary Act create a scheme by which the exercise of judicial power by State and federal courts in respect of the matters in ss 75 and 76 is subject to a uniform, carefully designed, series of conditions. It would seem odd if the States could undermine this scheme by conferring judicial power in those matters on their tribunals. Is this sufficient to overcome the absence of any express reference to tribunals in the relevant constitutional and statutory provisions?
Previous judgments considering the issue have often glossed over this issue, tending to treat the position of State tribunals as not relevantly different from State courts, without fully exploring the possible differences between the two types of institutions, or the significance of Chapter III’s silence on tribunals.
Burns v Corbett
Now to Burns v Corbett. The issue for the NSW Court of Appeal in this case was whether the NSW Civil and Administrative Tribunal (‘NCAT’) could determine a claim, arising under NSW legislation, by a resident of New South Wales against residents of Queensland and Victoria (and thus a matter identified in s 75(iv) of the Constitution). It was common ground that NCAT was not a ‘court’, and that it was exercising judicial power in this matter.
The constitutional arguments were largely developed by two interveners: the Commonwealth and New South Wales. The Commonwealth argued that NCAT did not have jurisdiction; New South Wales argued that it did.
Leeming JA’s approach to the constitutional issues is best understood by reference to the arguments advanced by the Commonwealth. The Commonwealth’s primary submission was that the States are constitutionally prohibited from conferring judicial power in respect of the matters in ss 75 and 76 on non-judicial bodies. In the alternative, the Commonwealth submitted that conferral of such powers on NCAT was inconsistent with s 39 of the Judiciary Act 1903 (Cth) and therefore inoperative under s 109 of the Constitution. Leeming JA (Bathurst CJ and Beazley P concurring) rejected the primary submission but accepted the alternative submission.
The Commonwealth’s Primary Submission
The Commonwealth’s primary submission drew upon various statements – principally that of Gaudron J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 102 – to the effect that Chapter III created an ‘integrated Australian judicial system for the exercise of the judicial power of the Commonwealth’. For State tribunals to exercise judicial power in the matters in ss 75 and 76 would fragment that integrated system. This submission rested on both the structure of Chapter III and the text of s 77.
The problem with this submission, for Leeming JA, was that
Chapter III does not itself mandate a uniform national system within the classes of matters falling within federal jurisdiction. Whether or not there is such uniformity depends on the extent to which the legislative power in s 77 is exercised. The conferral of legislative power by s 77 says nothing of whether such power is to be exercised, and, if so, how it is to be exercised.
On this view, the uniform nature of the exercise of federal judicial power was the result of the Commonwealth’s decision to enact s 39 of the Judiciary Act, rather than being a constitutional requirement.
Further, Leeming JA observed that, at the time of federation, some state tribunals (he gave the example of NSW’s Local Land Boards) exercised judicial power; and ss 106, 107 and 108 of the Constitution saved State constitutions, powers and laws. He also referred to settled law that, after federation, State courts retained their pre-existing jurisdiction in matters falling within ss 75 and 76 (for example, matters in diversity jurisdiction) until s 39(1) of the Judiciary Act removed it. In other words, it seemed that the Constitution allowed State courts and tribunals to exercise their pre-existing jurisdiction in matters falling within ss 75 and 76, subject to any Commonwealth legislation to the contrary.
For these reasons, his Honour concluded that the text and structure of Chapter III did not support an implication preventing State tribunals from exercising jurisdiction in the matters identified in ss 75 and 76. This conclusion was a departure from several earlier judgments of Supreme and Federal court judges, referred to earlier.
The Commonwealth’s alternative submission
The Commonwealth’s alternative submission fared better. This submission was that any State law authorising a tribunal to exercise judicial power in a matter falling within s 39 of the Judiciary Act would be inconsistent with s 39, and thus inoperative pursuant to s 109 of the Constitution. New South Wales pointed out that both s 39(2) of the Judiciary Act or s 77(ii) of the Constitution speak only of the jurisdiction of the courts of the States, saying nothing about tribunals. In the absence of any reference to tribunals, New South Wales submitted, s 39 could contain no ‘implied negative stipulation’ about the jurisdiction of State tribunals.
Leeming JA accepted the Commonwealth’s submissions on this point. For his Honour, it was crucial that the ‘essence’ of s 39(2) is (at )
to invest federal jurisdiction conditionally, so as to ensure that appeals [lie] to the High Court, and to do so universally, in all matters falling within ss 75 and 76. (Emphasis in original.)
When s 39(2) was understood in this way, it was a short step to conclude that a conferral of State judicial power in matters falling within ss 75 or 76 that was not subject to the conditions in s 39(2) would ‘alter, impair or detract’ from the operation of s 39(2). Leeming JA explained this conclusion was consistent with authority on the exercise, by State courts, of State judicial power in matters falling within ss 75 and 76 (at - With inconsistency established in this way, it was unnecessary to go further and decide whether s 39(2) ‘covered the field’ or contained an ‘implied negative stipulation’.
There appears to be a lingering question here. On Leeming JA’s analysis, s 39(2) has the effect of ousting the jurisdiction of State tribunals. But what is the source of the Commonwealth’s power to legislate with respect to the jurisdiction of State tribunals? The most obvious answer is that this is incidental to the power, in s 77(ii), to make laws ‘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’. But this is a little difficult to square with the words of s 77(ii), which expressly refer to courts and ignore tribunals. This difficulty may be overcome by adopting an expansive interpretation of the grant of power in s 77(ii). But Burns v Corbett does not engage with these questions; they must await another day.
The result was, therefore, that NCAT did not have jurisdiction to exercise judicial power in a dispute between residents of different States.
One difficulty of the state tribunals cases has been determining what follows from a conclusion that a tribunal cannot exercise judicial power in matters falling within ss 75 and 76. The conclusion most often reached has been that the tribunal lacks jurisdiction to determine such a matter. That was the outcome, once again, in Burns v Corbett.
It is possible to imagine an alternative outcome: that the tribunal could determine the matter, but not in the exercise of judicial power. This could be workable in those jurisdictions (such as NSW) where the binding and authoritative nature of the tribunal’s orders flows from the registration of those orders in a court. If the provision allowing for registration were invalid to the extent it applied to matters falling within ss 75 and 76, this would allow the tribunal to determine such disputes without exercising judicial power. This solution has been considered in some cases, but has not yet found favour.
The case law on the exercise of judicial power by State tribunals has come to resemble a dense, messy thicket. The judgments on the constitutional issues are highly technical and the reasoning often divergent and sometimes contradictory. The practical results of those judgments are inconvenient: the fragmentation and ultimate frustration of proceedings in tribunals that are intended to provide accessible, efficient justice.
In one sense, Burns v Corbett just adds another layer of foliage to the thicket. It is yet another intermediate appellate court judgment; it offers yet another different approach to the constitutional question; and it still leaves state tribunals unable to exercise judicial power in disputes falling within the terms of ss 75 and 76.
But in another sense – and at the risk of straining the metaphor – Leeming JA’s judgment could provide the machete that hacks through the thicket. For one thing, the rejection of a constitutional implication preventing State tribunals exercising judicial power in matters falling within ss 75 and 76, together with the reliance on s 109, places the power to resolve the situation in the Commonwealth’s hands. The Commonwealth could remove the difficulties faced by State tribunals simply by amending s 39(2) of the Judiciary Act to carve out an exception for State tribunals (subject to the question of legislative power, discussed above). Admittedly, it seems unlikely this will happen any time soon; the Commonwealth’s submissions in Burns v Corbett indicate a strong preference for restricting judicial power in ss 75 and 76 matters to courts. But a legislative amendment is still more likely than the amendment required to displace a constitutional implication.
The reasoning offered by Leeming JA (himself a noted authority on Chapter III) is also, arguably, the clearest judicial exposition of the constitutional issues thus far. This is, no doubt, partly because the preceding cases helped to sharpen the arguments. Leeming JA’s reliance on s 39 of the Judiciary Act, rather than a constitutional implication, provides a logical and persuasive method of reconciling the textual, historical and policy elements of the constitutional dilemmas posed by State tribunals in the Australian judicial system.
 Commonwealth v Anti-Discrimination Tribunal (2008) 169 FCR 85 (Kenny J); Owen v Menzies  2 Qd R 327; Qantas Airways Ltd v Lustig (2015) 228 FCR 148; Sunol v Collier (2012) 81 NSWLR 619; A-G (NSW) v 2UE Sydney Pty Ltd (2006) 226 FLR 62; Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Caf Tiffany’s) (2006) 66 NSWLR 77.
Dr Anna Olijnyk is a lecturer at Adelaide Law School, University of Adelaide.
Suggested citation: Anna Olijnyk ‘Burns v Corbett: the latest word on State tribunals and judicial power‘ on AUSPUBLAW (19 April 2017) <https://auspublaw.org/2017/04/the-latest-word-on-state-tribunals-and-judicial-power/>