“I’m sorry, I can’t hear you … my jurisdiction keeps dropping out” Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Stephen McDonald SC
20.05.2022
Introduction
Each of the paragraphs of s 75 and s 76 of the Commonwealth Constitution identifies a class of matters with a federal aspect. The scheme of the Constitution is that matters of those kinds can only be determined in the exercise of judicial power by ‘courts’. Section 77 of the Constitution enables the Commonwealth Parliament to determine the extent to which judicial power in such matters is exercised by the High Court, other federal courts, and state courts.
State Parliaments may create tribunals which are not ‘courts’, and may confer upon such tribunals aspects of both the administrative power and the judicial power of the state. However, the power of state Parliaments with respect to state non-court tribunals does not extend to investing them with judicial power to decide matters of the kinds identified in ss 75 and 76 of the Constitution. A general grant of jurisdiction to a non-court tribunal under state law will thus be construed as excluding jurisdiction over matters of those kinds.
These principles were established by the High Court’s decision in Burns v Corbett [2018] HCA 15; 265 CLR 304. Burns v Corbett had involved a claim in a state non-court tribunal between residents of different states – the subject matter identified in s 75(iv). The recent decision of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 concerned the application of these principles in a different context: it concerned a claim that was said to give rise to the kind of federal matters identified in sub-ss 76(i) and 76(ii) of the Constitution. This post will discuss the decision in Citta Hobart, before turning to the practical problems posed by the substantial limits – confirmed by these two cases – on state legislative power in respect of the jurisdiction of state non-court tribunals.
Citta Hobart
The appellants in Citta Hobart were the developer and owner of land for the “Parliament Square” development in Hobart, Tasmania.
Mr Cawthorn, who has paraplegia and relies on a wheelchair for mobility, made a complaint to the Tasmanian Anti-Discrimination Tribunal, to the effect that the appellants had ‘discriminated on the ground of disability in the provision of a facility’ by failing to provide adequate wheelchair access in the construction of the Parliament Square development. He alleged that this constituted direct and indirect disability discrimination under ss 14, 15 and 16(k) of the Anti-Discrimination Act 1998 (Tas).
The appellants’ defence to this claim included a contention that the Commonwealth, in enacting the Disability Discrimination Act 1992 (Cth), had exhaustively ‘covered the field’ of disability discrimination. The appellants contended that, to the extent that the Tasmanian Act imposed any additional duties over and above those imposed by the Commonwealth Act, it was inconsistent with the Commonwealth Act, and was therefore – by reason of s 109 of the Constitution – invalid (in the sense of ‘inoperative’) to the extent of that inconsistency. The appellants claimed that they had complied with the duties imposed by the Commonwealth Act and so could not have contravened the Tasmanian Act.
Because their defence relied upon s 109 of the Constitution and Commonwealth law, the appellants contended that the proceeding in the Anti-Discrimination Tribunal involved a ‘matter’ of the kind identified in s 76(i) (a matter ‘arising under [the] Constitution or involving its interpretation’) and of the kind identified in s 76(ii) (a matter ‘arising under any laws made by the [Commonwealth] Parliament’). For present purposes, it is convenient generally to refer only to s 76(i), but the plurality judgment makes it clear that the same principles apply in respect of s 76(ii).
The Tasmanian Anti-Discrimination Tribunal reasoned (at [43]-[46]) that it lacked jurisdiction to hear the matter, because the claim involved a matter arising under the Constitution. From that decision, Mr Cawthorn appealed to the Full Court of the Supreme Court of Tasmania. The Full Court held that the appellants’ s 109 defence failed on its merits (ie, the appellants’ argument was wrong), and made orders remitting the matter to the Anti-Discrimination Tribunal to decide Mr Cawthorn’s claim.
On further appeal by the developers, the High Court reversed the Full Court’s decision and confirmed that the Tribunal was correct to hold that it did not have jurisdiction in the matter. A joint judgment was delivered by Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ. In a separate concurring judgment, Edelman J agreed in the result for similar reasons.
The state Tribunal exercises judicial power
The first issue that arose in the High Court proceedings was whether the Anti-Discrimination Tribunal, in determining complaints of disability discrimination, exercises the judicial power of the state. The High Court unanimously accepted that it did: at [12]-[16] (plurality), [53]-[57] (Edelman J). This was on the basis that orders of the Tribunal under s 89 of the Anti-Discrimination Act 1998 (Tas), made within jurisdiction, are immediately binding on the parties.
The Court rejected an argument, advanced by the Australian Human Rights Commission (appearing as amicus curiae), to the effect that a jurisdiction which would otherwise involve the exercise of judicial power by the Tribunal could be transformed into an exercise of administrative power by disapplying s 90 of the Act, which provides for the registration and enforcement of orders.
The Tribunal’s ‘jurisdiction’ to determine its own jurisdiction
The High Court also unanimously accepted that, when the issue of its jurisdiction arose, the Anti-Discrimination Tribunal was required to consider and form a view as to whether it had jurisdiction to determine the complaint. The plurality and Edelman J disagreed about the correct characterisation of what the Tribunal was doing when it took this step.
The plurality held that ‘the power which a … tribunal necessarily has to ensure that it remains within the limits of its jurisdiction’ would take its nature – judicial or non-judicial – from the nature of the jurisdiction itself. So, if the Tribunal would exercise judicial power in determining a complaint, then its decision as to whether it had jurisdiction would also be an exercise of judicial power. The plurality described this as ‘jurisdiction to decide its own jurisdiction’: at [22]-[23], [25]-[26]. However, the plurality emphasised that ‘the judicial determination of jurisdiction’ was not ‘conclusive’: if the Tribunal wrongly determined that it had jurisdiction, and proceeded to determine the dispute before it, ‘such order as is ultimately made in the purported exercise of jurisdiction is wholly lacking in legal force’: at [28].
Justice Edelman likewise accepted that the ‘first duty of any Court, in approaching a cause before it, is to consider its jurisdiction’, but considered that ‘[t]hat consideration of whether jurisdiction exists is not, by definition, an exercise of jurisdiction’. In deciding whether jurisdiction exists, a court or tribunal is not exercising judicial power, but merely considering the limits of its legal authority to ensure that it does not do something it is has no jurisdiction to do: at [62]-[64].
So, while there is certainly a difference in terminology here (Edelman J avoids the apparent paradox of ‘jurisdiction to decide jurisdiction’) the substantive effect of the two judgments seems to be essentially the same. A tribunal or court can and must first decide whether it has jurisdiction, and act in accordance with its own decision; but its decision on that question is not conclusive.
In the present case, this meant that the Anti-Discrimination Tribunal was correct to consider for itself whether the claim before it involved a ‘matter arising under [the] Constitution or involving its interpretation’, and whether the Tribunal thus lacked jurisdiction with respect to that claim.
The test for a matter ‘arising under’ the Constitution
Both the plurality and Edelman J accepted that the answer to the question of whether a proceeding involves a ‘matter arising under [the] Constitution or involving its interpretation’ must be the same whether the question arises in a tribunal or a court: at [31] (plurality), [60]-[61], [68] (Edelman J). The Court held that:
one situation in which a matter ‘aris[es] under [the] Constitution’ is where a constitutional argument is relied upon as a defence;
that characterisation then applies to the whole of the matter – a matter encompasses all claims made within the scope of a controversy;
the characterisation of a matter as one ‘arising under [the] Constitution’ does not depend upon the merit of the constitutional argument raised; and
even if the constitutional issue is later resolved, or even withdrawn, the whole matter retains its character as a matter arising under the Constitution.
But what about where a constitutional issue appears spurious, or only barely arguable? The plurality said (at [35]-[37], emphasis added):
… it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is “unarguable” or if the claim or defence is “colourable” in that it is made for the purpose of “fabricating” jurisdiction.
… But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.
The plurality expressly rejected a suggestion that a claim or defence relying on the Constitution ‘must meet a threshold of arguability consistent with the raising of the claim or defence in a court not amounting to an abuse of process of that court’, while accepting that an ‘incomprehensible or nonsensical claim or defence’ would be incapable of giving rise to a matter of the kind referred to in s 76(i) or 76(ii) of the Constitution.
In contrast, Edelman J considered that, for a dispute to warrant the description of a matter ‘arising under [the] Constitution’, there must be a ‘real question’ of that kind, and that no ‘real question’ would arise if the claim was of a kind which, if it were raised in a court, would constitute an abuse of process of that court. So, Edelman J would have accepted a slightly higher threshold, excluding claims or defences that were ‘manifestly hopeless’: at [73], [77].
On either approach, this is a very low bar. Both the plurality and Edelman J found that the defence raised by the appellants in the Tribunal led to the conclusion that the matter before the Tribunal was one ‘arising under [the] Constitution’. It could not be said that the defence was ‘incapable on its face of legal argument’ or ‘not genuinely raised or so incoherent as to be insusceptible of judicial determination on [its] merits’ (plurality at [10], [45]) and nor was it ‘manifestly hopeless’ (Edelman J at [79], [81]).
It followed that the Tribunal was correct to find that it had no jurisdiction to hear and determine the proceedings before it.
Couldn’t we divide up the matter and have a state court determine the constitutional issue?
The plurality also addressed a suggestion that the proper course would have been for the Tribunal, instead of dismissing Mr Cawthorn’s claim for want of jurisdiction, instead to adjourn the proceeding while the constitutional issue was decided by a court. That would not solve the problem, they said, because the proceeding before the Tribunal involved one single ‘matter’ for the purposes of s 76(i) and s 76(ii) of the Constitution, and that would still be so even if the constitutional aspect of the dispute was resolved in the exercise of judicial power by a court: at [33] (plurality); see also [82]-[85] (Edelman J).
The practical problem, and possible solutions
Citta Hobart confirms that the limit on state legislative power with respect to state tribunals is a substantial one: it means that there is a significant class of cases which cannot be determined by state tribunals in the exercise of state judicial power. Practically, it is also quite easy for a defendant, by raising an argument that relies on the Commonwealth Constitution or a law of the Commonwealth, to ensure that the proceedings relate to a federal matter, and are outside the jurisdiction of a state tribunal. As has previously been noted, this has the potential to undermine the efficacy of state tribunals as a forum for dispute resolution.
Perhaps the most obvious solution to this problem is for state legislation to reconstitute state tribunals (at least when they perform functions that involve the exercise of judicial power) as true ‘courts’ for the purposes of ch III of the Constitution. This solution would likely come at the cost of some flexibility in terms of the arrangements regarding appointment and tenure of officers of state tribunals, because the Kable doctrine imposes certain limits on the powers of state Parliaments with respect to the structure and functions of state ‘courts’. Notably, the Queensland Civil and Administrative Tribunal is established as a court, avoiding the kinds of issues that arose in Burns v Corbett and Citta Hobart.
Another solution which has been implemented in various jurisdictions – including in relation to the Tasmanian Civil and Administrative Tribunal, which has now replaced the Anti-Discrimination Tribunal – is to provide for a statutory mechanism by which proceedings that raise a federal aspect (ie, a matter of one of the kinds identified in s 75 or s 76 of the Constitution) can be referred to a state court (eg, the Magistrates Court in Tasmania), which then has jurisdiction to hear those proceedings. In at least some jurisdictions, some members of state tribunals also hold commissions as magistrates, so from the point of view of the disputants, the formal referral to the Magistrates Court may make little practical difference. This validity and effectiveness of this solution has not been tested in the High Court.
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Stephen McDonald SC is a barrister at Hanson Chambers, and an Adjunct at the University of Adelaide Law School.
Suggested citation: Stephen McDonald, ‘“I’m sorry, I can’t hear you … my jurisdiction keeps dropping out” Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16” on AUSPUBLAW (20 May 2022) <https://www.auspublaw.org/blog/2022/05/im-sorry-i-cant-hear-you-my-jurisdiction-keeps-dropping-out-citta-hobart-pty-ltd-v-cawthorn>