Stephen McDonald SC

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.