Australia: Can A State Or Territory Tribunal Hear A Dispute Involving The Commonwealth?

Last Updated: 28 December 2008
Article by James Stellios

Key Point

  • There are important jurisdictional issues that need to be considered when the Commonwealth is involved in State or Territory tribunal proceedings.

State and Territory tribunals exercise a range of functions. Many of these functions can be described as administrative-type functions, whereas others are functions traditionally characterised as judicial in nature. It is not uncommon for tribunal proceedings to be instituted against the Commonwealth or a Commonwealth officer. Such proceedings, however, give rise to a range of tricky jurisdictional issues. For jurisdiction to be exercised, it first needs to be established that the State or Territory legislation is intended to apply to the Commonwealth. If there is no such intention, then the tribunal jurisdiction cannot be exercised in proceedings involving the Commonwealth or its officers. Even if there is such an intention, a question arises as to whether it is constitutionally permissible for the State or Territory tribunal in question to exercise that jurisdiction.

These issues have been highlighted by two recent developments: the decision of a Full Court of the Federal Court in Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104 and the creation of the ACT Civil and Administrative Tribunal (ACAT). This article will consider these two developments.

Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104

Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104 is the next instalment in a series of cases dealing with the question of whether a State tribunal can exercise the judicial power of the Commonwealth. The second respondent, Mr Nichols, had attended a Centrelink Customer Service Centre. As a result of prostate cancer, Mr Nichols suffered groin pain and asked whether he could speak to the counter staff without waiting in the long queue. He was offered a chair, but was told to wait in line. He later filed a complaint with the Tasmanian Anti-Discrimination Tribunal claiming that he had been discriminated against on the ground of his disability.

The Commonwealth sought a declaration from the Federal Court that the Anti-Discrimination Act 1998 (Tas) did not intend to apply to the Commonwealth as a "person" against whom a complaint could be made and, even it did, could not do so consistently with constitutional requirements. The constitutional argument, in short, was that a dispute with the Commonwealth involving an exercise of judicial power could only be heard in federal jurisdiction (under section 75(iii) of the Constitution), and federal jurisdiction had not been, and could not be, conferred on a body that was not a "court".

A majority of the Court (Justices Weinberg and Kenny, Justice Goldberg dissenting) held that, as a matter of statutory interpretation, the Anti-Discrimination Act does not manifest an intention to apply to the Commonwealth. In doing so, they rejected the contrary view of Justice Heerey in the earlier case of Commonwealth v Wood (2006) 148 FCR 276. Their conclusions were reached despite the inclusion in the Anti-Discrimination Act of the standard form provision that states: "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". The legislation, it was said by the majority, had to be viewed as a whole, and there were sufficient indications that the Tasmanian Parliament did not intend the provisions to apply to the Commonwealth. These contrary indications included the express inclusion of Tasmanian State authorities, departments and local government, but no mention of Commonwealth agencies; the differential treatment of State agencies and other "persons"; and the imposition of penalties on persons for non-compliance. In light of those aspects of the legislative scheme, a clearer legislative intention was needed for the legislation to apply to the Commonwealth.

Only Justice Kenny considered the constitutional question. She concluded that:

  • the Tribunal purported to exercise power which could be characterised as Commonwealth judicial power
  • the dispute before the Tribunal involved a matter of federal jurisdiction as the Commonwealth was a party; and
  • federal jurisdiction has only been (and can only be) conferred on State "courts".

As to whether the tribunal was a State "court", Justice Heerey in Commonwealth v Wood had earlier decided that it was. That conclusion was in contrast to the decisions of the NSW Court of Appeal that the NSW Administrative Decisions Tribunal and the NSW Workers Compensation Commission were not courts for the purposes of exercising federal jurisdiction (see, respectively, Trust Company of Australia (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany's) (2006) 66 NSWLR 77 and Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282).

In the present case, Justice Kenny considered that, to be a "court" a body has to be independent and impartial. Those requirements, she said, "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". The problem was that the Tasmanian Anti-Discrimination Act provides no security of tenure for Tribunal members: they are subject to removal as the Minister sees fit. Thus, the Tribunal could not be considered to be a court for the purposes of exercising federal jurisdiction. In her view, in reaching the opposite conclusion, Justice Heerey in Wood had given insufficient weight to the absence of security of tenure.

Thus, Justice Kenny concluded, if the Commonwealth were considered to be a "person" for the purposes of the Anti-Discrimination Act, then the Tasmanian legislation would be invalid to the extent that it purported to confer jurisdiction on the Tribunal to hear a dispute against the Commonwealth.

ACT Civil and Administrative Tribunal

The ACT Government has followed the lead of New South Wales, Victoria and Western Australia in reforming its administrative tribunal system. The creation of what are widely referred to as "super tribunals" by these governments reflects a reform agenda to provide cheaper, quicker and more efficient access to justice. The ACT version of this "super tribunal", ACAT, has now been created and will commence operation in 2009. The tribunal will replace 15 existing tribunals including the ACT Administrative Appeals Tribunal, the Mental Health Tribunal and the Discrimination Tribunal.

In addition to the consolidation of existing tribunals, ACAT will have the small claims jurisdiction currently exercised by the ACT Magistrates Court. Accordingly, once it commences operation, ACAT will have jurisdiction to hear civil disputes including contracts claims, tort actions, debt recovery proceedings and claims relating to property, where the claim in question is less than $10,000. Litigants will no longer be permitted to file these claims in the Magistrates Court. There is also the possibility for claimants to bring themselves under the $10,000 limit by forgoing any excess claim, and for parties to agree for ACAT to hear a claim greater than $10,000. ACAT's orders will be deemed to be made by the Magistrates Court and enforceable in the same way as any other Magistrates Court order.

However, as Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) highlights, there will be tricky questions as to whether ACAT can exercise small claims jurisdiction when proceedings involve the Commonwealth or its officers. Those claims involve an exercise of power that has been traditionally accepted to be Commonwealth judicial power and, with the Commonwealth as a party, only a "court" can exercise this federal jurisdiction. Of course, this will raise the further question of whether ACAT is a "court" for the purpose of exercising federal jurisdiction. However, whether or not it is ultimately determined to be a "court", there will be important jurisdictional issues that the Commonwealth and its officers will need to be aware of where they are involved in small claims litigation before ACAT.


Both the decision in Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) and the creation of ACAT serve as a reminder that there are important jurisdictional issues to be considered when proceedings are instituted against the Commonwealth or its officers in State and Territory tribunals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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