Burns v Corbett

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No S183/2017

GARRY BURNS  APPELLANT

AND

TESS CORBETT & ORS  RESPONDENTS

Matter No S185/2017

GARRY BURNS  APPELLANT

AND

BERNARD GAYNOR & ORS  RESPONDENTS

Matter No S186/2017

ATTORNEY GENERAL FOR NEW SOUTH WALES                  APPELLANT

AND

GARRY BURNS & ORS  RESPONDENTS

Matter No S187/2017

ATTORNEY GENERAL FOR NEW SOUTH WALES                  APPELLANT

AND

GARRY BURNS & ORS  RESPONDENTS

Matter No S188/2017

STATE OF NEW SOUTH WALES  APPELLANT

AND

GARRY BURNS & ORS  RESPONDENTS

Burns v Corbett
Burns v Gaynor
Attorney General for New South Wales v Burns
Attorney General for New South Wales v Burns
New South Wales v Burns

[2018] HCA 15

18 April 2018

S183/2017, S185/2017, S186/2017, S187/2017 & S188/2017

ORDER

Matter No S183/2017

1. Appeal dismissed.

2. The appellant pay the first respondent's costs.

Matter No S185/2017

1. Appeal dismissed.

2. The appellant pay the first respondent's costs.

Matter No S186/2017

1. Appeal dismissed.

2. The appellant pay the second respondent's costs.

Matter No S187/2017

1. Appeal dismissed.

2. The appellant pay the second respondent's costs.

Matter No S188/2017

1. Appeal dismissed.

2. The appellant pay the second respondent's costs.

On appeal from the Supreme Court of New South Wales

Representation

M G Sexton SC, Solicitor-General for the State of New South Wales and K M Richardson SC with M O Pulsford for the Attorney General for New South Wales and for the State of New South Wales (instructed by Crown Solicitor's Office (NSW))

K T Nomchong SC with K L Madgwick for Garry Burns in matters S183/2017 and S186/2017 and with H E Jewell for Garry Burns in matters S185/2017, S187/2017 and S188/2017 (instructed by Allens in S183/2017 and S186/2017, Lander & Rogers Lawyers in S185/2017 and S188/2017, and Dowson Turco Lawyers in S187/2017)

S P Donaghue QC, Solicitor-General of the Commonwealth and C L Lenehan with J Freidgeim for the Attorney-General of the Commonwealth (instructed by the Australian Government Solicitor)

P E King with J A Loxton for Tess Corbett (instructed by Robert Balzola and Associates)

P E King for Bernard Gaynor (instructed by Robert Balzola and Associates)

Submitting appearance for Civil and Administrative Tribunal of New South Wales in S185/2017, S187/2017 and S188/2017

Interveners

P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland intervening (instructed by Crown Solicitor (Qld))

P D Quinlan SC, Solicitor-General for the State of Western Australia, with C I Taggart for the Attorney-General for the State of Western Australia intervening (instructed by State Solicitor (WA))

M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S K Kay, for the Attorney-General of the State of Tasmania intervening (instructed by Solicitor-General of Tasmania)

K L Walker QC, Solicitor-General for the State of Victoria, with K E Foley for the Attorney-General for the State of Victoria intervening (instructed by Victorian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Burns v Corbett
Burns v Gaynor
Attorney General for New South Wales v Burns
Attorney General for New South Wales v Burns
New South Wales v Burns

Constitutional law (Cth) – Chapter III – Where complaints made under Anti‑Discrimination Act 1977 (NSW) came before Civil and Administrative Tribunal of New South Wales ("NCAT") – Where parties to disputes residents of different States – Where common ground that NCAT exercised State judicial power in hearing and determining disputes – Where common ground that NCAT not a "court of a State" – Whether Ch III of Constitution contains implication preventing any party to federal compact from conferring adjudicative authority in respect of matters listed in ss 75 and 76 of Constitution on organ of government, federal or State, other than a court referred to in Ch III.

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Where Civil and Administrative Tribunal Act 2013 (NSW) purports to confer jurisdiction on NCAT to determine disputes between residents of different States – Whether State law alters, impairs or detracts from operation of Judiciary Act 1903 (Cth), s 39(2).

Words and phrases – "adjudicative authority", "administrative tribunal", "alter, impair or detract", "belongs to or is invested in", "constitutional implication", "court", "court of a State", "diversity jurisdiction", "federal Judicature", "federal jurisdiction", "inconsistency", "integrated national court system", "judicial power", "jurisdiction", "matter", "negative implication", "residents of different States", "State jurisdiction".

Constitution, Ch III, ss 51(xxxix), 71, 73(ii), 75, 76, 77, 106, 107, 108, 109.
Judiciary Act 1903 (Cth), ss 38, 39.
Anti‑Discrimination Act 1977 (NSW), ss 49ZT, 114.
Civil and Administrative Tribunal Act 2013 (NSW), ss 28(2), 29(1), 32.
Interpretation Act 1987 (NSW), s 31.

1. KIEFEL CJ, BELL AND KEANE JJ. The first issue in these appeals is whether the Commonwealth Constitution precludes the Parliament of a State from conferring jurisdiction in respect of a matter between residents of different States within s 75(iv) of the Constitution on a tribunal which is not one of the "courts of the States" referred to in s 77 ("the Implication Issue"). If that issue were to be resolved in the negative, the further issue would arise as to whether a State law which purports to confer jurisdiction on such a tribunal in respect of such a matter is rendered inoperative by virtue of s 109 of the Constitution on the basis that it is inconsistent with s 39 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") ("the Inconsistency Issue").

2. The Implication Issue should be resolved in the affirmative. Considerations of constitutional text, structure and purpose compel the conclusion that a State law that purports to confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid.

3. Chapter III of the Constitution provides for the authoritative adjudication of matters listed in ss 75 and 76 by federal courts and by State courts co‑opted for that purpose as components of the federal Judicature. The provisions of Ch III exhaustively identify the possibilities for the authoritative adjudication of matters listed in ss 75 and 76. Adjudication by an organ of State government other than the courts of the States is not included within those possibilities and is therefore excluded from them. While s 77(ii) contemplates the possibility that, unless and until the Commonwealth Parliament legislates under s 77(iii), the courts of the States may continue to exercise their existing adjudicative authority, if any, finally to resolve such matters, it does not contemplate that this authority – the authority characteristically exercised by courts – will be exercised by agencies of the executive government of the States.

4. The Inconsistency Issue and the Implication Issue are distinct: the resolution of the Inconsistency Issue is not determinative of the Implication Issue, as is recognised in the approach taken by the court below and in the arguments presented to this Court. Whether Ch III denies the possibility of the conferral of adjudicative authority with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts referred to in Ch III by the legislature of any party to the federal compact is a question that is logically anterior to any question as to the power of the Commonwealth Parliament to override such a conferral of adjudicative authority by a State Parliament. Indeed, to treat a conclusion that the Commonwealth Parliament has no power to override such a conferral by a State Parliament as demonstrating a lacuna in the express provisions of Ch III which must be filled by implication in order to give effect to Ch III is merely to beg the question as to the true effect of Ch III.

5. Because the Implication Issue must be decided in the affirmative, it is unnecessary to resolve the Inconsistency Issue and the appeals to this Court must be dismissed.

   The proceedings

6. In 2013 and 2014, Mr Garry Burns made separate complaints to the Anti‑Discrimination Board of New South Wales about statements made by Ms Therese Corbett and Mr Bernard Gaynor, which Mr Burns claimed were public acts which vilified homosexuals, contrary to s 49ZT of the Anti-Discrimination Act 1977 (NSW) ("the AD Act"). The complaint against Ms Corbett was referred to the Administrative Decisions Tribunal of New South Wales. The complaint against Mr Gaynor was referred to the Civil and Administrative Tribunal of New South Wales ("NCAT").

7. At all material times, Mr Burns was a resident of New South Wales, Ms Corbett was a resident of Victoria and Mr Gaynor was a resident of Queensland[1].

   [1]Burns v Corbett (2017) 343 ALR 690 at 693 [5].

8. The AD Act allows complaints under that Act to be referred to NCAT[2].  A referral having been made, NCAT is empowered to dismiss the complaint in whole or in part (ss 102 and 108(1)(a)), to find the complaint substantiated in whole or in part (s 108(1)(b)) and to make interim and final orders (ss 105 and 108(2)). 

   [2]Sections 90B(5), 93A, 93B, 93C, 95(2).

9. Prior to the commencement of the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) on 1 January 2014, these provisions of the AD Act were in substantially the same terms as they are now, except that it was the Administrative Decisions Tribunal, rather than NCAT, to which complaints were to be referred[3]. By cl 3 of Sched 1 to the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), the Administrative Decisions Tribunal was abolished on 1 January 2014, and by s 7, NCAT was established that same day.

   [3]See Anti‑Discrimination Act 1977 (NSW), s 4(1), definition of "Tribunal" (as at 21 June 2013).

10. Part 3 of the NCAT Act deals with the jurisdiction of NCAT. Section 29(1) provides that NCAT has "general jurisdiction" over a matter if legislation other than the NCAT Act enables NCAT to make decisions or exercise other functions in respect of that matter, and the matter does not otherwise fall within NCAT's administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction. Where NCAT has determined a matter over which it has general jurisdiction, s 80(1) allows a party to appeal against the decision to an Appeal Panel of NCAT, which is in turn invested with jurisdiction to hear such appeals (s 32).

11. It may be noted that Pt 3A of the NCAT Act commenced operation on 1 December 2017, four days before these appeals came on for hearing[4].  It provides a mechanism for matters to be heard by an authorised court, instead of NCAT, if, upon an application for leave by a person with standing to make it, the court is satisfied that NCAT does not have jurisdiction to determine the application because its determination involves the exercise of federal diversity jurisdiction (s 34B).  It is unnecessary to consider the operation of these new provisions further in order to determine these appeals.

    [4]See Justice Legislation Amendment Act (No 2) 2017 (NSW), Sched 1.2 [3].

12. The Administrative Decisions Tribunal found that Ms Corbett had breached the AD Act and ordered her to make a public and private apology[5].  She appealed unsuccessfully to the newly constituted Appeal Panel of NCAT[6]. The Appeal Panel's orders were entered in the Supreme Court pursuant to s 114 of the AD Act. Thereafter, Mr Burns brought separate proceedings in the Supreme Court charging Ms Corbett with contempt for failing to make either apology. As part of her defence to that charge, Ms Corbett contended that neither the Administrative Decisions Tribunal nor the Appeal Panel of NCAT had jurisdiction in the dispute, because she is a resident of Victoria. That aspect of her defence was removed to the Court of Appeal of the Supreme Court of New South Wales[7].

    [5]Burns v Corbett [2013] NSWADT 227.

    [6]Corbett v Burns [2014] NSWCATAP 42.

    [7]Burns v Corbett (No 2) [2016] NSWSC 612.

13. Mr Burns' complaint against Mr Gaynor has not yet been heard on the merits. Mr Gaynor succeeded in having the proceedings in NCAT dismissed on the basis that there had been no "public act" in New South Wales as required by s 49ZT of the AD Act[8].  While an appeal by Mr Burns to the Appeal Panel of NCAT was yet to be heard, some further interlocutory skirmishing between them resulted in the making of an order for costs against Mr Gaynor.  Mr Gaynor obtained a grant of leave to appeal to the Court of Appeal from that order[9].  By a summons filed in that appeal, Mr Gaynor sought a declaration that NCAT had no jurisdiction to determine matters pertaining to citizens resident in a State other than New South Wales, as well as an order in the nature of prohibition preventing steps from being taken by Mr Burns in NCAT or to enforce its orders[10].  

    [8]Burns v Gaynor [2015] NSWCATAD 211.

    [9]Gaynor v Burns [2016] NSWCA 44.

    [10]Burns v Corbett (2017) 343 ALR 690 at 694 [7].

14. The Court of Appeal (Bathurst CJ, Beazley P and Leeming JA) heard these various matters together in order to resolve the common issue of whether NCAT may hear and determine a dispute arising under the AD Act between a resident of New South Wales and a resident of another State[11]. In order to understand the decision of the Court of Appeal, it is necessary to note the material provisions of the Constitution and the Judiciary Act.

    [11]Burns v Corbett (2017) 343 ALR 690 at 693 [3].

    The Constitution

15. Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in this Court, in such other federal courts as the Parliament creates, and in such other courts as the Parliament invests with federal jurisdiction. To the extent that the courts of the States are invested with federal jurisdiction by the Parliament of the Commonwealth, those courts thereby become part of the federal Judicature established under Ch III of the Constitution[12].

    [12]Rizeq v Western Australia (2017) 91 ALJR 707 at 713 [12]; 344 ALR 421 at 425; [2017] HCA 23.

16. Section 75 establishes the original jurisdiction of this Court in relation to certain kinds of matters. It provides:

    "In all matters:

    (i)       arising under any treaty;

    (ii)affecting consuls or other representatives of other countries;

    (iii)in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

    (iv)between States, or between residents of different States, or between a State and a resident of another State;

    (v)in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

    the High Court shall have original jurisdiction."

17. Section 76 of the Constitution empowers the Commonwealth Parliament to confer additional original jurisdiction on this Court to determine other kinds of matters. Quick and Garran described the matters listed in s 76 as "matters of specially federal concern"[13]. Section 76 provides:

    "The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

    (i)arising under this Constitution, or involving its interpretation;

    (ii)arising under any laws made by the Parliament;

    (iii)of Admiralty and maritime jurisdiction;

    (iv)relating to the same subject-matter claimed under the laws of different States."

    [13]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 724.

18. In relation to the matters referred to in ss 75 and 76, s 77 of the Constitution empowers the Commonwealth Parliament to make laws establishing the extent of the jurisdiction of federal courts other than the High Court, and investing State courts with federal jurisdiction. Section 77 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."

19. Section 73 provides ("with such exceptions and subject to such regulations as the Parliament prescribes") for the appellate jurisdiction of this Court relevantly as:

    "to hear and determine appeals from all judgments, decrees, orders, and sentences … of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State … and the judgment of the High Court in all such cases shall be final and conclusive."

20. While Ch III does not mandate the establishment of a single federal judicial system, it does establish the federal "Judicature", which may exercise adjudicative authority with respect to the matters listed in ss 75 and 76 of the Constitution. The federal Judicature is not a uniform national court system, but it has aptly been described as an "integrated national court system"[14], at the head of which this Court exercises constitutionally guaranteed appellate jurisdiction.  In Re Wakim; Ex parte McNally, Gummow and Hayne JJ said[15]:

    "[W]hen it is said that there is an 'integrated' or 'unified' judicial system in Australia, what is meant is that all avenues of appeal lead ultimately to this Court and there is a single common law throughout the country.  This Court, as the final appellate court for the country, is the means by which that unity in the common law is ensured."

    [14]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 138; see also at 114‑115; [1996] HCA 24; Rizeq v Western Australia (2017) 91 ALJR 707 at 718 [49]; 344 ALR 421 at 431.

    [15](1999) 198 CLR 511 at 574 [110] (footnote omitted); [1999] HCA 27.

21. It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III[16], is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion"[17].  That function is the characteristic function of the courts[18], albeit that, under the constitutions of the States, adjudicative authority may be vested in organs other than those recognised as courts within Ch III of the Constitution[19].

    [16]See Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142; [1907] HCA 76.

    [17]Rizeq v Western Australia (2017) 91 ALJR 707 at 719 [52]; 344 ALR 421 at 432. See also Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12; South Australia v Totani (2010) 242 CLR 1 at 63 [131]; [2010] HCA 39.

    [18]Marbury v Madison 5 US 137 at 177 (1803); Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36; [1990] HCA 21.

    [19]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 67, 81‑82, 93, 101‑102, 109, 137; H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 561‑562 [13]‑[16]; [1998] HCA 54.

22. A State court invested with adjudicative authority in respect of matters listed in ss 75 and 76 of the Constitution pursuant to s 77 is so invested as a "component part" of the federal Judicature for which Ch III provides[20]. 

    [20]Le Mesurier v Connor (1929) 42 CLR 481 at 514; [1929] HCA 41; Rizeq v Western Australia (2017) 91 ALJR 707 at 717 [45]; 344 ALR 421 at 430.

23. It may be noted here with particular regard to s 77(ii) that several of the matters listed in ss 75 and 76 could not, on any view, be said to be within the adjudicative authority belonging to the courts of the States in the absence of a conferral of jurisdiction by the Commonwealth Parliament. Obvious examples are the matters referred to in s 75(iii) and (v). On the other hand, the most obvious example of a matter that, prior to Federation, would have been part of the jurisdiction that belonged to the courts of the States is a dispute between residents of the different Australian colonies.

    The Judiciary Act

24. Sections 38 and 39 of the Judiciary Act were enacted pursuant to s 77(ii) and (iii) of the Constitution. Section 38 provides, subject to presently immaterial exceptions, that the jurisdiction of the High Court in certain matters shall be exclusive of that of the courts of the States.

25. Section 39 of the Judiciary Act excludes the jurisdiction of the State courts where the High Court has original jurisdiction or where original jurisdiction can be conferred on it, and then invests the State courts with that jurisdiction subject to certain conditions and restrictions.

26. The effect of these provisions of the Judiciary Act is that the exercise by a State court of adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution, including matters between residents of different States, is an exercise of federal jurisdiction. As was explained[21] in Baxter v Commissioners of Taxation (NSW):

    "The result is that the jurisdiction of the State Courts is now derived from a new source, with all the incidents of jurisdiction derived from that new source, one of which is an appeal in all cases to the High Court."

    [21](1907) 4 CLR 1087 at 1137‑1138. See also PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at 21 [53]; [2015] HCA 36.

    The Court of Appeal

27. In the Court of Appeal it was accepted by all parties that even though, in hearing and determining Mr Burns' complaints, NCAT was exercising the judicial power of the State because it was able to render a binding, authoritative and curially enforceable judgment independently of the consent of the persons against whom his complaints had been brought, NCAT was not a "court of the State"[22].

    [22]Burns v Corbett (2017) 343 ALR 690 at 698 [29].

28. The Commonwealth's primary argument in the Court of Appeal was that there arises from Ch III of the Constitution an implied limitation on State legislative power that prevents a State law from conferring adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution on a State administrative body as opposed to one of the "courts of the States" referred to in s 77. The Commonwealth's alternative argument was that s 39 of the Judiciary Act is inconsistent with any State law conferring adjudicative authority in respect of a matter identified in s 75 or s 76 on a State tribunal other than a court; and that such a State law is inoperative to the extent it does so by virtue of s 109 of the Constitution[23]. 

    [23]Burns v Corbett (2017) 343 ALR 690 at 699‑700 [33].

29. The State of New South Wales ("NSW") argued that nothing in the Constitution prevents a State law from authorising a State tribunal that is not a court from exercising State judicial power in respect of a matter of the kind described in s 75(iv) of the Constitution[24]. As to the Judiciary Act, NSW argued that it is directed only to "courts" and not to "tribunals" other than courts, so that it does not operate inconsistently with the NCAT Act.

    [24]Burns v Corbett (2017) 343 ALR 690 at 700 [34].

30. Leeming JA, with whom Bathurst CJ and Beazley P agreed, held that no implication from the Constitution prevents State Parliaments from conferring jurisdiction on State tribunals in respect of matters falling within s 75(iv) of the Constitution, but that a State law purporting to have that effect would be inconsistent with s 39 of the Judiciary Act and, therefore, invalid to the extent of the inconsistency by virtue of s 109 of the Constitution.

31. As to the Implication Issue, Leeming JA concluded that the very conferral by s 77 on the Commonwealth Parliament of a choice as to whether, and the extent to which, adjudicative authority in respect of matters listed in ss 75 and 76 of the Constitution should be exercised by State courts is inconsistent with an implication that the Constitution itself denies power to a State to permit adjudication of a matter referred to in s 75(iv) by any organ of the State designated by the State legislature. In his Honour's view, to the extent that the legislative power conferred by s 77 is not exercised by the Commonwealth Parliament, then the provisions of Ch V of the Constitution, notably ss 106, 107 and 108, preserve the powers and laws of the States as they were before Federation[25], including the power to determine disputes between residents of different States. 

    [25]Burns v Corbett (2017) 343 ALR 690 at 705 [58]‑[59], 706 [64].

32. On the other hand, in his Honour's view, once the legislative power conferred by s 77 has been exercised, as it was by the enactment of ss 38 and 39 of the Judiciary Act, then s 109 of the Constitution ensures that any inconsistent State law is inoperative. That a matter falling within s 75(iv) might be determined otherwise than in accordance with s 39(2) would alter, impair or detract from the federal law so as to attract the operation of s 109 of the Constitution[26]. 

    [26]Burns v Corbett (2017) 343 ALR 690 at 709 [75]‑[77].

    The appeals to this Court

33. Mr Burns, NSW and the Attorney General for New South Wales each appealed by special leave to this Court.  The Attorneys‑General of the States of Queensland, Western Australia, Tasmania and Victoria intervened in the appeals, making submissions in support of NSW.

34. NSW and Mr Burns supported the conclusion of the Court of Appeal on the Implication Issue, arguing that the Constitution itself did not remove the "belongs to" jurisdiction of State courts recognised in s 77(ii) of the Constitution. NSW submitted that if, as is common ground, Federation did not remove the "belongs to" jurisdiction of State courts in respect of disputes between residents of different States, then a fortiori it did not remove the existing jurisdiction of State tribunals other than courts.

35. It was argued for NSW and the interveners that the terms of s 77(ii) and (iii), and the absence of any express provision in Ch III of the Constitution denying the possibility of the conferral by a State of adjudicative authority as it may see fit, are indicative of the survival, respectively, of pre‑Federation State judicial and legislative power in that regard. That indication was said to be supported by the consideration that the exercise of judicial power by tribunals other than courts was familiar at the time the Constitution was drafted.

36. The Commonwealth submitted, pursuant to a notice of contention, that it is not to be supposed that the scheme for the adjudication of matters listed in ss 75 and 76 of the Constitution by the federal Judicature established under Ch III might be subverted by a conferral by State law of adjudicative authority in respect of such matters on an administrative body of the State. It was said that s 77(ii) itself assumes that, if adjudicative authority is to be exercised by any State body in respect of any matter listed in s 75 or s 76, that body must be a State court. The Commonwealth submitted that the argument for NSW and the interveners would permit a State Parliament to confer judicial power on a State Minister in respect of matters listed in ss 75 and 76 without any right of appeal to a court of the State and subject only to review by the Supreme Court for jurisdictional error that might then come to this Court on appeal on that limited basis.

37. Ms Corbett and Mr Gaynor resisted the appeals on the same grounds as were advanced by the Commonwealth.  In addition, they sought special leave to cross‑appeal against an order of the Court of Appeal that there should be no order in their favour as to the costs of the proceedings before it.  This Court refused to grant special leave in this regard on the footing that the interests of justice did not warrant the grant of special leave.

    The Implication Issue

    Common ground

38. It is as well to begin consideration of the parties' submissions in relation to the Implication Issue by recalling what is not in dispute. First, it is common ground that the disputes between Mr Burns, and Ms Corbett and Mr Gaynor are matters between residents of different States, within the meaning of s 75(iv) of the Constitution.

39. Secondly, and most importantly, it is uncontroversial that NCAT is not a "court of a State" for the purposes of Ch III of the Constitution. It is, therefore, unnecessary to delve into the considerations that bear upon the question whether any given tribunal is to be recognised as a "court" for the purposes of Ch III of the Constitution[27].  In addition, the circumstance that it is common ground that NCAT is not relevantly a court means that the argument for NSW and the interveners did not seek to suggest that any material distinction could be drawn between a tribunal such as NCAT and other kinds of administrative decision‑maker, including those more closely associated with the executive government of a State.

    [27]Cf Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256‑260, 267‑271; [1995] HCA 10; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76‑77 [64]‑[66], 82‑83 [82]‑[85]; [2006] HCA 44.

40. The issue on which the parties are squarely divided is whether the provisions of Ch III deny the possibility that the authority to adjudicate any of the matters listed in ss 75 and 76 of the Constitution may be exercised by an organ of government which is not a court for the purposes of Ch III. Consideration of that issue must begin with a consideration of the negative implications of Ch III.

    The negative implications of Ch III

41. Chapter III of the Constitution, and in particular ss 71 and 77, adopted the "autochthonous expedient"[28] of allowing the Commonwealth Parliament to vest the adjudicative authority of the Commonwealth in the courts of the States in respect of the matters listed in ss 75 and 76 of the Constitution. Chapter III of the Constitution thus provides for the authoritative adjudication of these matters by a federal Judicature, a component part of which may be the courts of the States[29] depending on the choices made by the Commonwealth Parliament under s 77(ii) and (iii). Section 77(ii) recognises the possibility that, absent Commonwealth legislation excluding the adjudicative authority that otherwise belongs to the State courts, that authority may continue to be exercised by those courts.

    [28]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268; [1956] HCA 10.

    [29]Rizeq v Western Australia (2017) 91 ALJR 707 at 717 [45]; 344 ALR 421 at 430.

42. NSW and the interveners argued that Ch III of the Constitution does not mandate a uniform national judicature with respect to the matters listed in ss 75 and 76 of the Constitution; and that the extent to which the courts of the States are co‑opted into the federal Judicature depends on the choices made by the Commonwealth Parliament under s 77(ii) and (iii) of the Constitution. It was said, echoing the view of Leeming JA, that the very existence of those choices is fatal to the implication for which the Commonwealth contended.

43. But whatever choices may be made by the Commonwealth Parliament in this regard, adjudicative authority in respect of the matters listed in ss 75 and 76 of the Constitution may be exercised only as Ch III contemplates and not otherwise. Chapter III contemplates the exercise of adjudicative power only by this Court, by other federal courts created by the Commonwealth Parliament, by State courts invested with such power by the Commonwealth Parliament or by State courts to which such adjudicative authority belongs or in which it is invested. Accordingly, even if the Commonwealth Parliament had made no law under s 77(ii) or (iii), a State law purporting to authorise an agency of the government of a State other than a court to determine, for example, a dispute between residents of different States would be invalid because Ch III left no room for such an adjudication.

44. In the Boilermakers' Case, in one of the seminal passages in the judicial exposition of the Constitution, Dixon CJ, McTiernan, Fullagar and Kitto JJ said[30]:

    "If attention is confined to Chap III it would be difficult to believe that the careful provisions for the creation of a federal judicature as the institution of government to exercise judicial power and the precise specification of the content or subject matter of that power were compatible with the exercise by that institution of other powers. The absurdity is manifest of supposing that the legislative powers conferred by s 51 or elsewhere enabled the Parliament to confer original jurisdiction not covered by ss 75 and 76. It is even less possible to believe that for the Federal Commonwealth of Australia an appellate power could be created or conferred that fell outside s 73 aided possibly by s 77(ii) and (iii). As to the appellate power over State courts it has recently been said in this Court: 'On the face of the provisions they amount to an express statement of the Federal legislative and judicial powers affecting State courts which, with the addition of the ancillary power contained in s 51(xxxix), one would take to be exhaustive': Collins v Charles Marshall Pty Ltd[31].  To one instructed only by a reading of Chap III and an understanding of the reasons inspiring the careful limitations which exist upon the judicial authority exercisable in the Federal Commonwealth of Australia by the federal judicature brought into existence for the purpose, it must seem entirely incongruous if nevertheless there may be conferred or imposed upon the same judicature authorities or responsibilities of a description wholly unconnected with judicial power.  It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive.  What reason could there be in treating it as an exhaustive statement, not of the powers, but only of the judicial power that may be exercised by the judicature?"

    [30]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 272.

    [31](1955) 92 CLR 529 at 543; [1955] HCA 44.

45. The actual decision in the Boilermakers' Case confirmed that, notwithstanding the widely held understanding up to that time[32], there was no good answer to the rhetorical question with which this passage concludes. While that decision specifically denied the power of the Commonwealth Parliament to confer upon an agency of the government of the Commonwealth other than a court the authority to adjudicate that is characteristic of the courts, the approach to the interpretation of Ch III, whereby the statement of what may be done is taken to deny that it may be done otherwise, is also apt to deny the possibility that any matter referred to in s 75 or s 76 might be adjudicated by an organ of government, federal or State, other than a court referred to in Ch III. In short, Ch III recognises no other governmental institution as having the potential to exercise adjudicative authority over the matters listed in ss 75 and 76 of the Constitution.

    [32]See Wheeler, "The Boilermakers Case", in Lee and Winterton (eds), Australian Constitutional Landmarks, (2003) 160 at 163.

46. Indeed, the argument advanced by NSW and the interveners invites a response in the form of a rhetorical question similar to that asked by the majority in the Boilermakers' Case: what reason could there be in treating the arrangements made by Ch III for the adjudication of matters listed in ss 75 and 76 as an exhaustive statement only of the adjudicative authority that just happens to be exercised by the courts capable of comprising the federal Judicature referred to in Ch III? There is no good answer to this question. The terms, structure and purpose of Ch III leave no room for the possibility that adjudicative authority in respect of the matters in ss 75 and 76 might be exercised by, or conferred by any party to the federal compact upon, an organ of government, federal or State, other than a court referred to in Ch III of the Constitution.

47. Chapter III, in providing for the establishment of the federal Judicature, is not concerned solely with the conferral of the judicial power of the Commonwealth and the limits on the conferral of that power. In the working out of the ramifications of the negative implications in Ch III of the Constitution, it is not the case "that Ch III has nothing to say … concerning judicial power other than the judicial power of the Commonwealth."[33]  In MZXOT v Minister for Immigration and Citizenship, Gleeson CJ, Gummow and Hayne JJ adverted[34] to the effect of covering cl 5 of the Constitution, which renders the Constitution (set out in s 9 of the Commonwealth of Australia Constitution Act 1900 (Imp)[35]) "binding on the courts, judges, and people of every State … notwithstanding anything in the laws of any State", and observed that that which is binding "is the federal scheme manifested in the text and structure of the Constitution." It was noted that the federal scheme includes Ch III and the "various inferences which have been held to follow necessarily from that federal scheme."[36] Their Honours concluded their discussion with the observation that "a State legislature may not expand or contract the scope of the appellate jurisdiction of the Court conferred by s 73; or that of the original jurisdiction conferred by s 75[37]."[38]

    [33]Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 543 [15]. See also Fencott v Muller (1983) 152 CLR 570 at 607; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 139‑143; Gould v Brown (1998) 193 CLR 346 at 444 [186]; [1998] HCA 6; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 571‑572 [66]; [2010] HCA 1.

    [34](2008) 233 CLR 601 at 617‑618 [19]‑[20]; [2008] HCA 28.

    [35]63 & 64 Vict, c 12.

    [36](2008) 233 CLR 601 at 618 [20].

    [37]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 405 [227]; [2005] HCA 44.

    [38](2008) 233 CLR 601 at 618 [20].

48. The inevitability of the effect of Ch III upon State judicial power was touched on by Dixon CJ, McTiernan, Fullagar and Kitto JJ in the Boilermakers' Case itself, where their Honours said[39], in a passage that warrants quotation at some length:

    "In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme.  A federal constitution must be rigid.  The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them.  The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature.  The demarcation of the powers of the judicature, the constitution of the courts of which it consists and the maintenance of its distinct functions become therefore a consideration of equal importance to the States and the Commonwealth.  While the constitutional sphere of the judicature of the States must be secured from encroachment, it cannot be left to the judicial power of the States to determine either the ambit of federal power or the extent of the residuary power of the States.  The powers of the federal judicature must therefore be at once paramount and limited.  The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained.  These very general considerations explain the provisions of Chap III of the Constitution".

    [39](1956) 94 CLR 254 at 267‑268.

49. Under the demarcation of the powers of the components of the federal Judicature contemplated by Ch III, adjudicative authority in respect of matters listed in ss 75 and 76 is to be exercised only by "courts", an appeal from which to this Court is guaranteed by s 73 of the Constitution. In this way, the exercise of adjudicative authority in respect of matters listed in ss 75 and 76 in accordance with Ch III, and not otherwise, ensures that adjudication in respect of all such matters occurs consistently and coherently throughout the federation[40].

    [40]See Fencott v Muller (1983) 152 CLR 570 at 607; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 114‑115, 138‑143.

50. Even though the existence of State courts depends on State law, and they remain State courts when co‑opted into the federal Judicature[41], so that the Commonwealth Parliament must take such courts as it finds them[42], the only organs of government of the States that s 77 allows to be co‑opted into the federal Judicature are those which are courts[43]. Just as Ch III leaves no room for the Commonwealth Parliament to choose to co‑opt an agency of the executive government of a State into the federal Judicature, it leaves no room for a State law to foist on the parties to a matter falling within one of the nine categories listed in ss 75 and 76 a determination by an agency of the executive government of the State. While the autochthonous expedient "left to the Commonwealth Parliament the selection of the courts in which federal jurisdiction should be invested"[44], the Parliament of a State could not pre‑empt any selection the Commonwealth Parliament might make by vesting adjudicative authority over a s 75 or s 76 matter in an agency of its executive government.

    [41]R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452; [1916] HCA 58; Le Mesurier v Connor (1929) 42 CLR 481 at 495‑496.

    [42]Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313; [1912] HCA 42; Kotsis v Kotsis (1970) 122 CLR 69 at 109; [1970] HCA 61; Russell v Russell (1976) 134 CLR 495 at 516‑517, 530, 535, 554; [1976] HCA 23.

    [43]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 75 [61].

    [44]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 67.

51. Whether a State may sidestep its own courts as components of the federal Judicature by investing an agency of its executive government with the adjudicative authority characteristic of the courts in respect of the matters listed in ss 75 and 76 is a question that has not been squarely determined by this Court. That may not be surprising, given that it has never been suggested that such adjudication is not exclusively a matter for the courts identified in Ch III as potential components of the federal Judicature. However that may be, there are observations in the authorities which support the rejection of the argument now advanced by NSW and the interveners.

52. In The Commonwealth v Queensland[45], Gibbs J, with whom Barwick CJ, Stephen and Mason JJ agreed, observed that it is implicit in Ch III that it is not permissible for a State law to detract from this Court's functions under Ch III. The case was directly concerned with the question whether a State Parliament had power to confer upon the Judicial Committee of the Privy Council adjudicative authority in respect of matters dealt with in s 74 of the Constitution. Gibbs J said[46]:

    "Legislation passed by a State which had that effect would violate the principles that underlie Ch III – that questions arising as to the limits of Commonwealth and State powers, having a peculiarly Australian character, and being of fundamental concern to the Australian people, should be decided finally in this Court …  In other words, such legislation would be contrary to the inhibitions which, if not express, are clearly implicit in Ch III."

    [45](1975) 134 CLR 298 at 314‑315; see also at 327‑328 per Jacobs J, with whom McTiernan J agreed; [1975] HCA 43.

    [46](1975) 134 CLR 298 at 315.

53. Thus, a State law could not deny an appeal to this Court from a decision of a State court in respect of a matter of the kinds listed in ss 75 and 76 of the Constitution. It would be surprising if a State law could achieve indirectly what it could not achieve directly by the expedient of vesting adjudicative authority in organs of the State other than its courts. Further in this regard, it is not to the point to say that an adjudication by an agency other than a court may be amenable under State law to judicial review by the Supreme Court of the State[47], and that the result of such a review might then find its way to this Court. The constitutional guarantee of an appeal contained in s 73 is (save for exceptions and regulations prescribed by the Commonwealth Parliament) peremptory in its operation; it is not dependent on the operation of State law[48].

    [47]Cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573‑575 [71]‑[77].

    [48]Wall v The King; Ex parte King Won and Wah On [No 1] (1927) 39 CLR 245 at 262; [1927] HCA 4.

54. In K‑Generation Pty Ltd v Liquor Licensing Court, Gummow, Hayne, Heydon, Crennan and Kiefel JJ said[49]:

    "There is no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a 'court of a State' and that in respect of a body that is a 'court of a State', they may confer non‑judicial powers. However, consistently with Ch III, the States may not establish a 'court of a State' within the constitutional description and deprive it, whether when established or subsequently, of those minimum characteristics of the institutional independence and impartiality identified in the decisions of this Court."

    [49](2009) 237 CLR 501 at 544 [153]; [2009] HCA 4.

55. It may fairly be said to be a fortiori these observations that a State may not, consistently with Ch III, confer on an executive agency of the State adjudicative authority in respect of any matter listed in s 75 or s 76 of the Constitution.

    Considerations of historical context and purpose

56. The argument advanced by NSW and the interveners fails to recognise the historical context, and the associated purpose, of Ch III.  Article III, §2 of the Constitution of the United States extended the judicial power of the United States, vested by Art III, §1 in the Supreme Court and the federal courts "ordain[ed]" and "establish[ed]" by Congress, to "Controversies … between Citizens of different States", because of a concern that "some state courts, in applying state law, might betray bias against nonresidents"[50]. In contrast, and notwithstanding the infamous colonial jealousies between the executive governments of the Australian colonies, our founders had sufficient faith in the integrity of the Australian courts that they were content to adopt the "autochthonous expedient of conferring federal jurisdiction on State courts" by federal legislation made pursuant to s 77(iii), rather than follow the lead of the United States[51].  Importantly in this regard, there is not the faintest suggestion in any historical materials that our founders entertained, even for a moment, the possibility that disputes as to the rights, duties and liabilities of residents of different States[52] might be authoritatively adjudicated by institutions of government of the States other than their courts.  It may be noted in this regard that cl 7 of Ch III of the Draft Bill of 1891, which "substantially contained"[53] the terms of s 77(ii), provided that original federal jurisdiction "may be exclusive, or may be concurrent with that of the Courts of the States."[54] Insofar as the legislative history is useful to an understanding of s 77(ii) as ultimately adopted, the reference to the "Courts of the States" is instructive, as is the apparent assumption that those "Courts" would be of the same institutional character as federal courts exercising federal jurisdiction.

    [50]Amar, America's Constitution:  A Biography, (2005) at 228.  See also Bank of the United States v Deveaux 9 US 61 at 87 (1809); Friendly, "The Historic Basis of Diversity Jurisdiction", (1928) 41 Harvard Law Review 483; Cowen, "Diversity Jurisdiction:  The Australian Experience", (1955‑1957) 7 Res Judicatae 1 at 2-3.

    [51]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 725, 804; Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 330, 339; [1922] HCA 50; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268.

    [52]Cf Cowen, "Diversity Jurisdiction:  The Australian Experience", (1955‑1957) 7 Res Judicatae 1.

    [53]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 801.

    [54]As extracted in Williams, The Australian Constitution:  A Documentary History, (2005) at 307.

    Belonging to the "courts of the States"

57. An aspect of the argument advanced by NSW in relation to s 77(ii) of the Constitution that deserves particular attention is the contention that at least some of the matters listed in ss 75 and 76 of the Constitution involve jurisdiction which "belonged to" the courts of the States and which was not removed by Federation. On that footing, it was said that, absent a provision such as s 39 of the Judiciary Act, such a matter could be decided in State jurisdiction by a State court. It was then said that, if Federation did not remove the "belongs to" jurisdiction of State courts, then a fortiori it did not remove the existing jurisdiction of State administrative bodies.  Three points may be made in respect of this aspect of the argument. 

58. The first point is that the argument by NSW fails to attend to the negative effect of the express provisions of Ch III of the Constitution. The suggestion that the exercise of adjudicative authority by agencies of the government of a State other than its courts is unaffected by the negative implications of Ch III must be rejected for the reasons derived from this Court's jurisprudence in relation to Ch III, which is discussed above. One should not be distracted from the consideration that Ch III deals comprehensively with arrangements for the adjudication of all matters listed in ss 75 and 76 by the circumstance that the present appeals concern only matters within s 75(iv). The express provision for the exercise of adjudicative authority through courts capable of inclusion as components of the federal Judicature identified by ss 71 and 77 leaves no room for the possibility of an adjudication of any of the matters listed in ss 75 and 76 by an organ of the government which is not a court of a State that may become a component of the federal Judicature.

59. The second point to be made here is that the use of the expression "jurisdiction … which belongs to … the courts of the States" in s 77(ii) is itself a positive indication that, within the scheme of Ch III, the adjudicative authority finally to determine disputes as to the rights, duties and liabilities of parties to a matter of the kinds listed in s 75 or s 76 is the exclusive province of the courts there referred to. Section 77(ii) cannot be read as if it referred to the "jurisdiction that belongs to the courts of the States in contradistinction to the jurisdiction conferred by a State on a tribunal other than a court." The expression "jurisdiction … which belongs to … the courts of the States" in s 77(ii) refers to "courts", and necessarily excludes agencies of the executive government of the States from the scope of s 77(ii).

60. In MZXOT v Minister for Immigration and Citizenship, Gleeson CJ, Gummow and Hayne JJ, speaking of s 77(ii), said[55]:

    "That which 'belongs to' the State courts within the meaning of s 77(ii) is the authority they possess to adjudicate under the constitutions and laws of the States[56]."

    [55](2008) 233 CLR 601 at 619 [23].

    [56]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142.

61. The authority to adjudicate which "belongs to" State courts under their constitutions and laws is adjudicative authority that was characteristically exercised by courts.  As was said[57] by Knox CJ, Rich and Dixon JJ in Le Mesurier v Connor, "the Courts of a State are the judicial organs" of the State government. It may be noted that s 77(ii), in speaking of "jurisdiction … which belongs to or is invested in the courts of the States", substantially repeats language contained in s 4 of the Supreme Court Ordinance 1861 (WA)[58], which served to establish "a Court of Judicature" in the colony of Western Australia.  This provision invested in the Supreme Court of Western Australia all the powers and adjudicative authority "which belong[ed] to … the Courts of Queen's Bench, Common Pleas, and Exchequer at Westminster"[59]. It is tolerably clear that s 77(ii), in speaking of the jurisdiction that is "invested" in the courts of the States, is speaking of authority to adjudicate that has actually been invested in State courts by State or Imperial laws and not jurisdiction invested by the Commonwealth Parliament: that is because the investiture of jurisdiction by laws of the Commonwealth is expressly dealt with by s 77(iii). But however that may be, the point remains that adjudicative authority required by Ch III to be brought to bear in the determination of matters listed in ss 75 and 76 is that authority which is characteristically exercised by courts and, consistently with that character, is exercisable only by courts capable of inclusion in the federal Judicature.

    [57](1929) 42 CLR 481 at 495.

    [58]24 Vict No 15.

    [59]See also Puisne Judge Act 1825 (NSW) (6 Geo IV No 16).

62. The third point to be made here relates to the argument for NSW that the absence from s 77 of any reference to administrative tribunals of the States was a deliberate omission to preserve State legislative power in relation to the conferral of adjudicative authority upon such tribunals. This argument included the suggestion that the founders were familiar with the adjudicative authority of the States being exercised by administrative tribunals prior to Federation. In this regard, particular attention was given to Wilson v Minister for Lands[60] as an example of a State tribunal other than a court exercising judicial power prior to Federation.  That case came before the Full Court of the Supreme Court and subsequently the Privy Council on appeal from the Land Appeal Court as a court of appeal from a Local Land Board.  In delivering the advice of the Privy Council, Lord Macnaghten observed that the Land Board was a "lay tribunal"[61].  It is, however, also to be noted that, both in the Full Court and in the Privy Council, the Local Land Board was referred to as a court[62].  It is apparent that the judges before whom the case came were not at all concerned with whether the Local Land Board was to be regarded as an arm of the executive government distinct from the judiciary.  Just as later commentators spoke of "tribunals" when clearly referring to courts within the meaning of Ch III[63], the case was not concerned to observe the distinction which has come to be regarded as vital to our understanding of the separation of powers under our Constitution. Accordingly, Wilson's Case does not support the proposition that the founders can be taken to have deliberately omitted administrative tribunals from the negative implications of Ch III of the Constitution. The same insouciance as to the distinction, which since the Boilermakers' Case has assumed crucial importance[64], between an administrative tribunal and a court is apparent in other pre‑Federation decisions[65]. 

    [60](1899) 20 LR (NSW) (L) 104, reversed on appeal:  Minister for Lands v Wilson [1901] AC 315.

    [61][1901] AC 315 at 323.

    [62](1899) 20 LR (NSW) (L) 104 at 110; [1901] AC 315 at 322.

    [63]Cowen, "Diversity Jurisdiction:  The Australian Experience", (1955‑1957) 7 Res Judicatae 1 at 3, 7.

    [64]Cf Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45.

    [65]Ex parte Dalton (1876) 14 SCR (NSW) (L) 277 at 281; Burrey v Marine Board of Queensland (1892) 4 QLJ 151 at 152‑153.

63. In any event, the existence of State administrative bodies exercising judicial power at the time of Federation cannot be decisive of the true operation of Ch III.  As noted earlier, until this Court's decision in the Boilermakers' Case, it was commonly, but erroneously, understood that an administrative body, such as the Inter‑State Commission or the Commonwealth Court of Conciliation and Arbitration, was capable of exercising the judicial power of the Commonwealth.  The decision in the Boilermakers' Case established that the adjudicative authority of the Commonwealth was exercisable only by the courts of the federal Judicature; that being so, it became of vital importance to observe the difference between such courts and administrative tribunals for the purposes of Ch III[66].  True it is that neither the decision nor the reasoning in the Boilermakers' Case suggested that a State Parliament was precluded generally from conferring the adjudicative authority of a State on an organ of the State other than its courts. Within the scope of the general legislative authority of a State there can be no doubt that s 107 of the Constitution preserved the power of State Parliaments in that regard. But the question is whether Ch III withdrew from State Parliaments the power to confer adjudicative authority in respect of the matters listed in ss 75 and 76 upon agencies of the State other than its courts. That question cannot be answered in the negative by denying the now well‑established distinction between courts and administrative tribunals in relation to the federal Judicature, or by asserting that s 77(ii) of the Constitution is to be understood as if, in referring to the courts of a State, it is also referring to agencies of the executive government or other agencies that are not recognisable as courts as that term is used in Ch III of the Constitution.

    [66]See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45.

    Conclusion

64. Sections 28(2)(a) and (c), 29(1) and 32 of the NCAT Act are invalid to the extent that they purport to confer jurisdiction upon NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. Pursuant to s 31 of the Interpretation Act 1987 (NSW) they may be read down to avoid that conclusion so that they do not confer jurisdiction upon NCAT where the complainant and the respondent to the complaint are "residents of different States" within the meaning of s 75(iv) of the Constitution.

    Orders

65. The appeals to this Court should be dismissed.

66. In Matter Nos S183 and S185 of 2017, the appellant should pay the first respondent's costs.  In Matter Nos S186, S187 and S188 of 2017, the appellant should pay the second respondent's costs.

    GAGELER J.

    The question of constitutional principle and its answer

67. The High Court has in the past made plain that, except with respect to the subject matters identified in ss 75 and 76 of the Constitution, a State Parliament can confer State judicial power on a State tribunal that is not a court of that State[67].  The ultimate question now for determination is whether the exception is warranted.

    [67]K-Generation Pty Ltd v Liquor LicensingCourt (2009) 237 CLR 501 at 544 [153]; [2009] HCA 4.

68. My opinion is that the exception is warranted as a structural implication from Ch III of the Constitution. The implication is needed because State legislative power to confer State judicial power on a State tribunal that is not a court of a State must be denied in order to ensure the effective exercise of the legislative powers conferred on the Commonwealth Parliament by s 77(ii) and (iii) to produce by legislation the constitutionally permissible result that an exercise of judicial power with respect to a subject matter identified in s 75 or s 76 occur only under the authority of Commonwealth law, in a forum which meets the minimum characteristics of a Ch III court, so as to give rise to a judgment or order that is appealable directly to the High Court subject only to such exceptions or regulations as the Commonwealth Parliament may prescribe under s 73(ii).

69. In the result, I agree with the conclusion and substantially with the reasoning of Kiefel CJ, Bell and Keane JJ on the Implication Issue. I think it appropriate to set out my own process of reasoning to that conclusion. That is in part because my own process of reasoning involves me first addressing the Inconsistency Issue. It is in part because I feel compelled to confront, and to explain why I reject, the premise of a discrete historical argument made by New South Wales and State interveners against the constitutional implication.

    Section 77 and its limits

70. Understanding the scope and operation of s 77 and its interaction with s 73(ii) of the Constitution is impossible without first understanding some of the technical terms employed in the drafting of those provisions. The first is "matter", which encompasses a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated[68].  The second is "jurisdiction", which encompasses authority to adjudicate such a controversy through the exercise of judicial power[69].  The third is "court", which refers to an institution[70] which (whatever other characteristics it might need to possess) must be capable of exercising judicial power and must meet critical minimum characteristics of independence and impartiality[71]. 

    [68]Inre Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; [1921] HCA 20; Fencott v Muller (1983) 152 CLR 570 at 603; [1983] HCA 12; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 351 [27], 352 [30]; [2016] HCA 2.

    [69]Rizeq v Western Australia (2017) 91 ALJR 707 at 718 [50]; 344 ALR 421 at 432; [2017] HCA 23, quoting Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142; [1907] HCA 76.

    [70]The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 58; [1982] HCA 13.

    [71]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [29]; [2004] HCA 31; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 81 [78]; [2006] HCA 44; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 106 [181]-[183]; [2013] HCA 7.

71. Remaining aspects of the terminology employed in the drafting of ss 73 and 77 which need to be understood are the compound references respectively to "federal jurisdiction" and to jurisdiction which "belongs to ... the courts of the States". Both allude to the source of the authority of a court to adjudicate. Federal jurisdiction is authority to adjudicate that is derived from the Constitution or a Commonwealth law. Federal jurisdiction is limited to authority to adjudicate a matter identified in s 75 or s 76. Jurisdiction which belongs to the courts of the States, equating to "State jurisdiction", is the authority of State courts to adjudicate that is derived from State Constitutions or State laws[72].  State jurisdiction is not limited to authority to adjudicate a "matter"[73], let alone a matter identified in s 75 or s 76, although it encompasses authority to adjudicate at least some of those matters.

    [72]Rizeq v Western Australia (2017) 91 ALJR 707 at 718 [50]-[51]; 344 ALR 421 at 432.

    [73]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 136-137; [1996] HCA 24. Cf Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273 at 277-279; [1967] HCA 18.

72. State jurisdiction cannot simply be equated with the jurisdiction which belonged to the courts of the colonies which on federation became States. On federation, everything adjusted. State courts which had until then been colonial courts retained the same jurisdiction with which they had previously been invested under colonial Constitutions and colonial laws with respect to controversies between residents of the geographical areas of the bodies politic which had been colonies and which became States. But what had been colonial jurisdiction was transmogrified into State jurisdiction. The colonial jurisdiction those courts had previously had with respect to controversies between residents of different colonies became State jurisdiction with respect to matters between residents of different States, a class of matters also within the original and concurrent jurisdiction of the High Court under s 75(iv) of the Constitution. The same State courts, within the limits of the subject-matter, geographical and personal jurisdiction they had previously had as colonial courts, immediately acquired new State jurisdiction in respect of classes of matters which had not previously existed. Those new classes of matters included matters within the description in s 76(i) of the Constitution of matters arising under the Constitution as well as those within the description in s 76(ii) of the Constitution of matters arising under Commonwealth laws. To what extent State courts acquired State jurisdiction with respect to matters within the remaining classes and subclasses of matters identified in ss 75 and 76 of the Constitution need not now be explored[74].  Complexities attributable to the continuation of Imperial laws conferring jurisdiction on State courts can also be put to one side[75].

    [74]Cf MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 617-621 [16]-[31]; [2008] HCA 28.

    [75]Cf McIlwraith McEacharn Ltd v Shell Co of Australia Ltd (1945) 70 CLR 175 at 210; [1945] HCA 11; China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 204, 228-230, 243-244; [1979] HCA 57.

73. The important point for present purposes is that, whatever State jurisdiction State courts had on and from federation with respect to the matters identified in ss 75 and 76 of the Constitution, the State jurisdiction of State courts became subject to displacement by a law enacted by the Commonwealth Parliament under s 77(ii) or (iii) of the Constitution. Each of those powers is quite confined in its operation.

74. The words "[w]ith respect to" at the commencement of s 77 are words which identify the subject matter to which the specific powers conferred on the Commonwealth Parliament by s 77(i), (ii) and (iii) are directed. Those sub-sections confer powers to "defin[e]" or "invest[]" jurisdiction "[w]ith respect to" any of the matters identified in ss 75 and 76. The words "[w]ith respect to" do not expand the scope of those powers beyond identifying the subject matter to which they are directed[76]. 

    [76]See Abebe v The Commonwealth (1999) 197 CLR 510 at 525-527 [27]-[29]; [1999] HCA 14. Cf Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 574 [110]; [1999] HCA 27.

75. The power conferred by s 77(ii) is an express power to "make laws ... defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to ... the courts of the States" "[w]ith respect to any of the matters mentioned" in ss 75 and 76. Neither in the judgment under appeal nor in the arguments of the parties and interveners was the suggestion made that s 77(ii) could be read to mean anything other than what the provision says.

76. Although it would provide an attractively simple way of cutting through a knotty constitutional problem, I am unable to read s 77(ii) as if the words "the courts of" did not appear, or as if the words "the courts of the States" encompassed bodies that do not meet the description of a "court of a State" within s 77(iii). In that respect, I am unable to find anything to support either of those non-textual readings of s 77(ii) in case law or commentary on the implied congressional power of exclusion of State court jurisdiction under the United States Constitution, which informed the drafting of s 77(ii). The "general principle" of United States constitutional law is that "where jurisdiction may be conferred on the United States courts, it may be made exclusive where not so by the Constitution itself; but, if exclusive jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it"[77]. That was at federation (and remains) the articulated extent of the principle which formed the background to the drafting of s 77(ii), nothing more[78].

    [77]Claflin v Houseman 93 US 130 at 136 (1876).

    [78]See generally Fallon et al, Hart and Wechsler's The Federal Courts and the Federal System, 7th ed (2015) at 412-460 ("Federal Authority and State Court Jurisdiction"); Kent and Lacy, Commentaries on American Law, rev ed (1889), vol 1 at 318-321, 395-404.

77. Nor can I see that it is possible to treat s 77(ii) as extending by implication to permit the Commonwealth Parliament to exclude the adjudicatory authority of State tribunals that are not State courts. No doubt, "consistency with the principles upon which constitutional provisions are interpreted and applied demands that" the power conferred by s 77(ii) "should be given as full and flexible an operation as will cover the objects it was designed to effect"[79]. But the affirmative terms in which the power is conferred have express limitations. Those limitations cannot be glossed by drawing an implication. The power is confined in its terms to a power to exclude the adjudicatory authority of State courts which is derived, relevantly, from State Constitutions or State laws. The power permits the exclusion of that adjudicatory authority of State courts: (1) only with respect to matters identified in ss 75 and 76; and (2) only to the extent that, with respect to those matters, the High Court has original jurisdiction under s 75 or has original jurisdiction conferred on it under s 76[80] or has appellate jurisdiction under s 73[81], or a federal court other than the High Court is invested with federal jurisdiction under s 77(i).

    [79]Bank of NSW v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 349; [1948] HCA 7.

    [80]See Quick and Groom, The Judicial Power of the Commonwealth, (1904) at 163; Booth v Shelmerdine Bros Pty Ltd [1924] VLR 276 at 282.

    [81]Flint v Webb (1907) 4 CLR 1178 at 1186-1187; [1907] HCA 77.

78. The power conferred by s 77(iii) is limited to a power to invest federal jurisdiction in one or more State courts. That is to say[82]:

    "The power conferred by s 77(iii) is expressed in terms which confine it to making laws investing State Courts with Federal jurisdiction. Like all other grants of legislative power this carries with it whatever is necessary to give effect to the power itself. But the power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth."

    [82]Le Mesurier v Connor (1929) 42 CLR 481 at 496; [1929] HCA 41. See also Russell v Russell (1976) 134 CLR 495 at 516-517; [1976] HCA 23.

79. Particularly in light of the limited scope of the express power conferred by s 77(ii), I cannot see that it is possible to treat s 77(iii) as extending by implication to permit the Commonwealth Parliament to exclude the adjudicatory authority of non-court State tribunals. The existence of such an implied power of exclusion finds no support in the analysis underlying the now settled view[83] that a matter answering the description of a matter within s 75 or s 76 which is not excluded from a State court's State jurisdiction under s 77(ii) by s 38 or s 39(1) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") is nevertheless excluded as a consequence of the State court's investiture with federal jurisdiction under s 77(iii) by s 39(2) of the Judiciary Act. That exclusion is effected by s 109 of the Constitution, the relevant operation of which I now turn to explain.

    [83]PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at 21 [53]; [2015] HCA 36.

    Section 109 and its limits

80. By operation of s 109 of the Constitution, a State law which confers State jurisdiction on a State court is rendered invalid, in the sense of "suspended, inoperative and ineffective"[84], if and to the extent that the State law would otherwise operate to confer that State jurisdiction on that State court with respect to a matter with respect to which federal jurisdiction is either: (1) conferred on the High Court or a federal court and excluded from State jurisdiction by force of Commonwealth law enacted under s 77(ii); or (2) invested in a State court to the exclusion of State jurisdiction by force of Commonwealth law enacted under s 77(iii). In the case of Commonwealth law enacted under s 77(ii), the inconsistency within the meaning of s 109 lies in the Commonwealth law withdrawing an authority to adjudicate which the State law confers. In the case of Commonwealth law enacted under s 77(iii), the nature of the inconsistency within the meaning of s 109 requires a little more elaboration.

    [84]Western Australia v The Commonwealth (1995) 183 CLR 373 at 464; [1995] HCA 47, quoting Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 286; [1961] HCA 32.

81. To the extent that a Commonwealth law enacted under s 77(iii) results in a State law which confers State jurisdiction on a State court being rendered inoperative by operation of s 109 of the Constitution, the Commonwealth law produces that result in consequence of investing federal jurisdiction in the State court with respect to a matter or matters identified in ss 75 and 76 of the Constitution. The inconsistency within the meaning of s 109 does not lie simply in the State court being subjected to simultaneous Commonwealth and State commands to adjudicate the same controversy; the State court by determining the controversy would be able to fulfil both commands. The inconsistency lies rather in the disparity of the legal incidents of the dual sources of authority to adjudicate[85].  Quite apart from such conditions as the Commonwealth Parliament might validly attach to its investiture of federal jurisdiction in the State court[86], and quite apart from the source of the powers of a State court exercising federal jurisdiction being different from the source of the powers of a State court exercising State jurisdiction[87], a judgment or order made by the State court in the exercise of federal jurisdiction with respect to a matter identified in s 75 or s 76 is appealable directly to the High Court under s 73(ii) of the Constitution whereas the judgment or order of the State court in the exercise of equivalent State jurisdiction with respect to the same matter is not so appealable unless the State court is the Supreme Court of that State. For the Commonwealth law investing federal jurisdiction within that constitutional setting to have unimpeded operation, the federal jurisdiction it invests in the State court must become that court's sole operative source of jurisdiction with respect to the matter or matters concerned.

    [85]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1137-1138; Ffrost v Stevenson (1937) 58 CLR 528 at 573; [1937] HCA 41; Minister for Army v Parbury Henty & Co (1945) 70 CLR 459 at 483; [1945] HCA 52; Felton v Mulligan (1971) 124 CLR 367 at 412-413; [1971] HCA 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 471, 479; [1980] HCA 32.

    [86]Eg s 39(2)(a) of the Judiciary Act, considered in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393; [1926] HCA 8, and s 39(2)(d) of the Judiciary Act, considered in Troy v Wrigglesworth (1919) 26 CLR 305; [1919] HCA 31.

    [87]Rizeq v Western Australia (2017) 91 ALJR 707 at 720-721 [59]-[63], 726-727 [91]; 344 ALR 421 at 434-435, 443.

82. The crux of the carefully reasoned judgment under appeal is the view that s 109 of the Constitution can also operate with respect to a Commonwealth law enacted under s 77(iii) to render inoperative a State law conferring State judicial power on a State tribunal that is not a court of that State on the basis that the State law "would alter, impair or detract from the conditional and universal operation of federal law"[88]. On the understanding that the Civil and Administrative Tribunal of New South Wales ("NCAT") is not a State court, it was held in the judgment under appeal that s 109 operated in that way on s 39(2) of the Judiciary Act to render inoperative provisions of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") which confer State judicial power on NCAT to the extent that the State jurisdiction so conferred extends to a matter between residents of different States within s 75(iv) of the Constitution.

    [88]Burns v Corbett (2017) 343 ALR 690 at 709 [78].

83. The critical passage in the reasoning supporting that holding in the judgment under appeal was as follows[89]:

    "[T]he essence of s 39(2) is to invest federal jurisdiction conditionally ... and to do so universally, in all matters falling within ss 75 and 76. To the extent that matters falling within s 75 or s 76 are determined by the exercise of judicial power which is not qualified in the way achieved by s 39(2), that alters, impairs or detracts from the federal law."

    [89]Burns v Corbett (2017) 343 ALR 690 at 709 [75] (emphasis in original).

84. Respectfully, I disagree. If I were to assume that there is State legislative capacity to confer State jurisdiction on a State tribunal that is not a State court in a matter falling within s 75 or s 76, I would be unable to accept that s 109 of the Constitution would operate on a Commonwealth law enacted under s 77(iii) so as to invalidate a State law enacted in the exercise of that legislative capacity. I proceed to explain why.

85. The principle by reference to which inconsistency within the meaning of s 109 of the Constitution is discerned, although familiar, is usefully restated[90]:

    "Substantially, it amounts to this.  When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.  Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent."

    [90]Victoria v The Commonwealth (1937) 58 CLR 618 at 630; [1937] HCA 82. See to similar effect Ex parte McLean (1930) 43 CLR 472 at 483; [1930] HCA 12; Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136-137; [1932] HCA 40.

86. There is, of course, no need for a State law to impinge upon the field of legal operation of the Commonwealth law in order for the State law to impair or detract from the operation of the Commonwealth law.  Impairment or detraction can result from the practical effect of the State law[91]. It follows that a State law can impair or detract from a Commonwealth law's conferral of jurisdiction under s 76 or s 77(i) or (iii) "by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction"[92].

    [91]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 398-401 [196]-[209]; [2005] HCA 44.

    [92]P v P (1994) 181 CLR 583 at 603; [1994] HCA 20.

87. However, I am unable to see how a State law can impair or detract from the operation of a Commonwealth law by reason of the State law impairing or detracting from the conditional and universal operation of that Commonwealth law except to the extent that the State law has a legal operation or practical effect within the universe of the conditional legal operation of the Commonwealth law[93].  To say that a State law impairs or detracts from the conditional and universal operation of a Commonwealth law, so it seems to me, is necessarily to say that the Commonwealth law is properly construed as a complete or exhaustive or exclusive statement of the law governing a subject matter lying within the limits of Commonwealth legislative power[94].  It is to say, using the common metaphor, that the Commonwealth law "covers the field"[95]. 

    [93]Cf The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 454 [9], 463 [38], 467-468 [56]-[59]; [2013] HCA 55.

    [94]Cf Ex parte McLean (1930) 43 CLR 472 at 483.

    [95]See Momcilovic v The Queen (2011) 245 CLR 1 at 116-119 [262]-[265]; [2011] HCA 34; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [40]; [2011] HCA 33.

235. In New South Wales, the Local Land Boards established pursuant to the Crown Lands Act 1884 (NSW)[283] sat and gave their decisions in open court with the power to compel the attendance of witnesses.  As Leeming JA observed in the Court of Appeal in these appeals[284], Darley CJ had remarked in 1899 that the Boards were constituted by "men ... without any legal training or any possible knowledge of an abstruse equitable doctrine"[285].  Section 18 of the Crown Lands Act also gave the Minister the power to hear appeals.

     [283]48 Vict No 18, ss 11, 14.

     [284]Burns v Corbett (2017) 343 ALR 690 at 705 [59].

     [285]Wilson v Minister for Lands (1899) 20 LR (NSW) (L) 104 at 109.

236. Although Darley CJ had doubted "whether the Legislature could really have intended to impose upon a lay tribunal such as a Land Board the duty of determining questions of so great nicety and difficulty", in the Privy Council Lord Macnaghten said that it was enough to say that the language of the Act was "perfectly clear, and that both the inquiries referred to the Land Board by the Minister for Lands [were] within the express words of the section"[286].

     (d)      Other State Commissioners and Boards

     [286]Minister for Lands v Wilson [1901] AC 315 at 323.

237. Prior to, or around the time of, Federation, legislation in the colonies established various other Commissioners and Boards with an assortment of judicial powers.  Those powers were exercised in a variety of circumstances, including in diversity cases.  Some examples of these Commissioners and Boards were Railway Commissioners[287], the dental board of New South Wales, which in considering charges of infamous conduct was obliged to sit in open court[288], and Land Tax Commissioners[289].  Commissioners of Customs (in South Australia, named the Collector for Port Adelaide) had jurisdiction to determine disputes between an officer of Customs and other persons[290].  For instance, in Victoria the Commissioner of Trade and Customs determined various disputes arising in the port of Melbourne, including those between masters or owners of ships, importers, consignees, or exporters, and any officer of Customs[291].  In Tasmania these disputes could, in certain circumstances, be heard and finally determined by the Minister, with any orders for penalties or forfeiture given the force of an order of the Justices sitting in Petty Sessions[292].  Many of these disputes must have involved diversity jurisdiction or admiralty or maritime jurisdiction.

     (v)       No principled basis for the implication

     [287]Railways Act 1890 (Vic) (54 Vict No 1135), Pt II, Div 1; Government Railways Act 1901 (NSW), Pt II.

     [288]Dentists Act 1900 (NSW), ss 3, 9.

     [289]Land Tax Act 1877 (Vic) (41 Vict No 575), s 9.

     [290]Customs Act 1864 (SA) (27 & 28 Vict No 19), s 138; Customs Regulation Act 1879 (NSW) (42 Vict No 19), s 23; Customs Act 1890 (Vic) (54 Vict No 1081), s 38.

     [291]Customs Act 1890 (Vic) (54 Vict No 1081), s 38.

     [292]Customs Act 1897 (Tas) (61 Vict No 6), ss 19, 20.

238. The Attorney-General of the Commonwealth suggested one principled basis for the implication. His submission was that, unless the exercise of this power by tribunals was excluded, the States could easily defeat a Commonwealth attempt under s 77(ii) of the Constitution to make federal courts the exclusive repository for the exercise of judicial power over ss 75 and 76 subject matters. However, as the Solicitor-General properly accepted in oral submissions, such a basis "would not carry great weight" if Commonwealth legislation were capable of excluding the concurrent exercise of State judicial power over these subject matters by administrative tribunals. Commonwealth legislation under s 77(ii) is, indeed, so capable.

239. Another potential basis for the proposed implication might be a need to ensure that only a State judge could exercise State diversity jurisdiction. But even federal diversity jurisdiction can be exercised by non-judges. A State "court" in s 77(iii), which can be invested with federal jurisdiction, has been described as "an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions"[293].  Ministerial officers include Masters and Registrars[294].  The Master or Registrar can exercise federal diversity jurisdiction, subject to review, even if the Master[295] or Registrar[296] is not a member or constituent part of the court[297].  In The Commonwealth v Hospital Contribution Fund[298], Gibbs CJ (with whom Stephen J agreed) went so far as to suggest that "a court composed of laymen, with no security of tenure, might effectively be invested with jurisdiction under s 77(iii)".

     [293]Kotsis v Kotsis (1970) 122 CLR 69 at 91; [1970] HCA 61; The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 58, 60; [1982] HCA 13.

     [294]See Harris v Caladine (1991) 172 CLR 84 at 92, 93-94, 121, 148-149, 163-164; cf at 108, 138-139; [1991] HCA 9.

     [295]The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, considering Supreme Court Act 1970 (NSW), s 25.

     [296]Supreme Court Act 1935 (WA), s 6; cf Supreme Court Act 1935 (SA), s 7; Constitution Act 1975 (Vic), s 75(2).

     [297]Constitution, s 79.

     [298](1982) 150 CLR 49 at 57. See also at 66 per Murphy J ("subject to review or appeal").

240. A further reason for the proposed implication could be that State jurisdiction over diversity, admiralty and maritime matters was of such a nature that it could never be entrusted to bodies other than State courts.  The Attorney-General of the Commonwealth properly abstained from making this submission.  There are two basic problems with it.

241. First, a purported purpose that administrative tribunals could not be entrusted with diversity, admiralty or maritime jurisdiction would have to turn upon whether the tribunal could be described as a "court", a word of protean quality[299] which, at the State level, could not easily be differentiated from a non-court tribunal[300].  However important the distinction between courts and non-court tribunals at federal level is today, that distinction could not support a justification or purpose in 1901 that drew a sharp distinction at State level between the trust to be afforded to State administrative bodies compared with State courts.  State courts included the many justices of the peace[301] and magistrates[302] of State courts, who exercised many administrative powers as members of the public service[303].  Further, all those exercising judicial power, whether as judges or not, and whether on courts or not, were required to do so in a judicial manner, that is, according to reason and justice[304]. 

     [299]Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77 at 81 [17]. See also Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64]; [2006] HCA 44.

     [300]Kirk v Industrial Court(NSW) (2010) 239 CLR 531 at 573 [69].

     [301]Jaffe and Henderson, "Judicial Review and the Rule of Law:  Historical Origins", (1956) 72 Law Quarterly Review 345 at 363.  See also Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248 at 271 [91]; 351 ALR 225 at 250; [2018] HCA 4.

     [302]Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77 at 89 [69].

     [303]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 165 [37]; [2004] HCA 31.

     [304]Sharp v Wakefield [1891] AC 173 at 179; R v London County Council; Ex parte Akkersdyk; Ex parte Fermenia [1892] 1 QB 190 at 195; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 445, see also at 452.

242. Secondly, the historical record does not support this purported justification. At Federation there does not appear to have existed a clear distrust of administrative tribunals or decision makers as compared with courts. As I explained above, administrative decision makers proliferated and they adjudicated on admiralty and maritime matters and diversity matters, as well as general matters of national importance. In this respect, Australia was in the same position as the United States. Diversity jurisdiction was included as a head of federal jurisdiction not because it had any special importance requiring only a court to adjudicate upon it. As Mr Dixon KC observed in evidence before the Royal Commission on the Constitution in 1927, there was no better reason for inclusion in the Australian Constitution of diversity jurisdiction as a subject matter of federal jurisdiction "than the desire to imitate an American model"[305].

     [305]Australia, Royal Commission on the Constitution of the Commonwealth:  Minutes of Evidence, (1927), pt 3 at 785. See also Cowen, "Diversity Jurisdiction: The Australian Experience", (1955-1957) 7 Res Judicatae 1 at 4.

243. There is one justification for the proposed implication that could be both principled and coherent. That justification would apply if the Constitution had been structured in such a way as to require a strict separation of powers at State level that mirrored the separation of powers at the federal level. If so, the exercise of State judicial power by an administrative tribunal in diversity, admiralty and maritime matters would infringe a strict separation of judicial and executive powers at State level. But, apart from limited and specific exceptions, the Constitution does not recognise or require a separation of powers at State level either generally or in relation to particular subject matters[306]. This Court's many statements that, by s 77 of the Constitution, the Commonwealth takes State courts as they are found (including with State non-judicial powers) assume the opposite, even if those statements are subject to particular exceptions[307].

     (vi)     No basis for any extension of the Boilermakers implication

     [306]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 598 [37]; [2004] HCA 46; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 354 [53]; [2009] HCA 49; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573 [69].

     [307]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 599 [38], citing Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313; [1912] HCA 42; Le Mesurier v Connor (1929) 42 CLR 481 at 496-498; [1929] HCA 41; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555; [1938] HCA 37; Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37; [1943] HCA 13; Kotsis v Kotsis (1970) 122 CLR 69 at 109; Russell v Russell (1976) 134 CLR 495 at 516-517, 530, 535, 554; [1976] HCA 23; The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 61.

244. The Attorney-General of the Commonwealth submitted that the proposed implication was recognised in the Boilermakers' Case. That case was concerned with the separation of powers at the federal level. It established, as had generally been accepted in relation to the United States Constitution, that Ch III of the Constitution is an exhaustive statement of the manner in which the judicial power of the Commonwealth may be vested[308]. As the majority noted, "the effect of the framework of Art III [of the United States Constitution] was known and it was intended that the same broad principles affecting the judicial power should govern the situation of the judicature in the Commonwealth Constitution"[309].  However, the effect of the Attorney-General of the Commonwealth's submission was that the Boilermakers' Case had, without any obvious reason for doing so, established an implication contrary to that which had been accepted in the United States.

     [308]Boilermakers' Case (1956) 94 CLR 254 at 270.

     [309]Boilermakers' Case (1956) 94 CLR 254 at 297.

245. The Attorney-General of the Commonwealth submitted that the majority in the Boilermakers' Case recognised an implied limitation upon State legislative powers in relation to matters such as diversity, admiralty and maritime matters in the following passage[310]:

     "The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature.  The demarcation of the powers of the judicature, the constitution of the courts of which it consists and the maintenance of its distinct functions become therefore a consideration of equal importance to the States and the Commonwealth.  While the constitutional sphere of the judicature of the States must be secured from encroachment, it cannot be left to the judicial power of the States to determine either the ambit of federal power or the extent of the residuary power of the States."

     The majority continued as follows:

     "The powers of the federal judicature must therefore be at once paramount and limited.  The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained."

     [310](1956) 94 CLR 254 at 267-268.

246. In this passage, when read as a whole, the majority were emphasising that the jurisdiction of federal courts "was not to be left to the general discretion of the Parliament of the Commonwealth, still less the legislatures of the States"[311].  It was the paramount responsibility of the federal judicature to determine the boundaries of federal judicial power, being those matters inside the boundaries of federal judicial power and those matters outside the boundaries of federal judicial power (the residuary power of the States).  The majority were not making any observation, contrary to the approach taken in the United States, about a lack of State judicial power over matters that fell within concurrent State legislative power.  On the contrary, and apart from the boundaries of federal judicial power, the majority said that the constitutional sphere of the judicature of the States must be secured from encroachment.

     [311]Gould v Brown (1998) 193 CLR 346 at 422 [120]; [1998] HCA 6. See also Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 574-575 [111]; [1999] HCA 27.

247. The Attorney-General of the Commonwealth also relied upon the Queen of Queensland Case as supporting the proposed implication.  The simplest answer to that submission is that, as Leeming JA said in the Court of Appeal[312], there was no issue in that case about the capacity of a State Parliament to confer judicial power on a tribunal.  More particularly, as Leeming JA also observed[313], the only comments in that case that might support the proposed implication were made by Jacobs J, with whom McTiernan J "substantially" agreed[314].  But, with respect to Jacobs J, the premise of his observations was simply wrong.

     [312]Burns v Corbett (2017) 343 ALR 690 at 712 [89].

     [313]Burns v Corbett (2017) 343 ALR 690 at 711 [88].

     [314]Queen of Queensland Case (1975) 134 CLR 298 at 303.

248. In the Queen of Queensland Case this Court considered the validity of legislation of the Queensland Parliament that purported to confer power upon the Attorney-General of Queensland to, in particular circumstances, apply to the Supreme Court for a certificate that would permit a question to be referred to the Judicial Committee of the Privy Council.  If a certificate were granted, the Governor in Council was required to request that Her Majesty make the referral.  All members of the Court held that the legislation was invalid.  In these appeals, the Attorney-General of the Commonwealth relied upon a passage where Gibbs J, with whom Barwick CJ, Stephen and Mason JJ agreed, said that[315]:

     "It is implicit in Ch III that it is not permissible for a State by legislation to provide a procedure by which the Judicial Committee is enabled to consider an inter se question in the absence of a certificate of this Court ...  Legislation passed by a State which had that effect would violate the principles that underlie Ch III – that questions arising as to the limits of Commonwealth and State powers, having a peculiarly Australian character, and being of fundamental concern to the Australian people, should be decided finally in this Court ...  In other words, such legislation would be contrary to the inhibitions which, if not express, are clearly implicit in Ch III."

     [315](1975) 134 CLR 298 at 314-315.

249. That passage was immediately preceded by his Honour's observation that Ch III enabled the Commonwealth Parliament to legislate so that all of the matters in ss 75 and 76, except possibly inter se questions, would be finally decided by the High Court and not the Judicial Committee[316].  The exercise of Commonwealth legislative power in that way meant, either expressly or impliedly, that the States could not legislate to achieve a different effect.  This conclusion says nothing about the existence of State legislative power to confer State judicial power on a State tribunal prior to any exercise of Commonwealth legislative power.

     [316](1975) 134 CLR 298 at 314.

250. On the other hand, the implication does derive some support from the reasoning of Jacobs J. His Honour said that "[t]he subject matters under [ss 75 and 76] of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch III of the Constitution"[317].  This observation is not correct.  As explained above, the States retained their colonial jurisdiction at least in relation to diversity matters (s 75(iv)) and admiralty and maritime matters (s 76(iii)).

     [317](1975) 134 CLR 298 at 328.

251. Finally, the Attorney-General of the Commonwealth relied upon comments made by five members of this Court in K-Generation Pty Ltd v Liquor Licensing Court[318]. There, Gummow, Hayne, Heydon, Crennan and Kiefel JJ said that there is "no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a 'court of a State'". The effect of the submission was that this statement implied that State legislatures could not confer judicial powers on a non-court tribunal in respect of subject matters in ss 75 and 76. As Leeming JA observed in the Court of Appeal, this submission involves a basic logical fallacy: to say that the street is wet when it is raining does not mean that the street is dry when it is not raining[319].  Even more obviously, to say that there is "no doubt" that the street is wet when it is raining says nothing about whether and when the street will be dry. 

     C. The effect of ss 38 and 39 of the Judiciary Act

     [318](2009) 237 CLR 501 at 544 [153].

     [319]Burns v Corbett (2017) 343 ALR 690 at 713 [93].

252. The alternative submission by the Attorney-General of the Commonwealth was that ss 38 and 39 of the Judiciary Act invalidated the conferral by any State Parliament of State diversity jurisdiction upon a body other than a State court.  That submission should be accepted.

253. For the reasons set out above, the power in s 77(ii) is not confined only to making exclusive of State courts the subject matters of federal jurisdiction. The power is to make federal jurisdiction exclusive of any and all State jurisdiction with respect to the subject matters in ss 75 and 76. The State jurisdiction that can be excluded is any concurrent State authority to exercise judicial power over those subject matters that had been vested in State courts or State tribunals which are subject to judicial review by State courts.

254. Commonwealth legislation that is an exercise of the power to exclude under s 77(ii), if intended to be "a complete statement"[320] of the circumstances in which jurisdiction over a particular subject matter can be exercised, does not require s 109 of the Constitution to render invalid any State legislative provision conferring authority over the same subject matter upon a State court or tribunal. Although an "accepted view" has been that State laws giving effect to the "belongs to" jurisdiction become inoperative by the operation of s 109[321], the invalidity, in the sense of inoperability, can also be seen as arising directly from the exclusionary effect required by s 77(ii), just as the invalidity of the legislation in the Queen of Queensland Case was held to flow directly from the exclusionary effect of the exercise by the Commonwealth of its power under s 74, so that matters in ss 75 and 76 would be finally decided by the High Court.

     [320]Victoria v The Commonwealth ("the Shipwrecks Case") (1937) 58 CLR 618 at 630; [1937] HCA 82.

     [321]MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 619 [24], citing Felton v Mulligan (1971) 124 CLR 367 at 412-413; [1971] HCA 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 471, 476; [1980] HCA 32.

255. The only remaining question, then, is whether ss 38 and 39 of the Judiciary Act exercised, in full, the "power to exclude"[322] in s 77(ii). If they did fully exercise that power to exclude then they would have (i) taken away the authority of State courts and administrative tribunals to exercise judicial powers over all matters in which the High Court had exclusive jurisdiction, including diversity matters, and (ii) given new federal authority to the State courts only, by the power in s 77(iii), to exercise their powers over these matters, including diversity matters.

     [322]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142; [1907] HCA 76.

256. If the text of ss 38 and 39 were read literally, and without context, then those sections would apply only to courts and not to tribunals. However, one important matter of context is that the text of ss 38 and 39 borrowed from s 77 of the Constitution, including the phrase in s 39(1) of the Judiciary Act "exclusive of the jurisdiction of the ... Courts of the States". This is a strong indication that those sections should be construed in the same manner as s 77(ii), and as an exercise of the full breadth of its power. For the reasons expressed above in relation to ss 77(ii) of the Constitution, the description in ss 38 and 39(1) of the Judiciary Act of the jurisdiction of the High Court as "exclusive" should be construed as being exclusive of all State jurisdiction of the nature of that concurrent jurisdiction invested in the several State courts.

257. There is also a significant purpose underlying the construction of ss 38 and 39 as a scheme which fully exercised the power in s 77(ii). The "whole object"[323] of the provisions was to place conditions upon the exercise of the previously concurrent State jurisdiction, including to ensure the existence of an appeal to this Court.  If the State legislation in these appeals[324] could operate alongside these provisions of the Judiciary Act to confer authority upon a non-court tribunal to exercise its powers in diversity matters, there would be a significant detraction from this scheme.  The same diversity dispute could be adjudicated by a tribunal but without the conditions imposed by the Judiciary Act, including the possibility of appeal to this Court.  It is not to the point that in some cases there might, ultimately, be a route to special leave if there were a power to bring an appeal or an application for judicial review of the matter to the New South Wales Supreme Court.  In other cases this might not be so.  There is no condition that would require an appeal to this Court to be ultimately available, with special leave, from a decision of a non-court tribunal.

     D.       Conclusion

     [323]Booth v Shelmerdine Bros Pty Ltd [1924] VLR 276 at 278.

     [324]Anti-Discrimination Act 1977 (NSW), Pt 9, Div 3, esp ss 95, 102-108; Civil and Administrative Tribunal Act 2013 (NSW), Sched 3, cl 3.

258. These appeals were conducted on the considered assumption by all parties and interveners that the Civil and Administrative Tribunal of New South Wales was not a court of the State.  The Attorney-General of the Commonwealth justified that assumption on the basis that the legislation constituting the tribunal does not expressly designate it as a court[325], and that it lacks the minimum degree of independence and impartiality[326], being an implied requirement of a court referred to in Ch III.  No submissions were made about the qualities of the tribunal, or the basis for, or operation of, this required minimum, which, on one view[327], includes the obligation of courts to act judicially, a longstanding characteristic of all bodies exercising judicial power[328].

     [325]Cf K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 529 [85], 562-563 [219]-[221]; Public ServiceAssociation and Professional Officers' Association Amalgamated of NSW v Director of Public Employment (2012) 250 CLR 343 at 352 [12]; [2012] HCA 58.

     [326] North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [29]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 81 [78].

     [327]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 106 [181]-[183]; [2013] HCA 7.

     [328]Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 at 379, 386; R v London County Council; Ex parte Akkersdyk; Ex parte Fermenia [1892] 1 QB 190 at 195; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 452; Sweeney v Fitzhardinge (1906) 4 CLR 716 at 737; [1906] HCA 73; Goldsmith v Sands (1907) 4 CLR 1648 at 1658; [1907] HCA 47.

259. No new constitutional implication should be recognised. The legislative power that States would otherwise have had to confer State diversity jurisdiction on State tribunals was not withdrawn at Federation. However, the effect of ss 38 and 39 of the Judiciary Act was to render inoperative the conferral by State Parliaments of concurrent State authority over matters in federal jurisdiction to bodies other than State courts.

260. There is a very significant practical difference between the conclusion I reach on this basis and the same conclusion reached on the basis of a constitutional implication. If the pre-Federation, colonial legislative power to confer jurisdiction on non-court tribunals in diversity, admiralty and maritime matters had been impliedly withdrawn by a constitutional implication, then it would require a referendum, under s 128 of the Constitution, for that legislative power to be returned to the States. The conclusion that this power, in significant use at Federation, had been impliedly withdrawn subject only to change by a referendum is not supported by the express or implied meaning of the constitutional text, read in its historical context and in light of its purpose. Nor is it required or justified by any decision or assumption since Federation. In contrast, the best construction of s 77(ii), having regard to its historical context and purpose and that of Ch III generally, supports a conclusion that leaves the power with the Commonwealth Parliament to exclude (as it did), or not to exclude, the exercise by a State of its concurrent legislative power in relation to its courts and tribunals. As Leeming JA said in the Court of Appeal, that construction "left it open to the Commonwealth Parliament to have a High Court with original jurisdiction confined to s 75 matters and otherwise not to exercise the powers to create federal courts or to invest federal jurisdiction in State courts"[329] or to exclude any concurrent State jurisdiction.

     [329]Burns v Corbett (2017) 343 ALR 690 at 706 [63].

261. The appeals should be dismissed and orders made as proposed in the joint judgment of Kiefel CJ, Bell and Keane JJ.