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)

Last Updated: 18 April 2018

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

Appeal dismissed.



The appellant pay the first respondent's costs.





Matter No S185/2017

Appeal dismissed.



The appellant pay the first respondent's costs.





Matter No S186/2017

Appeal dismissed.



The appellant pay the second respondent's costs.





Matter No S187/2017

Appeal dismissed.



The appellant pay the second respondent's costs.





Matter No S188/2017

Appeal dismissed.



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.

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"). 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. 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. 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. 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

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"). 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] The AD Act allows complaints under that Act to be referred to NCAT [2] 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] 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. 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). 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] The Administrative Decisions Tribunal found that Ms Corbett had breached the AD Act and ordered her to make a public and private apology [5] [6] [7] 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] [9] [10] 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] Constitution and the Judiciary Act.

The Constitution

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] 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."

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."

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."

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."

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] 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."

It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III [16] [17] [18] Constitution [19] 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] 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

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. 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. 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] 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."

The Court of Appeal

The appeals to this Court

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. 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. 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. 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. 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

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. 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] 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

Chapter III of the Constitution, and in particular ss 71 and 77, adopted the "autochthonous expedient" [28] 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] 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. 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. 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. 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?"

The actual decision in the Boilermakers' Case confirmed that, notwithstanding the widely held understanding up to that time [32] 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. 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. 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] MZXOT v Minister for Immigration and Citizenship, Gleeson CJ, Gummow and Hayne JJ adverted [34] Constitution, which renders the Constitution (set out in s 9 of the Commonwealth of Australia Constitution Act 1900 (Imp) [35] 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] s 73; or that of the original jurisdiction conferred by s 75 [37] [38] 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 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".

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] Even though the existence of State courts depends on State law, and they remain State courts when co-opted into the federal Judicature [41] [42] s 77 allows to be co-opted into the federal Judicature are those which are courts [43] 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] s 75 or s 76 matter in an agency of its executive government. 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. In The Commonwealth v Queensland [45] 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."

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] 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] 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."

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

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] s 77(iii), rather than follow the lead of the United States [51] [52] [53] [54]

Belonging to the "courts of the States"

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. 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. 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). 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]."

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] 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] [59] 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] [61] [62] [63] 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] [65] 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] 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.

Conclusion

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

The appeals to this Court should be dismissed. 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

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] 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). 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

"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."

Section 109 and its limits

"[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."

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. 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."

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] s 76 or s 77(i) or (iii) "by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction" [92] 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] [94] [95] Using the common metaphor of covering the field serves to highlight the critical inquiry for the purpose of s 109 as one of determining the permissible reach of the legal operation of the Commonwealth law [96]

"The question thus metaphorically stated arises when one asks of a valid Commonwealth law governing a particular matter whether or not it appears that it is intended that it be the whole law on the matter, intended to deal with a topic within Commonwealth power exhaustively and completely to the entire exclusion of State law. But the metaphor of occupation of a field is of no help in the initial question, what is the extent of the field available for Commonwealth occupation."

The implication and its necessity

History and its limits

History is important to constitutional interpretation. That is because the Constitution was framed against the background of "many traditional conceptions" [123] Constitution was forged can illuminate its purposes and can expose nuances of potential meaning not obvious from its text [124] In arguing against the constitutional implication denying State legislative power to confer State judicial power with respect to a subject matter identified in s 75 or s 76 on a non-court State tribunal, a consideration of historical detail on which New South Wales and State interveners placed considerable emphasis concerned the position of Local Land Boards established under the Crown Lands Act 1884 (NSW). New South Wales and State interveners argued that the implication would have jeopardised part of the functioning of those Local Land Boards. That consideration appears to have been treated in the decision under appeal as supporting rejection of the implication [125] Without descending unassisted into the complex and otherwise redundant legal analysis and factual inquiry which would need to be undertaken were it necessary to decide [126] [127] Legislative, judicial and administrative practices occurring since federation are by no means irrelevant to constitutional interpretation. "Every public officer, every citizen, has daily to interpret the law for himself; and the common consent of the community, operating over a long period of time, can establish a practice and a tradition of constitutional interpretation which may act as a gloss on the text of the Constitution, and carry weight with its authentic interpreters." [128] Constitution the validity of the provisions impugned cannot be sustained" [129] But practices adopted by State entities in the administration of former colonial legislation during the early years following federation without apparent advertence to the potential impact of the Constitution carry no interpretative weight at all. Post-federation practices of that dubious nature do not gain interpretative weight by being portrayed as indicative of pre-federation expectations. They cannot be bootstrapped into significance on the basis that they were a continuation of pre-federation practices which those involved or others with oversight of those involved might be assumed in light of their later conduct or lack of intervention to have expected to continue. I reiterate: on federation, everything adjusted. Sections 107 and 108 of the Constitution recognised as much in the qualified terms in which they respectively continued colonial legislative power as State legislative power and continued colonial legislation as State legislation. To the extent that colonial legislation could be worked conformably with the text and structure of the Constitution, colonial legislation continued after federation as State legislation. To the extent that colonial legislation could not be worked conformably with the text and structure of the Constitution, colonial legislation ceased to operate [130] That a particular adjustment to State legislative or judicial or administrative practice may not have been immediately perceived or immediately implemented does not mean that the adjustment was not warranted by the Constitution. Appreciation of the express terms of the Constitution has taken time. So has the unfolding of its implications. Observations made by the Chief Justice at the first sitting of the High Court, nearly three years after federation, were prescient [131]

"I think it will be some time before the profession and the public fully realise the extent of the power of criticism and determination that is vested in this Court with respect to the decrees of the State and Federal Legislatures. Enormous and difficult questions will arise, and it is not to be expected that our decisions will meet the views of all parties."

Not to be forgotten is that the "struggle for standards" [132] Constitution in the first two decades after federation was manifested in disagreement about two very large constitutional implications which commended themselves to an early majority of the High Court: the supposed immunity of Commonwealth and State instrumentalities each from legislative interference by the other, and the supposed reservation of State legislative power over intra-State trade to the exclusion of Commonwealth legislative power. Then, in 1920 [133] Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realization that Australians were now one people and Australia one country" [134] There is no reason in constitutional principle why a structural implication must be shown to accord with pre-federation expectations, or be shown to be likely to have been recognised by some actual or notional office holder or other potential litigant at the time of federation, in order for that structural implication now to be judicially recognised or confirmed. The Constitution was not framed for the moment of its creation, but as an enduring instrument of government. "Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution." [135] [136] Constitution in light of that experience and to do so consistently with developments in constitutional doctrine that have been expounded over the years that have passed since federation. Judicial explication of the Constitution has sometimes disappointed expectations and has sometimes called past practices into question. That it will continue on occasions to do so is almost inevitable if the judiciary is to continue to perform its constitutional function of interpreting the Constitution only as and when required in the context of determining controversies that are truly controversial. Telling, however, is the fact that it was found necessary to hark back to the very early years of federation for an example of what was asserted to be an established practice which would have been jeopardised by recognition of the implication now under consideration. To no-one who has studied the course of the High Court's exegesis of Ch III over the past half-century [137] [138] [139] s 75 or s 76 on a non-court State tribunal now come as a surprise.

Conclusion and orders

On the unchallenged assumption that NCAT is not a State court, the implied constitutional exclusion of State legislative power to confer State judicial power on a non-court State tribunal has consequences for the provisions of the NCAT Act which purport to confer State judicial power on NCAT. The provisions are invalid to the extent that they purport to confer State judicial power with respect to subject matters identified in ss 75 and 76 of the Constitution. The provisions can and should be read down pursuant to s 31 of the Interpretation Act 1987 (NSW) to exclude conferral of State judicial power with respect to those subject matters [140] Anti-Discrimination Act 1977 (NSW) ("the AD Act") between residents of different States within s 75(iv) of the Constitution by excluding from the jurisdiction conferred on NCAT by the NCAT Act authority to determine a complaint by a resident of one State that a resident of another State contravened a provision of the AD Act. The appeals should be disposed of by making the orders proposed by Kiefel CJ, Bell and Keane JJ.

NETTLE J. These are appeals from a judgment of the Court of Appeal of the Supreme Court of New South Wales (Bathurst CJ, Beazley P and Leeming JA) in which it was held that the Civil and Administrative Tribunal of New South Wales did not have jurisdiction under s 49ZT of the Anti-Discrimination Act 1977 (NSW) to resolve complaints made by a resident of one State against residents of other States [141] Constitution prohibits a State tribunal which is not a "court of a State" within the meaning of s 77(iii) of the Constitution ("a non-court State tribunal") resolving matters between residents of different States in the exercise of State jurisdiction. I have had the advantage of reading in draft the reasons for judgment of Gordon J and with respect agree with her Honour's conclusions. It is appropriate nonetheless that I explain the reasons which have brought me to that point. At the outset, it is necessary to observe that in Ch III of the Constitution the term "jurisdiction" refers to the authority to adjudicate upon a class of questions concerning a particular subject matter. State jurisdiction is the authority which State courts possess to adjudicate under the State Constitution and laws and federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws. The former is that which "belongs to" State courts within the meaning of s 77 of the Constitution and the latter is that which is invested in State courts by the Commonwealth Parliament [142] Section 71 of the Constitution invests the judicial power of the Commonwealth in the High Court of Australia. Section 75 confers original jurisdiction on the High Court in five kinds of matter, of which the fourth includes the relevant head of matters between residents of different States. Section 76 empowers the Commonwealth Parliament to confer original jurisdiction on the High Court in a further four kinds of matter. Section 77 provides with respect to any of the matters mentioned in s 75 or s 76 that the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court in relation to the matters; (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of the jurisdiction which "belongs to or is invested in" State courts; and (iii) investing any State court with federal jurisdiction. Together, these several provisions of Ch III of the Constitution empower the Parliament to enact an integrated system of federal and State courts for the adjudication of ss 75 and 76 matters in the exercise of federal jurisdiction, to the exclusion of the State jurisdiction of State courts [143] [144] As was observed in Grannall v Marrickville Margarine Pty Ltd [145]

"[E]very legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter."

Such authority to legislate for controls necessary to effectuate the main purpose of a power is an implied incidental power which is distinct and separate from, and broader than, the incidental power granted to the Parliament under s 51(xxxix) of the Constitution to make laws with respect to matters which are incidental to the execution of the legislative power [146] Nationwide News Pty Ltd v Wills [147] thus:

"Each specific grant of legislative power in the Constitution extends to all matters incidental to the subject matter of the power which are 'necessary for the reasonable fulfilment of the legislative power' over that subject matter. Or, to put it another way, the specific substantive power extends to matters 'the control of which is found necessary to effectuate its main purpose'. On the other hand, s 51(xxxix) is directed not so much to matters incidental to the nominated subject of legislative power but rather to the execution of the various powers vested in the three branches of government. ...

If one thing emerges clearly from the decisions of this Court it is that, to bring a law within the reach of the incidental scope of a power, it is enough that the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary for the effective exercise of the power." (footnotes omitted)

"Doubts have been expressed by Professor Cowen and by Professor Sawer as to the availability of s 109 to meet the problem under discussion: see Cowen's Federal Jurisdiction in Australia, p 195; and Sawer, in Essays on the Australian Constitution, edited by Else-Mitchell, 2nd ed, p 86. Those writers have suggested that s 39 does not disclose an intention 'to cover the field', but, on the contrary, indicates that the intention was not to override, in all the matters to which s 39(2) refers, the jurisdiction which already belonged to the State courts. But in spite of difficulties created by the manner in which s 39 has been framed, my conclusion is that the laws under which the State courts would exercise their 'belonging' jurisdiction are made inoperative by s 39. If sub-s (2) thereof had simply invested the State courts with federal jurisdiction without adding the conditions and restrictions to which the investing was expressed to be subject, there would be perhaps no conflict with any laws under which the State courts already had jurisdiction. But when the conditions which have been attached to the grant of federal jurisdiction are considered, I think it should be held that Parliament intended that in the federal matters to which the section relates the only jurisdiction to be exercised by the State courts was to be federal jurisdiction, the exercise of which would be subject to the specified conditions."

Similarly, in the preponderance of subsequent decisions of this Court regarding the operation of s 39 of the Judiciary Act, it has been held or accepted that the exclusion of the State jurisdiction of State courts in relation to ss 75 and 76 matters is the result of s 109 of the Constitution [152] By contrast, in The Commonwealth v Queensland [153] [154] Constitution is exhaustive of the manner in and extent to which judicial power may be conferred on or exercised by State courts in relation to ss 75 and 76 matters, it is necessarily implicit in Ch III that the State jurisdiction of State courts in relation to those matters was withdrawn on Federation:

"In my opinion the judicial power delineated in Ch III is exhaustive of the manner in and the extent to which judicial power may be conferred on or exercised by any court in respect of the subject matters set forth in ss 75 and 76, 'matters' in those sections meaning 'subject matters'. This is so not only in respect of federal courts but also in respect of State courts whether or not they are exercising federal jurisdiction conferred on them under s 77(iii). In respect of the subject matters set out in ss 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch III and if in respect of those matters an investing with federal jurisdiction of a State court does not enable it to perform the particular judicial function, then in respect of those matters the State court cannot under any law exercise that judicial function. Therefore, if in respect of those matters a State court exercising federal jurisdiction cannot give 'advisory opinions' it cannot in respect of the same matters give such opinions in exercise of some State jurisdiction. Chapter III of the Constitution is so constructed that the limits of the Commonwealth power to invest State courts with federal jurisdiction with respect to the matters mentioned in ss 75 and 76 mark out the limits of the judicial power or function which in any case State courts can exercise in respect of those matters. A State thus could not empower one of its courts to give advisory opinions on those subject matters. The court would be exercising judicial power but not a judicial power envisaged by Ch III and able to be conferred on it by the Commonwealth. It is then no answer to say that the State is conferring a judicial power which the Commonwealth is unable to confer. There is here no residuary State power, because Ch III is an exhaustive enunciation." (emphasis added)

The proceedings

In 2013 and 2014, Mr Burns lodged separate complaints with the Anti-Discrimination Board of New South Wales alleging that Ms Corbett and Mr Gaynor had each contravened s 49ZT of the AD Act. Section 49ZT(1) provides that it is unlawful "for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group". 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. The complaint against Ms Corbett was referred to the Administrative Decisions Tribunal of New South Wales ("the ADT"), the predecessor to NCAT [164] s 49ZT of the AD Act and ordered her to make both a public and a private apology. Ms Corbett appealed to the Appeal Panel of NCAT, which dismissed her appeal. The orders requiring Ms Corbett to make the apologies were then entered in the Supreme Court pursuant to s 114 of the AD Act. Mr Burns subsequently brought proceedings in the Supreme Court charging Ms Corbett with contempt for failing to comply with those orders. In those proceedings, Ms Corbett contended by way of defence that NCAT (and its predecessor) had no jurisdiction in relation to the complaint brought by Mr Burns because, among other things, she was a resident of Victoria. The contempt proceedings were then removed to the Court of Appeal for determination of separate questions addressing the jurisdiction of NCAT (and its predecessor) to determine a matter between residents of different States. It was common ground before the Court of Appeal that NCAT is not a "court of the State" [165] AD Act involved the exercise of judicial power by NCAT. The remaining matters in this Court relate to complaints against Mr Gaynor. Three complaints made by Mr Burns against Mr Gaynor were referred to NCAT. Mr Burns later lodged further complaints against Mr Gaynor. The substance of the complaints and the procedural history can be put to one side. It is sufficient for present purposes to observe that the proceedings in relation to the first three complaints were dismissed on the basis that there had been no "public act" in New South Wales so as to engage the prohibition in s 49ZT of the AD Act; and, further, that a costs order was made against Mr Gaynor at an interlocutory stage. Mr Gaynor was granted leave to appeal to the Court of Appeal against that costs order and by summons sought a declaration to the effect that NCAT lacked jurisdiction to adjudicate on complaints relating to citizens resident in a State other than New South Wales. The Court of Appeal heard and determined the jurisdictional question in each proceeding. The Attorney-General of the Commonwealth and the Attorney General for New South Wales intervened. The Court of Appeal held that NCAT had no jurisdiction to hear and determine the complaints against Ms Corbett and Mr Gaynor. In this Court, the Commonwealth's primary submission, advanced by notice of contention, was that there is an implied constitutional constraint on State legislative power, such that any State law is invalid to the extent that it purports to confer judicial power in respect of any of the matters identified in ss 75 and 76 of the Constitution on a person or body that is not one of the "courts of the States". The Commonwealth's alternative submission, which had been accepted by Leeming JA in the Court of Appeal [166] s 39(2) of the Judiciary Act and thus invalid by operation of s 109 of the Constitution. The Attorney General for New South Wales, supported by the intervening State Attorneys-General, submitted that the Court of Appeal was correct to reject the Commonwealth's primary submission but wrong to accept the Commonwealth's alternative submission that NCAT is unable to exercise judicial power to determine matters between residents of different States by reason of s 109 of the Constitution.

Jurisdiction – nature and source

The question whether a State Parliament can validly vest in an administrative tribunal, not being a court of a State, jurisdiction in a matter between residents of different States within the meaning of s 75(iv) of the Constitution necessarily directs attention to the nature and source of the jurisdiction in issue. "Jurisdiction", in relation to a subject matter, refers to the authority to adjudicate upon a class of questions concerning that subject matter [167] Constitution and laws; federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws" [168] Section 75 of the Constitution defines five classes of matters in which the High Court shall have original jurisdiction. Under s 76 of the Constitution, the Commonwealth Parliament may make laws conferring original jurisdiction on the High Court in a further four classes of matters. Federal jurisdiction is authority to adjudicate on those nine classes of matters which is vested by the Constitution or by Commonwealth laws enacted under it [169] With respect to any of the matters mentioned in ss 75 and 76 of the Constitution, the Commonwealth Parliament may, under s 77, 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."

Section 77(ii) draws a distinction between jurisdiction that "belongs to" the courts of the States and jurisdiction that "is invested in" those courts. That distinction reflects the demarcation of State jurisdiction from federal jurisdiction: "[t]hat 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"[170].

Section 109 or constitutional implication?

Where it is contended that a law of a State and a law of the Commonwealth conflict with one another, s 109 of the Constitution requires a comparison between the two laws and "resolves conflict, if any exists, in favour of the Commonwealth" [189] s 109 is concerned with the identification of conflict between laws that are otherwise valid. As explained in D'Emden v Pedder, "[w]hen a law of a State otherwise within its competency is inconsistent with a law of the Commonwealth on the same subject, such subject being also within the legislative competency of the Commonwealth, the latter shall prevail" [190] s 109. Each of the Commonwealth's submissions sought to demonstrate that the purported conferral of jurisdiction by the AD Act to address the complaints by Mr Burns was not permitted under the Constitution. Resolution of these appeals must begin with the Commonwealth's primary submission, by which it contended that there is an implied constitutional limitation which denies to a State Parliament the power to invest a person or body other than a State court with jurisdiction in matters within ss 75 and 76. If such a limitation were found to exist, the AD Act would not validly confer jurisdiction on NCAT to adjudicate on matters between residents of different States. It follows that there could be no relevant conflict with s 39 of the Judiciary Act, and any consideration of the invalidating operation of s 109 of the Constitution (the subject of the Commonwealth's alternative submission) would be hypothetical.

Constitutional implication?

Inconsistency

Other issues

By amended notices of contention, Ms Corbett and Mr Gaynor advanced several further arguments as to why the appeals to this Court should be dismissed. The contention that no State jurisdiction at all could be exercised in matters between residents of different States after Federation should be rejected for the reasons given earlier [224]

Conclusion

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

EDELMAN J.

Introduction

Immediately before Federation, the Parliaments of Australian colonies had plenary legislative powers to pass laws for the peace, welfare and good government of the colony. By s 107 of the Constitution, these powers were to continue unless they were exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of a State. The primary submission by the Attorney-General of the Commonwealth in these appeals was that Ch III of the Constitution impliedly withdrew from State Parliaments part of these legislative powers. The implied withdrawal was said to be that State Parliaments would no longer have the power that colonial Parliaments had to confer jurisdiction on administrative tribunals over particular subject matters. The facts and background to these appeals are described by Gordon J in her Honour's reasons and need not be repeated. It suffices to say that the power said by the Attorney-General of the Commonwealth to have been impliedly withdrawn was State legislative power to confer jurisdiction upon administrative tribunals to decide diversity cases. These are cases where one party is, or becomes, a resident of a different State. If accepted, this submission would not be confined to the implied removal of State legislative power to confer diversity jurisdiction upon tribunals. It would also mean that there was an implied removal of State legislative power to confer jurisdiction on tribunals over admiralty and maritime matters [225] There was, and is, no necessity for this proposed constitutional implication. In the United States, the justification for including diversity jurisdiction as a head of federal jurisdiction remains controversial [226] [227] s 77(ii) of the Constitution. That sub-section provides the Commonwealth Parliament with an express power to make matters, including those involving a diversity of parties, exclusive to federal courts. Section 77(ii) was "merely an explicit enactment of what in the Constitution of the United States [was] held to be implied" [228] At the time of Australian Federation there were hundreds of State administrative tribunals in the United States exercising powers of adjudication, including in diversity cases. Their numbers were rapidly expanding. Likewise, in Australia, tribunals exercising diversity jurisdiction and admiralty or maritime jurisdiction proliferated. An implied withdrawal of State power to confer diversity, admiralty or maritime jurisdiction upon a tribunal would have meant that State Customs Commissioners no longer had power to determine a dispute if an importer or consignee in the dispute was a resident of a different State, or if the dispute with the shipper was within "Admiralty and maritime jurisdiction". It would have meant that the continuing jurisdiction of established tribunals, such as the local Land Boards or Boards of Railway Commissioners, would be reduced to exclude the resolution of disputes involving persons who became residents of another State. It would have meant that local Marine Boards would have had no maritime jurisdiction. In each case, the relevant State would have been required to transfer that jurisdiction to a State court. The implication would also have meant that Imperial Vice-Admiralty Courts in New South Wales and Victoria ceased to exist because they were not State courts. No authority compels that this implication now be drawn from the Constitution 117 years after Federation. The implication was not made by this Court in R v Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers' Case") [229] Boilermakers' Case [230] relying upon the approach taken in the United States, was that there was a separation of federal judicial power and federal executive power. It was, emphatically, not that there was a separation of State judicial power and State executive power. Since Federation, and until very recently, the States have assumed that, subject to exclusion by a Commonwealth law, they have legislative power to confer jurisdiction on tribunals in diversity, admiralty and maritime matters. That assumption is correct. In the alternative, the Attorney-General of the Commonwealth submitted that ss 38 and 39 of the Judiciary Act 1903 (Cth) were, in part, an exercise of the Commonwealth power pursuant to s 77(ii) of the Constitution to exclude State diversity jurisdiction. He submitted that s 109 of the Constitution rendered inoperative any State law conferring jurisdiction over the same subject matter upon bodies other than State courts. The first part of that submission should be accepted. However, it is not necessary that the State law be understood as rendered inoperative by reason of s 109 of the Constitution. It can more simply be seen as rendered inoperative directly by the exercise by ss 38 and 39 of the Judiciary Act of the power to exclude in s 77(ii) of the Constitution. The reasons for these conclusions are set out in more detail as follows below. I respectfully acknowledge the considerable assistance that I have derived from the lucid reasons in the Court of Appeal of the Supreme Court of New South Wales of Leeming JA, with whom Bathurst CJ and Beazley P agreed [231]

A. Pre-Federation and post-Federation history [210] B. A new constitutional implication? [212] (i) Section 77 of the Constitution and the proposed implication [212] (ii) The implication is inconsistent with the United States model [216] (iii) The text of s 77(ii) does not require the implication [218] (iv) The implication is inconsistent with the historical context of s 77(ii) [225] (a) Vice-Admiralty Courts [226] (b) Local Marine Boards [228] (c) Local Land Boards [234] (d) Other State Commissioners and Boards [237] (v) No principled basis for the implication [238] (vi) No basis for any extension of the Boilermakers implication [244] Judiciary Act C. The effect of ss 38 and 39 of the [252] D. Conclusion [258]

A. Pre-Federation and post-Federation history

The implication proposed by the Attorney-General of the Commonwealth relied heavily upon a narrow meaning of s 77(ii) of the Constitution. Apart from lacking a principled basis, that narrow meaning is inconsistent with the historical model and the historical context of s 77(ii) at Federation. In the discussion in Pt B of these reasons, the period before Federation is taken as the starting point from which to construe the meaning of s 77(ii) and any proposed implication from it and Ch III. The submissions of every counsel in this case properly accepted the relevance of legal history to the proposed constitutional implication. The submissions were based upon two assumptions. It would be a distraction from the issues in this case to debate the precise foundations and method of application of those assumptions. It suffices to say that they are both well-established. The first was that an understanding of the history and context of a provision, viewed objectively without personal prejudices or preferences of the construing judge, assists in the process of characterising the "contemporary [or, perhaps more accurately, contemporary essential [232] Constitution finally emerged" [233] [234] [235] [236] In the face of a powerful historical analysis in these appeals, particularly that presented by the Attorneys-General for New South Wales, Queensland, and Western Australia, the Attorney-General of the Commonwealth relied upon three post-Federation developments in this Court effectively in support of a constitutional practice underpinning the proposed implication and shaping the meaning of s 77(ii) despite the context in which it was enacted. These developments were the Boilermakers' Case, The Commonwealth v Queensland ("the Queen of Queensland Case") [237] K-Generation Pty Ltd v Liquor Licensing Court [238]

B. A new constitutional implication?

(i) Section 77 of the Constitution and the proposed implication

(ii) The implication is inconsistent with the United States model

Section 77(ii) of the Constitution made express that legislative power to exclude which was implied in the United States. At the time of Australian Federation it was clear that the concurrent State power in the United States was not limited to courts. Hamilton's reasoning that Art III, §2 of the United States Constitution had not impliedly alienated State power applied equally to the concurrent jurisdiction of State administrative tribunals. The operation of the United States model, upon which s 77(ii) was based, had the effect that unless Congress were to legislate to make exclusive the authority to adjudicate upon diversity matters, that authority would remain shared between the United States and State bodies, including both courts and administrative tribunals. There were hundreds of State tribunals in the United States exercising powers of adjudication. The powers were exercised over diversity matters [246] [247] [248]

(iii) The text of s 77(ii) does not require the implication

The text of s 77(ii) assumed importance in these appeals because the meaning of s 77(ii) is a crucial consideration in ascertaining whether the Commonwealth has power to exclude all State jurisdiction where it exists concurrently over subject matters contained in ss 75 and 76. On any view, a constitutional implication removing part of a State's concurrent power could not be necessary if there is Commonwealth power to exclude the concurrent State power. The Attorneys-General of the Commonwealth and Western Australia submitted that the Commonwealth has power to exclude State legislation conferring concurrent State jurisdiction over State administrative tribunals in diversity matters. That submission relied upon s 77(ii) in combination with s 51(xxxix). In effect, their submission was that the power to exclude in s 77(ii) went beyond the literal terms of that sub-section due to the incidental power. Although it may ultimately be a question of degree as to when the meaning of an expression will include matters that are impliedly incidental to it without regard to an express incidental extension, the power to exclude all State jurisdiction with respect to matters in ss 75 and 76 of the Constitution is best seen as arising from s 77(ii) itself without the need to rely upon s 51(xxxix). The focus of s 77(ii) is upon a power to make exclusive the jurisdiction of any federal court. The expression "any federal court" in s 77(ii) includes the High Court (unlike in s 77(i), which excludes the High Court). The power therefore includes the ability to make the existing federal jurisdiction of the High Court over matters in ss 75 and 76 exclusive of "that which belongs to or is invested in the courts of the States". It is an immediate power to exclude. The notion of exclusivity usually connotes jurisdiction exclusive of all other authority. This unsurprising proposition is supported by the drafting history of s 77(ii). The terms of 77(ii) were "substantially contained" [249] [250] This drafting history emphasises that the purpose of the provision that became s 77(ii) was to provide the Commonwealth Parliament with a power to make federal jurisdiction exclusive of all other authority. The reference to the possibility of jurisdiction "concurrent with that of the Courts of the States" was merely descriptive of the alternative to exclusive authority (ie concurrent authority). That alternative did not confine the power to make federal jurisdiction exclusive. If the Commonwealth Parliament chose not to make federal jurisdiction exclusive, and instead vested in new federal courts a jurisdiction that was concurrent with that of the State courts, then the new federal jurisdiction could also be concurrent with any existing State jurisdiction of State administrative tribunals. Although the final text of s 77(ii) describes the power of the Commonwealth Parliament in terms of making the federal jurisdiction exclusive of the concurrent jurisdiction of the State courts, this phrase similarly need not be construed as assuming that the only repository of concurrent State jurisdiction is State courts and not State tribunals. It could equally be construed as based on the assumption, which was given effect by this Court in 2010 as an implication from which State Parliaments could not detract [251] [252] There is a further explanation for the failure of the drafters of s 77(ii) to specify "tribunals" as another type of body of which the jurisdiction of the federal courts could be made exclusive. As Fry LJ said, when considering common law immunity from suit, "tribunal" had no ascertainable meaning and its inclusion alongside "court" was legally embarrassing [253] Boilermakers' Case. It merely illustrates a contextual reason why the concurrent jurisdiction of the States was described by reference to courts rather than by reference to "courts and tribunals" or even, in more cumbersome language, "courts, or other bodies conferred with judicial power that might not fulfil the essential requirements for a court".

(iv) The implication is inconsistent with the historical context of s 77(ii)

As in the United States, there was a proliferation of administrative bodies in Australia including administrative bodies exercising judicial power over diversity, admiralty and maritime matters. In The State of New South Wales v The Commonwealth ("the Wheat Case") [254] [255] Constitution that removed this jurisdiction. Further, at the time of Federation, in New South Wales and Victoria there were Vice-Admiralty Courts, with jurisdiction from the High Court of Admiralty. They were not courts of the States. It is convenient to begin with those Courts and then turn to the colonial tribunals to illustrate the strength of the common assumption at Federation.

(a) Vice-Admiralty Courts

From 1841 [256] [257] [258] [259] Colonial Courts of Admiralty Act 1890 (Imp) [260] [261] [262] Constitution than it would be to assert that administrative boards and tribunals established under British legislation stood outside the scheme of Ch III of the Constitution. There is no principled basis for such a distinction. As Quick and Garran observed, the Vice-Admiralty Courts could not be called "courts of the States" [263] s 77(ii), it does not seem ever to have been contemplated that these Courts might have been abolished by a negative implication flowing from Ch III generally or s 77(ii) specifically. On the contrary, it seemed "clear that the constitution of those courts [was] not in any way affected by the establishment of the Commonwealth" [264]

(b) Local Marine Boards

The Merchant Shipping Act Amendment Act 1862 (Imp) [265] [266] [267] In 1876, Sir James Martin CJ (with whom Hargrave J agreed) considered the New South Wales Marine Board's power to investigate the cause of a collision, saying that [268]

"I am clearly of opinion that the Board forms such a Court to which a prohibition will issue. It has all the elements of a Court – the power of summoning parties and witnesses, and punishing them if they disobeyed the summons – of hearing evidence on oath administered, and of deciding questions which might deprive persons of civil rights."

Although the New South Wales Marine Board might have been characterised as a court, in 1899 the New South Wales Parliament enacted legislation, which was reserved for Royal Assent, transferring the powers of the Marine Board to the Superintendent of the Department of Navigation, except for its powers to fix salaries or fees, to make or recommend the making of rules or regulations, and to appoint, suspend or dismiss officers, or recommend them for appointment, suspension or dismissal [269] In Queensland, where the Marine Board was not described as a court, it was also recognised that some of the powers exercised by the Marine Board were judicial powers. In Burrey v Marine Board of Queensland [270] Navigation Act 1876 (Q) [271] For their entire existence, in some cases for many decades after Federation, it was never suggested that any of the local State Marine Boards (or the New South Wales Superintendent) were invalidly constituted due to an implication from Ch III of the Constitution that prevented them from exercising State jurisdiction over admiralty and maritime matters. In contrast, when a Court of Marine Inquiry was established under the Navigation Act 1912 (Cth), the validity of that Commonwealth legislation was challenged on grounds which included that the Court of Marine Inquiry was not a court within the meaning of Ch III and, therefore, could not exercise judicial power [272] In R v Turner; Ex parte Marine Board of Hobart [273] Marine Act 1921 (Tas) or the Court of Marine Inquiry established under the Navigation Act. There was no dispute that the Tasmanian tribunal had the power to conduct the inquiry, subject to it being "superseded" by the Court of Marine Inquiry [274] [275] Constitution and that, in any event, its functions were "not necessarily judicial" [276] [277] [278]

(c) Local Land Boards

Another example of local tribunals that exercised judicial power, including in diversity matters, was local Land Boards. In Queensland, Griffith CJ described the Land Board established under the Crown Lands Act 1884 (Q) [279] [280] Real Property Act Commissioners as "very high judicial powers" [281] [282] In New South Wales, the Local Land Boards established pursuant to the Crown Lands Act 1884 (NSW) [283] [284] [285] Crown Lands Act also gave the Minister the power to hear appeals. 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

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] [288] [289] [290] [291] [292]

(v) No principled basis for the implication

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. 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] [294] [295] [296] [297] The Commonwealth v Hospital Contribution Fund [298] s 77(iii)". 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. 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] [300] [301] [302] [303] [304] 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] 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] 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

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] 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] Boilermakers' Case had, without any obvious reason for doing so, established an implication contrary to that which had been accepted in the United States. 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."

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] 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] [313] [314] 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."

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] 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] (s 75(iv)) and admiralty and maritime matters (s 76(iii)). 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]

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

D. Conclusion

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] [326] [327] [328] 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. 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 wi