Today, 18 April 2018, the High Court released its judgment unanimously dismissing five appeals from the Supreme Court of NSW: see Burns v Corbett; Burns v Gaynor  HCA 15.
Chief Justice Kiefel and Justices Bell, Gageler, Keane, Nettle, Gordon and Edelman held that certain provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the “NCAT Act”) were inconsistent with Chapter III of the Australian Constitution. The Court therefore held that those provisions were invalid in so far as they purported to confer jurisdiction on the Civil and Administrative Tribunal of NSW (NCAT) with regards to matters between residents of different States.
Chief Justice Kiefel and Justices Bell and Keane stated at paragraph :
“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.”
In 2013 and 2014, Mr Garry Burns made complaints to the Anti-Discrimination Board of NSW with regards to statements made by Mr Bernard Gaynor and Ms Therese Corbett. Mr Burns argued that the statements made by both Mr Gaynor and Ms Corbett breached s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the “AD Act”). At all relevant times, Mr Burns was a resident of NSW, while Mr Gaynor was a resident of Queensland and Ms Corbett was a resident of Victoria.
With regards to the complaint against Ms Corbett, the proceedings were referred to the Administrative Decisions Tribunal of NSW (the “ADT”). This was the predecessor to the NCAT. In this instance, the ADT held that Ms Corbett had breached the AD Act, and therefore ordered her to make a private and public apology to Mr Burns. Ms Corbett then unsuccessfully appealed to the Appeal Panel of NCAT. Mr Burns then appealed to the Supreme Court of NSW, alleging Ms Corbett was in contempt for failing to make either apology. Ms Corbett, in her defence, alleged that because she was a resident of Victoria, neither the ADT nor the Appeal Panel of NCAT had jurisdiction over the case.
The complaint made against Mr Gaynor was dismissed by NCAT. Mr Burns then appealed to the Appeal Panel of NCAT, and while this was occurring, an interlocutory costs order was made against Mr Gaynor. Mr Gaynor then appealed to the Supreme Court with regards to the order, alleging that NCAT did not have jurisdiction over the complaint as Mr Gaynor was a resident of Queensland.
The Court of Appeal of the Supreme Court of NSW heard both cases together, and held that NCAT did not have jurisdiction to determine the complaints by Mr Burns against Ms Corbett or Mr Gaynor. The outcome of this judgment was outlined in paragraph 27 of the judgment of Chief Justice Kiefel, Justice Bell and Justice Keane:
“In the Court of Appeal it was accepted by all parties that even though, in hearing and determining Mr Burns' complaints, NCAT was exercising the judicial power of the State because it was able to render a binding, authoritative and curially enforceable judgment independently of the consent of the persons against whom his complaints had been brought, NCAT was not a "court of the State".”
In upholding the decision of the Supreme Court of NSW, the High Court analysed the various legislative provisions relevant to this case. The Court looked at sections 71, 73, 75, 76 and 77 of the Constitution of Australia with regard to the jurisdiction that these provisions confer on the High Court. In particular, section 75, which establishes the original jurisdiction of the High Court of Australia, states:
"In all matters:
The role of the Federal Judicature, as established by the Constitution, was then analysed in the judgment of Chief Justice Kiefel, Justices Bell and Keane, at paragraph  – :
“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", at the head of which this Court exercises constitutionally guaranteed appellate jurisdiction. In Re Wakim; Ex parte McNally, Gummow and Hayne JJ said:
"[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 III16, is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion". That function is the characteristic function of the courts, albeit that, under the constitutions of the States, adjudicative authority may be vested in organs other than those recognised as courts within Ch III of the Constitution.
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.”
The Court then analysed sections 38 and 39 of the Judiciary Act 1903 (Cth), and concluded (at paragraph ), that:
“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.”
It was therefore held that, as NCAT was not a State court, it was incapable of exercising the jurisdiction allocated by means of the Judiciary Act. This was deemed to be the case as the Constitution was held to leave no room for courts, not referred to in Chapter III of the Constitution, to exercise adjudicative authority with respect to the matters outlined in sections 75 and 76 of the Constitution. Justice Gageler’s reasoning for this judgment was outlined in paragraph  and :
“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. The ultimate question now for determination is whether the exception is warranted.
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).”
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Burns v Corbett; Burns v Gaynor  HCA 15
Civil and Administrative Tribunal Act 2013 (NSW), available on TimeBase's LawOne service.
Anti-Discrimination Act 1977 (NSW), available on TimeBase's LawOne service.
Commonwealth of Australia Constitution Act (Cth), available on TimeBase's LawOne service.
Judiciary Act 1903 (Cth), available on TimeBase's LawOne service.
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