|
Article Excerpt
[This case note discusses a quartet of recent cases involving state tribunals and Chapter III of the Australian Constitution. Each of these cases addresses previously uncontroversial aspects of the distribution of judicial power between the Commonwealth and the states. Wood and Stockland, decisions of the Federal Court of Australia and the New South Wales Court of Appeal respectively, apply distinctly different tests to answer the question of whether, and if so in what circumstances, a state tribunal is to be regarded as a 'court of a State' for the purposes of Chapter Ill of the Australian Constitution and the Judiciary Act 1903 (Cth). Radio 2UE (reversing 2UE v Burns) deals with the related but subsequent question of whether a state tribunal that is not a 'court of a State' is limited in, or excluded from, exercising its 'power' or 'jurisdiction' over federal questions in consequence of implications arising from Chapter III. This case note suggests that the conclusions reached by the NSW Court of Appeal in both Stockland and Radio 2UE are difficult to reconcile with recent decisions of the High Court and may prove to be aberrations rather than portents.]
CONTENTS I Introduction II The Facts and the Decisions in Outline A 2UE v Burns B Wood C Stockland D Radio 2UE III Discussion A When Is a Tribunal a 'Court of a State'? 1 The Position of the Federal Court of Australia 2 The Position of the NSW Court of Appeal 3 Which Approach Is to Be Preferred? 4 A Circular Argument? 5 A Caveat B Does Chapter III Limit the Jurisdiction of Non-Court Administrative Tribunals? 1 Was Radio 2UE Decided per Incuriam? 2 Broader Issues 3 The Outcome in Radio 2UE Is Inherently Unstable 4 Objections of Principle 5 Does Chapter III Require a Separation of Powers Doctrine for the States? IV Conclusion
I INTRODUCTION
Australia's integrated judicial system is a product of Chapter III of the Australian Constitution.
The drafters of the Australian Constitution provided for 'a Federal Supreme Court'--the High Court of Australia--to be the prime repository of the judicial power of the Commonwealth. (1) The new Commonwealth was otherwise thought neither to require, nor have the resources to justify, the establishment of a comprehensive parallel system of federal courts. To avoid the need to establish further federal judicial institutions, an autochthonous Australian constitutional device, s 77 of the Australian Constitution, empowered the Commonwealth Parliament to invest federal judicial power not only upon such other courts as it might later create, but also upon existing and future (then colonial, but soon to become) state courts.
To ensure Commonwealth supremacy, s 77(ii) of the Australian Constitution empowered the Commonwealth Parliament to define the extent to which the jurisdiction of any federal court would be exclusive of that belonging to or invested in the states. Section 38 of the Judiciary Act was enacted pursuant to that authority.
Only in respect of a limited range of matters--the most important of which, for practical purposes, are those involving suits between states or between states and the Commonwealth--was the jurisdiction of the High Court made exclusive of the jurisdiction of the courts of the states. (2) In respect of the far larger residuum, s 39 of the Judiciary Act allowed, and continues to allow, state courts to also exercise federal judicial power. (3)
Moreover, this important statutory device also withdrew from state courts all formerly existing state judicial power that overlapped with the judicial power of the Commonwealth (4) including, for illustrative purposes, jurisdiction over litigation 'between residents of different States' (5) where prior to the passage of the Judiciary Act state courts routinely exercised state judicial power subject to the rules of private international law. (6) Section 39 then reinvested the 'several Courts of the States ... within the limits of their several jurisdictions' with most of the substance of that withdrawn state jurisdiction as part of a wider grant of federal jurisdiction. (7) To the extent that there would otherwise have been an overlap between state and federal judicial power, that possibility was removed. Henceforth, state courts could only exercise judicial power over a federal matter if their jurisdiction could be sourced to the Commonwealth Parliament's legislative investiture in them of the judicial power of the Commonwealth.
Since 1903, the Judiciary Act scheme has permitted state courts to exercise concurrent federal and state judicial power. As such, they form part of the integrated Australian judicial system. But what of the many other state bodies that now exercise judicial power? At the state level there has been an explosion in the use of what Neil Rees has described as '"court substitute" tribunals'. (8) What is their fit within the Australian constitutional structure?
Had this question been asked even a few years ago, the answer would have seemed not only obvious but also uncontentious. Such a state body, albeit named a 'tribunal', might be shown on proper legal analysis to actually be a Chapter III 'court of a State'. (9) If so, the Judiciary Act would operate to invest that tribunal with federal judicial power, just as it would any other state court. (l0) On the other hand, a state tribunal capable of exercising aspects of state judicial power, but ]not on proper legal analysis a 'court of a State', would not be at all affected by ]Chapter III considerations. By contrast with the Commonwealth, (11) state tribunals and other administrative bodies can, without objection, exercise admixed state executive, judicial and quasi-legislative powers. (12) Neither the Australian Constitution nor the Judiciary Act refer to the powers or jurisdiction of a non-court state tribunal. A state tribunal's capacity therefore would not be affected in respect of the exercise of any aspect of state judicial power it might possess over subject matter and parties which, had the tribunal been a court, would have been removed by s 39(1) of the Judiciary Act and reinvested as federal jurisdiction by s 39(2).
That these answers are now in doubt as a result of the divergent judicial approaches revealed by the decisions discussed in this case note well demonstrates the protean nature, and the seemingly endless possibilities of, Chapter III jurisprudence notwithstanding increasing overt resistance within the High Court to its continued development. (13) It also highlights the potential for an ongoing overflow of that jurisprudence from the federal to the state sphere. (14)
Wood and Stockland illustrate contrasting judicial approaches to the methodology required to answer the question whether a particular state tribunal may be regarded as a 'court of a State' for the purposes of the Australian Constitution and the Judiciary Act.
Wood, (15) a decision of the Federal Court applied the hitherto orthodox '"balance sheet" approach'. (16) That approach compares the similarities and differences between the tribunal in question and a traditional court. In undertaking this comparison, Wood emphasised substance over form. (17) By contrast, in Stockland, the NSW Court of Appeal applied a novel test based on implications said to arise from Chapter III--concluding that to be a court for constitutional purposes a tribunal must be an institution exclusively, or at least predominantly, composed of judges. (18)
2UE v Burns (19) and Radio 2UE (20) illustrate contrasting judicial approaches to the consequential question of whether a state tribunal that is not a 'court of a State' is limited in its jurisdiction over federal questions in consequence of implications arising from Chapter Ill. Radio 2UE, a decision of the NSW Court of Appeal reversing 2UE v Burns, held that while ordinarily, a state tribunal could consider submissions regarding the constitutional validity of state legislation in the course of the exercise of its statutory powers, it lacked jurisdiction to do so if its decisions, made in consequence of those constitutional considerations, could be registered in and enforced as orders of a court. (21)
The differences of judicial opinion highlighted in this quartet of cases will have significant and ongoing ramifications. Of equal importance to the development of Australian constitutional law is the recognition that the reasoning in Radio 2UE appears to require even more sweeping conclusions than those ultimately reached. (22) These cases are not only of theoretical interest; they also have direct and immediate practical implications. This is especially so given that '[o]ne of the most significant recent developments in the Australian legal system has been the creation of many new statutory decision-making bodies.' (23) Highlighting this point, Rees quotes the President of the Victorian Civil and Administrative Tribunal ('VCAT'), who identifies that Tribunal as having already become 'the principal jurisdiction for the resolution of mainstream civil disputes in Victoria.' (24)
Lawyers who represent clients involved unwillingly in state administrative proceedings will, without doubt, explore the possibilities of a Chapter III challenge seeking to oust such tribunal jurisdiction. The current uncertainties will encourage further litigation. It seems inevitable that some of the questions raised by these cases will be finally resolved only by the High Court. (25)
Until that day, state tribunals exercising admixed administrative and judicial functions are likely to face continual challenges to their powers and jurisdiction arising from these complexities, which until recently, were not evident.
II THE FACTS AND THE DECISIONS IN OUTLINE
A 2UE v Burns
In 2UE v Burns, O'Connor DCJ, sitting as President of the Appeal Panel of the New South Wales Administrative Decisions Tribunal ('NSWADT'), decided that that Tribunal was a court both in the 'general sense' and the 'Judiciary Act sense' of the word. (26)
The issue arose in the following way: a member of the public, Gary Burns, had made a complaint about homosexual vilification to the Equal Opportunity Division of the NSWADT. (27) He complained about comments made by radio presenters John Laws and Steve Price, which had been broadcast by the radio station Radio 2UE Sydney Pty Ltd ('2UE'). (28)
The Tribunal upheld Burns' complaint under s 49ZT of the Anti-Discrimination Act 1977 (NSW) ('ADA'), (29) and ordered 2UE to broadcast an apology that was to be read by Laws and Price. (30)
Laws, Price and 2UE then appealed to the Appeal Panel of the NSWADT. Their submissions challenged the constitutional validity of s 49ZT of the ADA. (31) Their counsel argued that the New South Wales law placed an unlawful burden on their freedom of political communication, (32) an implied right under the Australian Constitution. (33)
The NSW Attorney-General intervened. (34) On the NSW Attorney-General's behalf, counsel objected to the Tribunal considering this question on the ground that the Tribunal was not a 'court' within the meaning of s 39(2) of the Judiciary Act. (35) The NSW Attorney-General asserted that because the Tribunal was not a court, 'it [was] not invested with the authority to hear matters arising under the Constitution or involving its interpretation'. (36) The NSW Attorney-General argued that as an administrative body constituted under state law, the Tribunal was bound to accept the constitutional validity of the laws of NSW, including s 49ZT of the ,4DA. (37) Hence, it was contended that if an argument of inconsistency with the Australian Constitution was advanced before it, the Tribunal was obliged to refer any such question to the NSW Supreme Court pursuant to s 118(1) of the Administrative Decisions Tribunal Act 1997 (NSW). (38)
O'Connor P rejected the argument that the NSWADT (both as constituted generally and, more particularly, as the Appeal Panel) was not a court. (39) His Honour also rejected the NSW Attorney-General's related proposition that, assuming the Tribunal was not a court, it would lack authority to form a view regarding...
|
