The High Court of Australia, in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ (at [1]–[47]); Edelman J agreeing, in separate reasons (at [48]-[86])), has unanimously held that the Tasmanian Anti-Discrimination Tribunal (ADT) lacked jurisdiction to hear and determine a complaint of disability discrimination in breach of the Anti- Discrimination Act 1998 (Tas) (AD Act).

The matter that comprised the complaint was found to be outside of the ADT’s jurisdiction on the basis that the respondents to the complaint had raised a defence that invoked provisions of the Disability Discrimination Act 1992 (Cth) and the Disability (Access to Premises – Buildings) Standards 2010 (Cth) (together, the ‘Commonwealth Acts’), which, it was argued, were inconsistent with the AD Act and which would thus have the effect of rendering inoperable the AD Act by force of section 109 of the Constitution.

Although the respondents’ asserted defences were subsequently rejected by the Full Court of the Supreme Court of Tasmania, the non-colourable invocation of such issues before the ADT was found by the High Court to be sufficient to bring the matter outside the ADT’s jurisdiction.

It follows that a proceeding before a state tribunal, which does not meet the description of a court of a state for the purposes of chapter III of the Constitution, cannot be maintained if, as in the instant case, a non-colourable defence, which invokes a constitutional issue or a federal law, is raised.

Background

The factual and procedural circumstances of the case were as follows.

The appellants, Citta Hobart Pty Ltd and Parliament Square Hobart Landowner Pty Ltd, were respectively the developer and the owner of land that was being developed as part of the Parliament Square redevelopment project in Tasmania, and relevantly were the respondents to the original complaint made under the AD Act to the ADT (at [49]). The respondent, Mr David Cawthorn, had paraplegia, required a wheelchair for mobility, and relevantly was the complainant before the ADT (at [49]).

The respondent alleged that the appellants’ failure to provide adequate wheelchair access in their redevelopment of Parliament Square constituted disability discrimination under the AD Act (at [4]). The appellants alleged in their defence to the complaint that they had complied with the Commonwealth Acts, which they asserted covered the field in relation to disability discrimination and which thus rendered inoperable the state Act by force of section 109 of the Constitution (at [4]).

The ADT dismissed the respondent’s complaint for want of jurisdiction on the basis that the issues raised by section 109 of the Constitution meant that the matter was within federal jurisdiction and could not be heard or determined by the ADT (at [5]).

The respondent appealed to the Full Court of the Supreme Court of Tasmania, following which the Full Court addressed the substance of the appellants’ constitutional arguments and unanimously rejected them (at [6]).1 In so doing, the Full Court ordered that the matter be remitted to the ADT to be heard and determined (at [6]).

In the instant appeal to the High Court, it was unanimously affirmed that the ADT was correct to dismiss the complaint for want of jurisdiction and that no order for remittal to the ADT should have been made by the Full Court of the Supreme Court of Tasmania (at [10] and [51] – [52]).

The jurisdiction of state tribunals such as the ADT

The starting point for the plurality in the instant appeal was that a state parliament does not possess the legislative capacity to confer on a state tribunal, which is not relevantly a court of the state for the purposes of chapter III of the Constitution, judicial power with respect to the classes of matters set out in sections 75 and 76 of the Constitution (at [1]).

In the instant appeal, the purported relevant classes of matters came within section 76 of the Constitution, being:

• section 76(i) of the Constitution (‘arising under this Constitution’) – with respect to the purported application and operation of section 109 of the Constitution; and

• section 76(ii) of the Constitution (‘arising under any laws made by the Parliament’) – with respect to the purported application and operation of provisions of the Commonwealth Acts.

The constitutional expression of a ‘matter’ was the subject of much exposition. Put simply, a ‘matter’ for the purposes of sections 75 and 76 of the Constitution:

• is to be treated the same regardless of whether the ‘matter’ comes before a tribunal or a court (at [30] and [61]);

• can take its ‘constitutional’ character (that is, its alignment with the description given by section 76(i) of the Constitution) or ‘federal law’ character (that is, its alignment with the description given by section 76(ii) of the Constitution) from an issue raised in either of a claim or a defence to a claim (at [31]);

• on the obtainment of a ‘federal law’ character or ‘constitutional law’ character, the whole of the matter is to be characterised as a ‘federal law’ or ‘constitutional’ matter (at [31] and [83]); and

• will remain a ‘federal law’ or ‘constitutional’ matter despite the resolution of the ‘federal law’ or ‘constitutional’ aspect of the matter, including if that aspect is dismissed or abandoned (and even if it is struck out or summarily dismissed) (at [31] and [40]).

Following on from these propositions, it was accepted that the appellants’ assertion of a defence under the Commonwealth Acts, and allied assertion of a defence by reference to section 109 of the Constitution, introduced to the matter a ‘federal law’ and ‘constitutional’ character that recast the matter as a ‘federal law’ and a ‘constitutional’ matter (at [46] – [47]).

Accordingly, and notwithstanding that both of these defences were dismissed by the Full Court of the Supreme Court of Tasmania, the matter retained its character as a ‘federal law’ and ‘constitutional’ matter. It followed that the ADT lacked jurisdiction to hear and determine the matter and the respondent’s complaint that came within it (at [46] – [47]).

The ‘colourability’ of a matter

The High Court also affirmed the existing limits that inform whether a claim or a defence would enliven issues of ‘federal jurisdiction’ and relevantly bring a matter within sub-sections 76(i) and (ii) of the Constitution. The touchstone is that any claim or defence raised must not be ‘colourable’ in the sense that it has been made for the purpose of ‘fabricating’ jurisdiction (at [36]).

The plurality maintained the view that ‘it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument’ (at [35]), over argument that the standard should be lowered to a test ‘consistent with the raising of the claim or defence in a court not amounting to an abuse of the process of that court’ (at [41]).

Accordingly, the plurality observed that a claim or defence, which was subsequently found to be ‘foredoomed to fail’ or ‘so clearly untenable that it cannot possibly succeed’, would attract a ‘federal law’ or ‘constitutional’ character to the matter that would not be subsequently lost on the resolution of that claim or defence (at [40]).

Rather, the plurality stated that the ‘federal law’ or ‘constitutional’ character of a claim or defence would have to be ‘incomprehensible or nonsensical’ to prevent the ‘matter’ from enlivening sub-sections 76(i) or (ii) of the Constitution (at [43]).

In contrast, Edelman J appeared to set the bar lower, acceding to a standard or a threshold that if the claim or defence raised was ‘manifestly hopeless’, the matter would not become a ‘matter’ for the purposes of sub-sections 76(i) or (ii) of the Constitution (at [73], [77] and [78]).

Other issues

Further, the High Court also unanimously confirmed that:

• when the issue of jurisdiction arises, a non-court tribunal exercising judicial power, can and must determine its own jurisdiction (at [22] – [23] and [62] – [65]); and

• orders made by ADT, pursuant to section 89 of the AD Act, constituted an exercise of judicial power (rejecting the argument that such orders were ‘administrative’ and became ‘judicial’ at the point such orders were registered and enforced, pursuant to section 90 of the AD Act) (at [12] – [16] and [53] – [57]).

Implications for practitioners before the New South Wales Civil and Administrative Tribunal

Practitioners who appear before the New South Wales Civil and Administrative Tribunal (NCAT) will not need to run in fear should a questionable, but non-colourable, defence, which relevantly invokes a constitutional issue or a federal law, be raised.

Indeed, much of the deprivation of the ADT’s jurisdiction that arose in Citta Hobart Pty Ltd v Cawthorn would have found a prepared response if such matter came before the NCAT, by dint of part 3A of the Civil and Administrative Tribunal Act 2013 (Cth) (‘NCAT Act’).

Relevantly, part 3A of the NCAT Act establishes a facility by which a matter, for which the NCAT would ordinarily have original or external appellate jurisdiction, that involves ‘federal jurisdiction’ (defined broadly as being ‘jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution’)2 can be heard and determined by the Local Court of New South Wales or the District Court of New South Wales.3

Nonetheless, the High Court’s decision in Citta Hobart Pty Ltd v Cawthorn remains a useful case to read for those who have ever had questions about the law of jurisdiction in Australia, not least for its authoritative guidance on the matter of a ‘matter’ and the colour of ‘colourability’. BN

ENDNOTES

¹ Relevantly, the Full Court rejected the appellants’ constitutional arguments on their merits, holding that the Commonwealth Acts were not inconsistent with the AD Act: see, Cawthorn v Citta Hobart Pty Ltd [2020] TASFC 15 at [26] (Blow CJ); at [39] (Wood J); at [102](Estcourt J).

² See, section 34A of the NCAT Act.

³ See, section 34B of the NCAT Act.