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NCAAT: residents of different states February 6, 2017

Burns v Corbett; Gaynor v Burns [2017] NSWCA 3


In 2013 and 2014, Mr Garry Burns made separate complaints to the Anti‑Discrimination Board of NSW about statements made by Ms Therese Corbett and Mr Bernard Gaynor which he claimed were public acts which vilified homosexuals, contrary to s 49ZT of the Anti-Discrimination Act. Both complaints were referred to 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.

Although the parties to these two disputes raised numerous constitutional and non‑constitutional arguments, submissions were heard only on the threshold constitutional issue: can the NSW Civil and Administrative Tribunal (NCAT) hear and determine a dispute arising under the Anti-Discrimination Act 1977 (NSW) between a resident of New South Wales and a resident of another State?

Mr Burns’ disputes in NCAT were matters falling within the diversity jurisdiction conferred on the High Court by s 75(iv) of the Constitution. Section 77(iii), with respect to any of the matters mentioned in s 75 and 76, grants the federal Parliament legislative power to invest any court of a State with federal jurisdiction. Section 39(2) of the Judiciary Act 1903 (Cth) conditionally invests a State court with federal jurisdiction to hear and determine matters falling within one of the classes identified in ss 75 and 76.

It was common ground that NCAT:

  1. was not a “court of the State” for the purposes of Chapter III of the Constitution, and
  2. was exercising State judicial power in resolving Mr Burns’ complaints under the Anti-Discrimination Act.

Jurisdiction of NCAT

Held, per curiamdeciding that NCAT does not have jurisdiction to resolve Mr Burns’ complaints:

1. The effect of s 39 of the Judiciary Act is, by operation of s 109 of the Constitution, to deny any State jurisdiction in State courts exercising when determining any of the matters identified in ss 75 or 76 of the Constitution: at [1]. [2], [27], [55].

Felton v Mulligan (1971) 124 CLR 367, Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457, PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 89 ALJR 975, followed.

2. Neither the text nor structure of the Constitution implies that a State tribunal cannot determine matters falling within ss 75 and 76.

  1. The text of Ch III does not itself mandate a uniform national system within the classes of matters falling within federal jurisdiction. Whether or not there is such uniformity depends on the extent to which the legislative power in s 77 is exercised: [1], [2], [58]-[59], [63]-[64].
  2. Further, although it is settled law that the structure of Chapter III impliedly prevents the conferral of federal judicial power upon bodies other than courts, and the conferral of State judicial power upon federal courts, neither of those undoubted implications assists in sustaining the implication upon the conferral of State judicial power upon State tribunals: at [1], [2], [65].

3. A State tribunal which is not a “court of a State” is unable to exercise judicial power to determine matters between residents of two States because the State law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act of all such jurisdiction in State courts, and therefore rendered inoperative by virtue of s 109 of the Constitution: at [1], [2], [66], [75], [78], [95].

Felton v Mulligan (1971) 124 CLR 367; Commonwealth v Queensland (1975) 134 CLR 298; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) [2006] NSWCA 349; 236 ALR 385; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4; Commonwealth v Anti-Discrimination Tribunal (Tas(2008) 169 FCR 85; PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; 89 ALJR 975, Qantas Airways Ltd v Lustig(2015) 228 FCR 148; [2015] FCA 253, considered.

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