Case: Telstra Corporation Limited v Worthing [1999] HCA 12 ; (1999) 197 CLR 61
Outcome: distinguished
The applicants relied on Telstra Corporation Limited v Worthing [1999] HCA 12 ; (1999) 197 CLR 61. One of the questions in that case was whether the Workers Compensation Act 1987 (NSW) applied to the Commonwealth. That Act contained a provision (s 6(1)), very like s 4 of the Anti-Discrimination Act , that the Act "binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities". The High Court said at [21] (citations omitted): "As to the 1987 State Act, it contains the express statement in s 6(1), as to the Crown being bound in all its other capacities, which has been set out earlier in these reasons. However, a central provision of the legislative scheme established by the 1987 State Act is the requirement, under the sanction of a penalty, that an employer, other than a self-insurer, obtain and maintain in force a policy of insurance which complies with the requirements of the legislation (s 155). Further, a 'self-insurer' who holds a license granted, as the 1987 State Act originally stood, by the State Compensation Board constituted thereunder, was obliged, under penalty, to maintain with the New South Wales Treasurer a deposit in an amount determined by that Board (s 213). It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth. No such indication is to be seen in the 1987 State Act. To the contrary, s 6(2) states that nothing in that statute renders 'the Crown' liable to be prosecuted for any offence. These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests." Worthing is an application of the principle that the question whether a State statute binds the Commonwealth is a matter of construction, turning on the intent of the State legislature as manifested by the text and purpose of the particular statute. The Anti-Discrimination Act could not be said to have central penal provisions comparable to those in the New South Wales Act. Nor is there any equivalent to s 6(2) of that Act. 34 I conclude therefore that as, by s 4, Parliament intended to bind the Crown in capacities other than in the right of Tasmania, those capacities must include the Crown's capacity in the right of the Commonwealth. Subject to the constitutional issues which are discussed below, the Anti-Discrimination Act binds the Commonwealth. It must necessarily follow that agents of the Commonwealth are bound. 35 Part 6 of the Anti-Discrimination Act is entitled "Dispute resolution". It commences with Div 1- Complaints, s 60 of which provides: "(1) Any of the following may complain to the Commissioner about discrimination or prohibited conduct: (a) a person against whom the alleged discrimination or prohibited conduct was directed; (b) a person (i) against whom the alleged discrimination or prohibited conduct was directed; and (ii) who is a member of a class of persons against whom alleged similar discrimination or prohibited conduct was directed, on behalf of that class, if the Commissioner is satisfied that a majority of those members are likely to consent; (c) a trade union that represents (i) a member of that union against whom the alleged discrimination or prohibited conduct was directed; or (ii) a class of members of that union against whom the alleged discrimination or prohibited conduct was directed, if the Commissioner is satisfied that a majority of those members are likely to consent; (d) an organisation against which the alleged discrimination or prohibited conduct was directed, if the Commissioner is satisfied that a majority of members of that organisation are likely to consent; (e) an agent of a person referred to in this section; (f) a person on behalf of the person against whom the alleged discrimination or prohibited conduct was directed. (2) The Commissioner may investigate any discrimination or prohibited conduct without the lodgement of a complaint if satisfied that there are reasonable grounds for doing so." 84 A law of a State will be inconsistent with a law of the Commonwealth: &#8226; where simultaneous obedience to both laws is impossible: Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2 ; (1968) 117 CLR 253 at 258-259; &#8226; where one law takes away a right, power or authority conferred by the other law: Botany Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464; &#8226; where the State law would alter, impair or detract from the operation of the Commonwealth law or the exercise of a power under the Commonwealth law: Telstra Corporation v Worthing [1999] HCA 12 ; (1999) 197 CLR 61 at 76, Victoria v Commonwealth (The Kakariki) [1937] HCA 82 ; (1937) 58 CLR 618 at 630-631, APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 219 ALR 403 at [41] - [45] ; and &#8226; where a law of a State enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]; Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 465-466; Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483.