Case: Kable v Director of Public Prosecutions [1996] HCA 24 ; (1996) 189 CLR 51
Outcome: cited
At the outset, two things can be noted. First, the question is not how the Anti-Discrimination Act itself characterises the Tribunal, but whether the Tribunal answers the description of a "court" in ss 71 and 77 (iii) of the Constitution and s 39(2) of the Judiciary Act . Secondly, the terms "court" and "court of a State" are to be construed in a context where, subject to such qualifications as may arise from the Kable doctrine ( Kable v Director of Public Prosecutions [1996] HCA 24 ; (1996) 189 CLR 51), the separation of powers, strictly applied in relation to the federal judiciary, does not apply at the State level. 60 The applicants accepted that there is no comprehensive test by which it is possible to define the characteristics of a court of a State. However they point to the following features: &#8226; The Tribunal is not called a court; &#8226; Not all members of the Tribunal must be lawyers, although the chairperson must be a legal practitioner of not less than seven years standing, a magistrate or former judge. If there is only one member, he or she must have these qualifications (s 12); &#8226; Members do not take an oath of office; &#8226; Members have no security of tenure, they are appointed by the Minister (s 12(1) (b) and (c)) and can be suspended or removed by the Minister ( Acts Interpretation Act 1931 (Tas), s 21(1)(a)) ; &#8226; Proceedings in the Tribunal are commenced by referral by the Commissioner, not by the complainant (s 78(1)); &#8226; A person may be represented before the Tribunal only with its permission (s 85(2)); &#8226; The Tribunal is not bound by the rules of evidence and is to proceed with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before the Tribunal permit (ss 86(1), 87(4)(a)); &#8226; The Tribunal may start or continue an inquiry in the absence of the complainant or any other relevant person (s 86 (3)); &#8226; Appeals lie from the Tribunal to the Supreme Court of Tasmania on questions of law or fact (s 100); &#8226; It is an offence to hinder proceedings under the Act, insult persons performing functions under the Act etc (s 106) but there is no contempt power conferred on the Tribunal itself. 61 On this issue the State of Tasmania supported the applicants. However, the second respondent pointed out: &#8226; The Tribunal's function is to apply the legal standards prescribed by the Anti-Discrimination Act to the facts it finds; it does not operate by way of conciliation, arbitration or rule making; &#8226; The Tribunal is empowered to make orders or grant relief of a kind traditionally granted by courts, including (in substance) injunctions both prohibitive and mandatory, monetary compensation and fines (s 89) ; &#8226; Although called an inquiry (s 78) , the proceeding before the Tribunal is essentially inter partes and adversarial. There must be a complainant who has complained to the Commissioner, and there must be a respondent, the person, class of persons or organisation against whom the complaint is made (s 62(1)(b)) ; &#8226; The Tribunal may amend complaints (s 84) ; &#8226; The Tribunal makes procedural directions (s 80) ; &#8226; The Tribunal is required to give reasons when requested by a party (s 93) ; &#8226; Hearings are to be held in public unless the Tribunal otherwise orders (s 85(1)) ; &#8226; The Tribunal may take evidence on oath or affirmation (s 87(1)) ; &#8226; The Tribunal may summon witnesses (s 87(2)) ; &#8226; The Tribunal must observe the rules of natural justice (s 87(4)(a)) ; &#8226; The Tribunal may make an order for costs if it considers the circumstances justify such an order (s 95) ; &#8226; The Tribunal's orders, upon filing with the Supreme Court, become enforceable as if they were orders of that Court (s 90) ; &#8226; A member of the Tribunal has immunity against liability for conduct in good faith done in exercise of powers or performance of functions (s 103).