mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tana v Baxter (1986) 180 CLR 572
Outcome: cited
Pointing out that the Tribunal is called a tribunal, not a court, the applicants referred to Tana v Baxter (1986) 180 CLR 572. The issue in that case was whether certain claims for relief before the Industrial Commission of New South Wales fell within s 11(1)(a)-(f) of the Service and Execution of Process Act 1901 (Cth) so as to enable service out of that State. The majority (Gibbs CJ, Mason, Deane and Dawson JJ) noted at 161 that it was not disputed that the Commission, which was declared by s 14(1) of the Industrial Arbitration Act 1940 (NSW) to be a superior court of record, was a court within the meaning of s 11(1) of the Service and Execution of Process Act . Brennan J however said at 582: "As at present advised, I should not think that such a provision [scil, s 14(1)] necessarily establishes that the tribunal to which it relates is a court for the purposes of s 71 of the Constitution , albeit such a provision is an important indicium of a tribunal's character. The Commission's character as a court was not contested in these proceedings and I should wish to reserve consideration of that question until it is argued."
Case: Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282
Outcome: discussed
I do not think Brennan J's reservation carries the matter much further. What is called a tribunal (or a commission, or a panel, or a board) may be on closer examination be a court for the purposes of s 77(iii) , just as a body which is called a court may not satisfy the constitutional requirement. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282, Ipp JA, with whom Spigelman CJ and Handley JA agreed, considered at [37]-[69] whether the Workers Compensation Commission of New South Wales was a "court" within the meaning of s 77(iii). After analysing in detail the particular legislation constituting that body his Honour came to the conclusion that it was not. However his Honour did not rely on, or even mention, the fact that the body in question was called a commission. Implicitly it seems his Honour took the same approach as did McHugh JA in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515: "There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a 'court' even though it is not called a court and has lay members. Function and purpose, not labels, should be our guide." 80 There have been decisions of the Victorian Civil and Administrative Tribunal some of which hold, and others of which deny, that that body is a court. Recently Judge O'Connor of the Appeal Panel of the New South Wales Administrative Decisions Tribunal held that that body was a "court" both in the "general sense" and "in the Judiciary Act sense": Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31] , [39]. His Honour analysed in detail the decision in Orellana-Fuentes . He observed at [31] that the Court of Appeal had taken a "balance sheet approach", comparing conventional attributes of a court in the Australian system with elements in the structure that deviated from the conventional attributes, many of which were plainly of a non-judicial character and did not connote the level of independence expected of a court. He found at [43] that the key factors which tipped the balance were the "significant administrative and non-judicial attributes". These are discussed in the judgement of Ipp JA in Orellana-Fuentes at [44]-[51] and notably included the conciliation function of Arbitrators, who were members of the Commission (and appointed by the Commission's President, in itself something "foreign to the notion of a court": [42]) and the reference of medical disputes to "approved medical specialists". Comparable features were not present in the body under consideration in Radio 2UE , nor are they present in the Tribunal. Indeed a feature of the Anti-Discrimination Act is the conferral of conciliation functions on the Commissioner, rather than the Tribunal, whose role, undoubtedly a judicial one, comes into play after conciliation has failed.
Case: Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515
Outcome: cited
I do not think Brennan J's reservation carries the matter much further. What is called a tribunal (or a commission, or a panel, or a board) may be on closer examination be a court for the purposes of s 77(iii) , just as a body which is called a court may not satisfy the constitutional requirement. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282, Ipp JA, with whom Spigelman CJ and Handley JA agreed, considered at [37]-[69] whether the Workers Compensation Commission of New South Wales was a "court" within the meaning of s 77(iii). After analysing in detail the particular legislation constituting that body his Honour came to the conclusion that it was not. However his Honour did not rely on, or even mention, the fact that the body in question was called a commission. Implicitly it seems his Honour took the same approach as did McHugh JA in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515: "There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a 'court' even though it is not called a court and has lay members. Function and purpose, not labels, should be our guide."
Case: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 ; (1995) 183 CLR 245
Outcome: cited
The provision for enforcement of the Tribunal's orders by means of filing in the Supreme Court is effectively the same as that in the Commonwealth legislation considered in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 ; (1995) 183 CLR 245. However, this circumstance rather tends to support a conclusion that the Tribunal is a court of State. At a federal level, a purported conferral of judicial power on a body which is not a court in the federal sense, i.e. one constituted by judges appointed until age 70 under s 72 of the Constitution , will be invalid because the separation of powers, mandated at a federal level, has been breached. But this separation of powers is not applicable at a State level and a "court of a State" has no particular constitutional tenure qualification (although, as will be seen, the degree of security is relevant). The fact that orders of the Tribunal can be enforced by the same machinery as orders of the Supreme Court without the need for any intermediate permission or authorisation confirms the position of the Tribunal as part of the judicial system of the State of Tasmania.
Case: Ell v Alberta [2003] 1 SCR 857 at 874
Outcome: cited
In the case of inferior courts, less stringent conditions are necessary in order to satisfy security of tenure: Ell v Alberta [2003] 1 SCR 857 at 874 (Supreme Court of Canada), cited in Bradley at [63]. As Major J, in giving the judgment of the Supreme Court, went on to say (at 875): "The essence of security of tenure is that members of a tribunal be free from arbitrary or discretionary removal from office."
Case: Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40 ; (1962) 108 CLR 372
Outcome: cited
The second respondent relied on Henderson , but I am inclined to agree with the applicants that it has little relevance to the issue of the present case now under consideration, although it will need to be considered later. Mr Henderson owned a house which he leased to the Defence Housing Authority, a Commonwealth body. He sought the Authority's permission to inspect the premises and provision of a key for that purpose. This seemingly humdrum event provoked massive constitutional litigation. Mr Henderson asked for orders from the New South Wales Residential Tenancies Tribunal, a body established under the Residential Tenancies Act 1987 (NSW). A majority of the High Court held that the matters dealt with by the State Act did not fall within the Commonwealth's exclusive powers under s 52(ii) of the Constitution , that the State Act was not inconsistent with the Commonwealth legislation establishing the Authority, and that the principle in Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40 ; (1962) 108 CLR 372 did not prevent the valid operation of the State Act in the circumstances. 79 As a fourth alternative, the Commonwealth in Henderson argued that s 64 of the Judiciary Act did not operate to subject it to the orders sought under the State Act. Section 64 provides that in "any suit" to which the Commonwealth or a State is a party, the rights of parties shall be as nearly the same as in a suit between subject and subject. (There appears to be a misprint at 190 CLR, 429 where the arguments are summarised; "invalid" should be "valid".) While the Commonwealth argued that "suit" in s 64 refers to a suit "in a court properly invested with federal jurisdiction" (at 417), it seems the State of New South Wales did not assert the contrary. Its counsel (at 417) accepted there was no "suit in federal jurisdiction", as did Mr Henderson's (noted by Gummow J at 474). It was not necessary to decide the s 64 point.
Case: Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31] , [39]
Outcome: discussed
There have been decisions of the Victorian Civil and Administrative Tribunal some of which hold, and others of which deny, that that body is a court. Recently Judge O'Connor of the Appeal Panel of the New South Wales Administrative Decisions Tribunal held that that body was a "court" both in the "general sense" and "in the Judiciary Act sense": Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 at [31] , [39]. His Honour analysed in detail the decision in Orellana-Fuentes . He observed at [31] that the Court of Appeal had taken a "balance sheet approach", comparing conventional attributes of a court in the Australian system with elements in the structure that deviated from the conventional attributes, many of which were plainly of a non-judicial character and did not connote the level of independence expected of a court. He found at [43] that the key factors which tipped the balance were the "significant administrative and non-judicial attributes". These are discussed in the judgement of Ipp JA in Orellana-Fuentes at [44]-[51] and notably included the conciliation function of Arbitrators, who were members of the Commission (and appointed by the Commission's President, in itself something "foreign to the notion of a court": [42]) and the reference of medical disputes to "approved medical specialists". Comparable features were not present in the body under consideration in Radio 2UE , nor are they present in the Tribunal. Indeed a feature of the Anti-Discrimination Act is the conferral of conciliation functions on the Commissioner, rather than the Tribunal, whose role, undoubtedly a judicial one, comes into play after conciliation has failed.
Case: Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2 ; (1968) 117 CLR 253 at 258-259
Outcome: cited
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.
Case: Botany Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464
Outcome: cited
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.
Case: Victoria v Commonwealth (The Kakariki) [1937] HCA 82 ; (1937) 58 CLR 618 at 630-631
Outcome: cited
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.
Case: APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 219 ALR 403 at [41] - [45]
Outcome: cited
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. 97 The present case is the polar opposite of the kind of situation dealt with in Australian Mutual Provident Society v Goulden [1986] HCA 24 ; (1986) 160 CLR 330, discussed in APLA at [42]-[43]. In Goulden the High Court held that the Life Insurance Act 1945 (Cth) made detailed provision for supervising and regulating the statutory funds of life insurers, including the classification of risks and the setting of premiums. It would "alter, impair or detract from" the Commonwealth scheme if a registered life company were prevented by State anti-discrimination legislation from classifying different risks differently or for setting different premiums for different risks. In the present case, there is no intention manifested by the Air Force Act or the Regulations to create a scheme to deal exclusively within the AAFC with discriminatory conduct involving cadets. As was submitted by the second respondent, the Manual , far from being a comprehensive code, is predicated on the continuing operation and availability of State legal regimes as part of a bed of underlying law.
Case: Commonwealth v Western Australia (1999) 196 CLR 302 at [55]
Outcome: cited
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.
Case: Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 465-466
Outcome: cited
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.
Case: Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483
Outcome: cited
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.
Case: The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34 ; (1977) 137 CLR 545 at 563
Outcome: applied
In The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34 ; (1977) 137 CLR 545 at 563 Mason J said: "...a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with the Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law." 95 The present case, in my opinion, is an example of the principle of which Mason J speaks. The applicants' focus on s 8(9) of the Air Force Act draws particular attention to the Manual , issued by the Chief of Air Force in the course of exercising his statutory power and duty to administer the AAFC. The exercise of that power and duty is of course subject, amongst other things, to the Cadet Forces Regulations . But the Regulations themselves, relevantly for present purposes, do not go beyond the specific grounds available for discharge and the procedure to be followed in relation thereto. Plainly the legislators, including those who made the Regulations , contemplated that the vast bulk of other administrative provisions essential for the conduct of the AAFC would be left to the Chief of Air Force in the exercise of his power and duty under s 8(9). 96 The Manual , as has been seen, is replete with express references to State authorities and State laws (and also Commonwealth authorities, the Ombudsman and the Human Rights and Equal Opportunity Commission, entirely unconnected with the Air Force). This is hardly surprising. Cadets are not members of the Australian Defence Force. Although they engage in activities and training of a military kind, they do not undertake the obligations and restrictions of military life. Since cadets may be thirteen or even younger, children in the most literal sense, the AAFC is, as is said in Ch 19 par 6 of the Manual, in loco parentis with respect to those who are minors. Discrimination, sexual harassment and like conduct have only become the subject of legislative attention in the last few decades. It can give rise to difficult and delicate problems, especially where children and young people are concerned in activities with older instructors. It is not an area in which the military is perceived to have any special expertise.