Issue: June 2022
Access the decision: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16.
The respondent made a complaint to the Tasmanian Anti-Discrimination Tribunal (the Tribunal) under State discrimination legislation.
In its 'defence', the appellant asserted that the relevant State legislation was inoperative by reason of s. 109 of the Constitution, being inconsistent with the Disability Discrimination Act 1992 (Cth). The Full Court of the Supreme Court of Tasmania held that the Tribunal had jurisdiction to resolve the complaint, including the constitutional defence, because that defence would not succeed.
On appeal to the High Court, the appellant submitted that the constitutional implication arising from Burns v Corbett (that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of a State adjudicative authority with respect to any matter meeting the descriptions in ss. 75 and 76 of the Constitution) commands tribunals to dismiss claims involving federal issues that are not colourable, without any assessment of their merits.
The High Court held that:
the Tribunal was exercising judicial power when dealing with the discrimination complaint and it had an implied judicial power, and a judicially enforceable duty, to assess its own jurisdiction, including by forming a non-binding opinion as to whether determination of the complaint, including the inconsistency defence, would require it to determine a 'matter' within the meaning of s. 76(i) of the Constitution.
the raising of a s. 109 inconsistency defence to a discrimination claim, in determining which the Tribunal would exercise judicial power, had the effect that the whole of the controversy between the parties arose in federal jurisdiction, so as to be beyond the adjudicative authority of the Tribunal (which had previously been held not to be a court of a State).
The fact that the inconsistency defence lacked merit did not affect this outcome. The majority of the High Court held that issues meeting the descriptions in s. 76(i) and (ii), where genuinely raised, will involve a 'matter', even if they are doomed to fail, unless they amount to 'nonsense' or are incomprehensible.
Access the decision: Ruddick v Commonwealth [2022] HCA 9.
The Liberal Democratic Party (the LDP) challenged the validity of amendments to the Commonwealth Electoral Act 1918 ("the Act") which would prevent it from being registered as such, because its name contains a word (liberal) that another registered party ("the parent party", in this case, the Liberal Party) had used first. The amendments were said by the Commonwealth to have been brought in to address voter confusion caused by the similarity between the names of parties at the 2013 federal election for Senate in NSW.
Gordon, Edelman and Gleeson JJ (with whom Steward J agreed) upheld the validity of the impugned provisions on the following bases: the purpose of the impugned provisions was to reduce voter confusion, as indicated in the second reading speech: They did not accept the plaintiff's submission that the "true purpose" of the provisions was to reduce competition between the major and minor parties; existing provisions in the Act to deal with confusion had proved to be insufficient: the LDP had conceded that such confusion arose in the 2013 Senate election in NSW; the plaintiff's challenge failed at the threshold because he did not establish any burden on electoral choice or the freedom of political communication; even if there were some burden, "the net effect would still be an enhancement of electoral choice and the quality of communication" by reason of the reduced confusion; the plaintiff's case in relation to the implied freedom failed at the threshold for another reason, ie, because there was no right to be included on the ballot paper independently of the Act, such that the implied freedom was not engaged.
The matter was very finely balanced. Kiefel CJ, Keane and Gageler JJ dissented. There was a difference of opinion as to the adequacy of the pre-existing provisions which appears to have stemmed from a difference of opinion in what caused the confusion at the 2013 Senate election.
If you have any questions about the contents of this newsletter, please contact john.mcdonnell@cso.nsw.gov.au.
09 Jun 2023