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Constitutional law – Chapter III

In Citta Hobart & Another v Cawthorn [2022] HCA 16 (4 May 2022), the High Court was required to determine whether the Tasmanian Anti-Discrimination Tribunal (tribunal) had jurisdiction to hear a complaint under the Anti-Discrimination Act 1998 (Tas) (state Act), in circumstances where there was a dispute about whether the state Act was inconsistent with the Disability Discrimination Act 1992 (Cth) (Commonwealth Act).

The appellants (developers) were the owners and developers of land for the ‘Parliament Square’ development in Tasmania. Mr Cawthorn has paraplegia and relies on a wheelchair for mobility. Mr Cawthorn brought a complaint against the developers in which he accused the developers of (direct and indirect) discrimination under the state Act because one of the entrances to the development was only accessible by stairs.

The developers argued that they had complied with the Commonwealth Act. And the developers argued that the Commonwealth Act covered the field in respect of disability discrimination standards, so s109 of the Constitution rendered the state Act inoperative to the extent that it imposed any additional duties on them (constitutional defence).

The developers argued that their constitutional defence meant that the complaint involved a matter of a kind identified in s76(i) and s76(ii) of the Constitution – matters which can only be determined by the High Court or a federal or state court.

The tribunal held that it lacked jurisdiction to hear the complaint because it involved a matter arising under the Constitution. Mr Cawthorn successfully appealed to the Full Court of the Supreme Court of Tasmania.

The Full Court (Blow CJ, Wood and Estcourt JJ) considered the constitutional defence on its merits and rejected it. The Full Court then returned the matter back to the tribunal to determine Mr Cawthorn’s complaint.

The developers appealed to the High Court which unanimously allowed the appeal. A joint judgment was delivered by Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ (the plurality). Edelman J gave a separate judgment.

The High Court first addressed the question raised by an intervenor – the Australian Human Rights Commission – whether the tribunal was exercising judicial power in determining Mr Cawthorn’s complaint.

As Edelman J explains, at [53], if the tribunal was not exercising judicial power, then the tribunal would not have been exercising judicial power on any of the matters enumerated in ss75 and 76. But the High Court unanimously held that the tribunal exercises judicial power, referring to the fact that the tribunal’s orders are immediately binding on the parties: plurality at [12]-[16] and Edelman J at [53]-[57].

The High Court also unanimously held that, when the issue of jurisdiction arose, the tribunal could and should determine whether it has jurisdiction to determine the complaint: plurality at [22]-[26] and Edelman J at [62]-[64].

The plurality described this (at [23]) as being the “jurisdiction to decide its own jurisdiction”. But Edelman J considered (at [62]) that a tribunal, in considering whether it had jurisdiction was not exercising jurisdiction but, instead, was “taking a necessary step anterior to the exercise of any judicial power”.

In determining whether a proceeding involved a matter arising under the Constitution, the plurality considered (at [35]) that it was enough if the matter “was genuinely raised and not incapable on its face of legal argument”.

Edelman J expressed the test somewhat differently (at [73]) as not being “manifestly hopeless”. Both the plurality, at [10], and Edelman J, at [79], considered that the developers’ constitutional defence met the required test.

And both the plurality, at [33], and Edelman J, at [85], considered that the constitutional defence could not have been determined by a court separately – the complaint was (to use the plurality’s words) a “single justiciable controversy”. 

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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