Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349 (11 December 2006)

Last Updated: 13 December 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349



FILE NUMBER(S):
40469 of 2006

HEARING DATE(S): 27 November 2006

DECISION DATE: 11/12/2006

PARTIES:
Attorney-General of New South Wales (Applicant)
2UE Pty Ltd (First Opponent); John Laws (Second Opponent); Steve Price (Third Opponent); Gary Burns (Fourth Opponent)


JUDGMENT OF: Spigelman CJ Hodgson JA Ipp JA

LOWER COURT JURISDICTION: Appeal Panel of the Administrative Decisions Tribunal of New South Wales

LOWER COURT FILE NUMBER(S): 049049

LOWER COURT JUDICIAL OFFICER: O’Connor DCJ

COUNSEL:
M. Sexton SC, J. Renwick (Applicant)
G. Reynolds SC, J. Hewitt, P. Kulevski (First, Second & Third Opponent); C. Ronalds SC (Fourth Oppenent)


SOLICITORS:
H. El-Hage, NSW Crown Solicitor (Claiment)
A. Ball, Corrs Chambers Westgarth (First, Second & Third Opponent)
S. Moran, Public Interest Advocacy Centre (Fourth Opponent)


CATCHWORDS:
ADMINSTRATIVE LAW – Particular Tribunals – Powers of ADT to interpret provisions in conformity with the Commonwealth Constitution – Administrative Decisions Appeal Act, s115(1) – Interpretation Act, s31(1)
CONSTITUTIONAL LAW – COMMONWEALTH – Effect of registration scheme which gives judicial force to a State tribunal decision containing consideration of the Commonwealth Constitution – Impermissible exercise of Federal jurisdiction – Constitution, Chapter III

LEGISLATION CITED:
Acts Interpretation Act 1901 (Cth), s15A
Administrative Decisions Tribunal Act 1997, ss 82,113,115,118,119,122
Anti-Discrimination Act 1977, ss 49ZT,108,110,111,114
Interpretation Act 1987, s31
Judiciary Act 1903 (Cth), ss 39,78B
The Constitution (Cth), cl 5, ss 71,75,76,77

DECISION:
A declaration that the Appeal Panel of the Administrative Decisions Tribunal has no jurisdiction to determine whether s49ZT of the Anti-Discrimination Act 1977 (NSW), should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters.


JUDGMENT:

- 34 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40469/06

SPIGELMAN CJ

HODGSON JA

IPP JA

Monday 11 December 2006

ATTORNEY GENERAL v 2UE SYDNEY PTY LTD & ORS

Facts

The Fourth Respondent, Mr Burns, made a complaint of homosexual vilification to the Equal Opportunity Division of the NSW Administrative Decisions Tribunal (ADT) about comments made by radio presenters John Laws and Steve Price, which were broadcast by radio station 2UE. The comments related to a gay couple who appeared on a television program.

The ADT upheld the complaint under s 49ZT of the Anti-Discrimination Act 1977 (NSW). The Tribunal ordered the First Opponent, 2UE, to broadcast an apology read by the Second and Third Opponents, Mr Laws and Mr Price. It also ordered that Mr Burns’ costs be paid.

The First, Second and Third Opponent appealed the decision to the Appeals Panel of the ADT. As part of that appeal, they argued that s 49ZT was invalid, or should be read down, because it contravened the Constitutional immunity for political speech. The NSW Attorney General intervened, arguing that the Appeal Panel did not have the jurisdiction to hear or determine a question arising under the Commonwealth Constitution or involving its interpretation. The Appeal Panel rejected the Attorney’s arguments, finding that the ADT did have the power to consider any question of law relating to its jurisdiction. The Attorney applied to the NSW Court of Appeal for orders determining the jurisdictional issue.

Held
Powers of Interpretation
Per Spigelman CJ, Hodgson and Ipp JJA agreeing

1. The Appeal Panel is required by s115(1) of the Administrative Decisions Tribunal Act and s31(1) of the Interpretation Act to have regard to any relevant Constitutional limits in construing legislation. The Tribunal is competent to consider the Constitutional immunity for political speech and interpret the relevant section so as to conform. It cannot, however, definitively determine a Constitutional question. [30], [31], [32], [37], [98], [100], [104]. [105]

Re Adams and Tax Agents’ Board (1976) 12 ALR 239 applied.

Sources of Jurisdiction
Per Spigelman CJ, Ipp JA agreeing

1. Covering clause 5 of the Constitution is not a source of Federal jurisdiction for State tribunals. Even if it were the case that covering cl 5 ever conferred jurisdiction on State courts and judges, it did not confer Federal jurisdiction on non-judicial bodies as this would be contrary to the separation of judicial powers. [46], [51], [52], [53]

Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 and Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243 considered.

Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 and Moorgate Tobacco Limited v Phillip Morris Limited [1980] HCA 32; (1980) 145 CLR 457 referred to.

2. The restriction on a Tribunal exercising Federal jurisdiction, in the sense of the judicial power of the Commonwealth, arises from Ch III of the Constitution rather than from s39(2) of the Judiciary Act 1903 (Cth). A State Parliament cannot invest a court or tribunal with Federal jurisdiction. [54], [55]

The Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298 applied.

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 referred to.

The Tribunal’s authority
Per Spigelman CJ, Ipp JA agreeing

1. A Commonwealth tribunal may validly consider issues arising under the Commonwealth Constitution. However, the presence of a scheme which gives judicial force to a tribunal decision upon mere registration, converts the tribunal’s otherwise permissible actions into an impermissible exercise of Federal jurisdiction. A State tribunal is in no different position to a Commonwealth tribunal in this respect. [70], [71], [75], [76], [80]

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 considered and applied.

Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1908) 8 CLR 330, Kable v Director of Public Prosecutions for NSW [1996] HCA 24; (1996) 189 CLR 51, H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547, Attorney-General for the Commonwealth v Breckler [1999] HCA 28; (1998) 197 CLR 83 referred to.

2. It makes no difference that the Administrative Decisions Tribunal Act allows a party before the Appeal Panel to appeal to the Supreme Court on any question of law or to seek review. [77], [78], [79]

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 applied.

Per Hodgson JA, Ipp JA agreeing

3. When a tribunal decision is given the automatic effect of a court order, there is an impermissible exercise of Federal jurisdiction. [109], [111], [114]

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 applied.

4. It may be that the registration provisions are invalid but this was not argued. [115]-[116]

Orders

A declaration that the Appeal Panel of the Administrative Decisions Tribunal has no jurisdiction to determine whether s49ZT of the Anti-Discrimination Act 1977 (NSW), should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40469/06

SPIGELMAN CJ

HODGSON JA

IPP JA

Monday 11 December 2006

ATTORNEY GENERAL v 2UE SYDNEY PTY LTD & ORS

Judgment

1 SPIGELMAN CJ: The Attorney General moves the Court for a declaration that the Administrative Decisions Tribunal of New South Wales (“the Tribunal”) has no jurisdiction to, and cannot hear and determine, a question arising under the Commonwealth Constitution or involving its interpretation. He seeks an order prohibiting the Appeal Panel of the Tribunal from proceeding to hear or determine Constitutional proceedings before it in which the First, Second and Third Opponents (“the Opponents”) appeal from a decision in favour of the Fourth Opponent upholding a complaint to the Tribunal that the Opponents have acted in contravention of s49ZT of the Anti-Discrimination Act 1977.

2 The Attorney gave notice under s78B of the Judiciary Act 1903 (Cth) that a matter arising under the Constitution or involving its interpretation had arisen in the present proceedings in the following terms:

“Whether the Administrative Decisions Tribunal of New South Wales ... is able to hear and determine or purport to hear or determine a question arising under the Commonwealth Constitution or involving its interpretation.”


Background Facts

3 The Tribunal made a decision that the complaint by the Fourth Opponent (Mr Burns) had been made out and, specifically, found that the Second and Third Opponents (Mr Laws and Mr Price) had engaged in vilification in breach of s49ZT(1) of the Anti-Discrimination Act, set out below, for which conduct the First Opponent (Radio 2UE) was jointly and severally liable. (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267.)

4 In a subsequent decision on remedy the Tribunal decided that:

(a) Mr Laws and Mr Price are required to read and broadcast an apology as directed, which Radio 2UE would also be required to publish; and

(b) Each of them was liable to pay Mr Burns’ reasonable costs as assessed or agreed.

5 The Opponents appealed to the Appeal Panel of the Tribunal. The Attorney intervened in the Appeal Panel proceedings. By reason of that intervention the President of the Tribunal (O’Connor DCJ) determined two preliminary questions:

(i) Whether the Tribunal is a court for the purposes of s39 of the Judiciary Act 1903 (Cth) and, accordingly, is competent to decide matters arising under or involving the interpretation of a Commonwealth Constitution.

(ii) Alternatively, whether the Tribunal is competent to consider any question of law relating to its jurisdiction.

6 O’Connor DCJ decided both questions in favour of the Opponents. (Radio 2UE Sydney Pty Ltd & Ors v Burns (EOD) [2005] NSWADTAP 69.)

7 The first basis upon which the learned President found that the Appeal Panel had jurisdiction is inconsistent with the judgment of this Court in Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany’s) [2006] NSWCA 185. Both parties to the application now before the Court accept that the reasoning in that case is determinative of the first basis upon which the President found that the Appeal Panel had jurisdiction. No party made even a formal submission that Skiwing was wrong. Accordingly, the case before the Court is concerned only with the second basis of the President’s conclusion.

8 In a s78B Notice, filed in the proceedings before the Appeal Panel, the Opponents originally identified three constitutional questions:

“2 The questions which arise are as follows:

(a) whether section 49ZT of the Anti-Discrimination Act 1977 (NSW) is constitutionally invalid in that it contravenes the constitutional implication of freedom of communication about government or political matters and, in particular, the two part test described in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1977) 189 CLR 520 at 567 as reinterpreted in Coleman v Power and Ors [2004] HCA 39; 209 ALR 182.

(b) whether section 49ZT of the Anti-Discrimination Act 1977 (NSW), in accordance with section 31 of the Interpretation Act 1987 (NSW), should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters; and

(c) whether, regardless of whether any statutory provision invests the Appeal Panel with jurisdiction in matters arising under the Constitution or involving its interpretation, the Constitution as a whole, covering clause 5 and the rule of law (which is implicit in the Constitution) oblige the Appeal Panel to consider and determine these questions.”

9 The Opponents no longer rely on (a). The submissions to this Court state that they will not contend that the Appeal Panel can hold that s49ZT of the Anti-Discrimination Act is invalid. The submissions state that their “only argument” is that the Appeal Panel should adopt a construction of s49ZT which conforms to the requirements of the implied constitutional freedom determined in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 esp at 567.

The Decision of the President

10 O’Connor DCJ dealt separately with the two matters raised as par (b) and par (c) of the Opponent’s Notice of Contention in the Appeal Panel. His Honour first dealt with the general proposition that the Panel had jurisdiction to determine questions of law by means of the interpretation of the legislation with which it was concerned and secondly, with the implications of covering cl 5 of the Constitution and the “rule of law” implicit in the Constitution.

11 His Honour concluded, on the basis of each of the matters which he had considered:

“[108] My conclusion is that the Tribunal must address any challenge to its jurisdiction, whatever the nature of the issue.”

12 With respect to the submission based on interpreting the relevant legislation his Honour said:

“[77] ... The Appellants argue that the responsibility to determine constitutional questions is a natural part of the task of any body called upon to determine matters according to law. The ‘law’ involves the whole of the law. Constitutional questions cannot be compartmentalised into a ‘no go’ zone. They form part of the fabric of the law.

[78] The Appellants agree with the Attorney that such a determination coming from an administrative body would not be definitive or final. Further, the Appellants argue that the constitutional question in these proceedings does go to the Tribunal’s jurisdiction, since its power to make orders when it finds that a complaint is substantiated depends on the validity of s 49ZT of the Anti-Discrimination Act.”

13 His Honour went on to consider the analysis of analogous issues by Brennan J in Re Adams and Tax Agents’ Board (1976) 12 ALR 239, to which I will refer further below.

14 His Honour concluded:

“[82] I agree with the submissions ... for the appellants that Brennan J’s dicta read as a whole do not go so far as to suggest that a tribunal that is not a court cannot consider a constitutional question (the proposition advanced by the Attorney) but only state that any conclusion reached by such a tribunal on such a question would not be definitive or final.”

15 His Honour then referred to his own earlier analysis of similar issues in Doyle v Commissioner of Police [1999] NSWADT 84 where his Honour had considered the Federal authorities in the context of a challenge to the validity of a subordinate instrument. In Doyle, his Honour had concluded, in part of the passage which his Honour reaffirmed in the decision before this Court, as follows:

“[32] Like the administrator making the primary decision, a review tribunal must satisfy itself that it is seized of a matter over which it has jurisdiction. In instances where the decision is made having regard to criteria contained in subordinate legislation, the tribunal would (like an administrator) ordinarily proceed on the basis that the subordinate legislation has been regularly made and is intra vires the governing statute.”

16 His Honour further concluded with respect to this aspect of the Opponents’ case:

“[95] ... A body charged with upholding the law (especially a body which is constituted on an independent basis with an express charter to determine questions according to law) should not be deprived of the capacity to countenance any question of law that is raised before it.”

17 With respect to the alternative submission based on covering cl 5 of the Constitution, his Honour concluded:

“[106] ... the power to deal with questions of constitutionality derives from the fact that those questions are simply a species of questions of law, and the fundamental obligation of courts and tribunals is to uphold the law.”

Relevant Statutory Provisions

18 The decision of the Tribunal under appeal to the Appeal Panel is a finding which upheld the complaint for a contravention of s49ZT of the Anti-Discrimination Act 1977 which provides:

“49ZT(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.”

19 The decision of the Tribunal with respect to remedy was to make an order for publication of an apology, as outlined above, and also an order for costs. The legislative provisions with respect to the two kinds of order differ.

20 Section 108 of the Anti-Discrimination Act 1977 relevantly provides:

“108(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

...

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

...”

21 The enforcement of an order under s108(2)(d) is provided for in s111 and 114:

“111 A person must not refuse or neglect, or for any other reason fail to obey or comply with, an order under section 108 (2) (b), (c), (d) or (e), or an interim order, of the Tribunal.

Maximum penalty: 50 penalty units, in the case of a corporation, or 10 penalty units in any other case.”

“114(1) This section applies to an order, or part of an order, of the Tribunal other than an order, or part of an order, for the recovery of an amount ordered to be paid by the Tribunal or a civil or other penalty ordered to be paid by the Tribunal.

(2) For the purpose of enforcing an order, or part of an order, to which this section applies, the Registrar may certify the making of the order, or part, and its terms.

(3) A certificate of the Registrar under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court.

(4) Nothing in this section limits or otherwise affects section 82 or 82A of the Administrative Decisions Tribunal Act 1997.”

22 With respect to the order of the Tribunal for payment of costs, s110 of the Anti-Discrimination Act provides:

“110(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.

(2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.”

23 The provision for enforcement of an order for costs is found in the Administrative Decisions Tribunal Act 1997 (the “ADT Act”) which provides:

“82(1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.

(2) A certificate given under this section must identify the person liable to pay the certified amount.

(3) A certificate of the Registrar that:

(a) is given under this section, and

(b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,

operates as such a judgment.

(4) A party to proceedings in respect of which an amount has been certified by the Registrar under this section may apply to the Tribunal for a review of the decision to certify that amount.”

24 It is unnecessary to repeat the analysis of the ADT Act with respect to the nature and status of the Tribunal from my judgment in Skiwing supra esp at [25]-[27].

25 The relevant provisions of the ADT Act with respect to an “appealable decision”, which the Tribunal’s judgment and orders plainly are, are as follows:

“113(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.”

“114(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.”

“115(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.”

26 With respect to the issue of interpretation, the Opponents rely on s31 of the Interpretation Act 1987, which provides:

“31(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.”

27 The equivalent section in the Acts Interpretation Act 1901 (Cth) is s15A, which has been considered in a number of cases. The following observations of Brennan J from Re Dingjan; ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 339 are, in my opinion, applicable to s31:

“Section 15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied: first, that the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of the law and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law.”

(See most recently New South Wales v The Commonwealth [2006] HCA 52 at [595]- [598].)

28 Neither the Appeal Panel, nor this Court, have heard submissions on the way in which s31 may apply to s49ZT of the Anti-Discrimination Act, if at all. The Attorney asks this Court for an order which would prevent the Appeal Panel determining any such issue.

Powers of Interpretation

29 The Tribunal and the Appeal Panel are clearly administrative bodies with statutory powers the exercise of which have legal consequences. The decision of, relevantly, the Appeal Panel, will affect the rights or duties of individuals whose conduct falls within the jurisdiction conferred upon the Panel by statute. In the course of exercising that jurisdiction the Tribunal is obliged to act upon statutory formulations and in that sense is required to engage in a process of legal interpretation.

30 In order to confer such a function, it is not necessary to have express words but, as it happens, s115(1)(b) expressly requires an Appeal Panel to have regard to “any applicable written or unwritten law”. That provision encompasses an obligation to have regard to s49ZT of the Anti-Discrimination Act, s31 of the Interpretation Act, covering cl 5 of the Constitution of the Commonwealth and the “unwritten law”, constituted by the Constitutional immunity with respect to political speech.

31 But for any disentitling provision, whether statutory or constitutional, I do not doubt that it is open to the Tribunal to approach the task of interpretation with a view to bringing the operation of s49ZT into conformity with the Constitutional immunity, assuming there to be any disconformity. The issue before the Court is whether there is any such disentitling provision in the Commonwealth Constitution or in a Commonwealth statute.

32 The nature of the Tribunal’s interpretative function, like that of any other administrator with statutory powers the exercise of which have legal consequences, is such that in the words of O’Connor DCJ as quoted above, it could not lead to a decision on a Constitutional question which was “definitive or final”.

33 The Opponents, like his Honour, accepted the general approach of Brennan J, when sitting as President of the Administrative Appeals Tribunal, in Re Adams and the Tax Agents’ Board supra at 241, when his Honour said:

“It follows that neither the Tribunal nor the Board can give a definitive answer to the question of Constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. It is incapable of adding to or subtracting from any authority, or purported authority, conferred by the challenged statute. It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative body.”

34 Furthermore, as Brennan J said at 242:

“An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal affect.”

35 It is unnecessary to set out the balance of his Honour’s consideration of the issue of whether or not an administrative decision-maker can take into account Constitutional challenges to the validity of legislation. His Honour at 243-244 expressly rejects the case law of the United States Supreme Court which denies an administrative officer any such function. Brennan J proceeds to indicate that an administrative officer should only reluctantly act on any such basis, but appears to act on the assumption that it is permissible when he says at 245:

“If it be allowed that there is, in Australian legal theory, a competence in an administrative body to consider and form an opinion upon the Constitutional validity of a statute in order that that body may act in accordance with law, the competence to form the opinion and to be informed on the question of Constitutional validity should not be treated as a jurisdiction invested in the administrative body to reach a conclusion having legal effect. It is merely a means which the administrative body may adopt in moulding its conduct to accord with the law.”

36 I note that his Honour did not consider the effect of the directive of the Commonwealth Parliament in s15A of the Acts Interpretation Act to which I have referred.

37 His Honour’s reasons conclude with a finding that the Administrative Appeals Tribunal, of which his Honour was sitting as President, could not grant relief on the basis that the relevant statute was Constitutionally invalid. As I have noted above, the Opponents in the present case do not contend for any such finding. Their submissions are directed to the ability of the Appeal Panel to consider the Constitutional immunity and to interpret the relevant section so as to conform with that immunity. Brennan J’s reasoning in Adams and the Tax Agents’ Board appears to me to affirm the ability of the Tribunal to pursue such a course, albeit with some hesitation.

38 The issue before this Court is whether or not Chapter III of the Constitution and/or s39 of the Judiciary Act have the effect that the Appeal Panel is precluded from considering the Constitutional immunity for political speech in the course of interpreting the Anti-Discrimination Act, in the light of the directive of the New South Wales Parliament contained in s31 of the Interpretation Act.

Sources of Jurisdiction

39 The reasons of O’Connor DCJ and the submissions of Mr G Reynolds SC, who appeared for the Opponents in this Court, relied on covering cl 5 of the Commonwealth Constitution as a source of jurisdiction. Mr Reynolds submitted that even if covering cl 5 was no longer a source of jurisdiction for State courts, it remained a source of jurisdiction for State tribunals. Mr Reynolds’ reliance on the “rule of law” as implicit in the Constitution raises no different considerations to those which arise under covering cl 5.

40 Covering cl 5 provides:

“5 This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State ...”

41 The High Court has given consideration to the effect of this clause during the period between the coming into force of the Commonwealth Constitution and the creation of the High Court. Upon the latter event original jurisdiction under s75 of the Constitution vested in that Court and Parliament was empowered to confer additional jurisdiction on that Court by s76.

42 Relevantly, for present purposes, s76(i) of the Constitution empowers the Parliament to make laws conferring jurisdiction on the High Court with respect to matters “arising under this Constitution or involving its interpretation”. That power was exercised by s38 of the Judiciary Act, 1903.

43 By the enactment of the Judiciary Act Parliament exercised the power contained in s77 which states, relevantly:

“77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

...

(ii) defining the extent to which the jurisdiction of any Federal Court should be exclusive of that which belongs to or is invested in the courts of the States;

(iii) investing any court of a State with Federal jurisdiction.”

44 Pursuant to the power in s77(ii) the Parliament enacted s39(1) of the Judiciary Act. Pursuant to the power contained in s77(iii) the Parliament enacted s39(2) of the Judiciary Act. Those subsections relevantly provide:

“39(1) The jurisdiction in the High Court, so far as it is not exclusive of the jurisdiction of any court of the State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States except as provided in this section.

(2) Several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise, be invested with Federal jurisdiction, in all matter in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it except as provided ...”

45 Section 39(2) contains reference to exceptions and to conditions and restrictions which it is unnecessary to set out.

46 It is difficult to interpret covering cl 5 as any kind of conferral of jurisdiction. It is not expressed in any such terms. The express reference to “courts, judges” makes it clear that the binding force applies to all persons who answer that description. It also extends to all administrative officers and tribunals by reason of the extension of covering cl 5 to “people”.

47 By s71 of the Constitution the judicial power of the Commonwealth is vested in such courts as the Parliament invests with Federal jurisdiction, relevantly, for present purposes, pursuant to s77(iii).

48 It has never been necessary for there to be an authoritative determination of the question of whether covering cl 5 conferred something of the character of “federal jurisdiction”, a concept which appears in s71 and s77. The joint judgment in Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 expressly left open the question of whether State courts in this interim period were exercising something that could be called “federal jurisdiction” (see at 1137). However, the reasoning of Isaacs J at 1142-1143 appears to determine that, prior to the Judiciary Act, the State courts exercised only State jurisdiction. On the other hand in Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243, whilst the joint judgment again left the matter open, Higgins J at 255 referred to covering cl 5 as the source of the relevant “jurisdiction”. (See also Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 394 per Windeyer J.)

49 It is now well established that the effect of s39(1) of the Judiciary Act was to remove from State Courts any jurisdiction with respect to, relevantly, matters arising under or interpreting the Constitution, whether that jurisdiction was to be found in State jurisdiction or Federal jurisdiction. However, the subsequent judgments do not determine the nature of the “jurisdiction” exercised by State courts before the Judiciary Act. (See Felton v Mulligan supra at 411-412 per Walsh J, approved by the joint judgment in Moorgate Tobacco Limited v Phillip Morris Limited [1980] HCA 32; (1980) 145 CLR 457 at 479 and at 471 per Gibbs J.)

50 Whatever may have once been the case, the federal jurisdiction of State courts is now based on a different source (Baxter v Commissioner of Taxation supra at 1137 and 11423). Section 39(2) of the Judiciary Act is now, as the Attorney submitted, the sole source of the jurisdiction of State courts to decide matters arising under the Constitution or involving its interpretation.

51 The issue that has arisen in the present case is whether covering cl 5 has any continued effect with respect to decision-makers who are not State courts. In my opinion, it has no such effect.

52 First, even if it could be argued that covering cl 5 conferred on “courts, judges” and, relevantly, quasi-judicial tribunals, something that was accurately described as “jurisdiction”, that could only be true on an interim basis pending the exercise by the Parliament of the power in s77(ii) to exclude such jurisdiction, a power which has long since been exercised in s39(2) of the Judiciary Act. This role of covering cl 5 is now spent, with only the theoretical possibility of a revival if the relevant provisions of the Judiciary Act were repealed.

53 Furthermore, cl 5 operates as a covering clause for a Constitution which, it has now been firmly established by half a century of authoritative judicial statement, contains a strict separation of the judicial power. Even if it could be said that covering cl 5, in its reference to matters being “binding” on “courts” and “judges”, was ever used in the sense of conferring jurisdiction, the same could not be said of the reference to the Constitution being “binding on ... people”.

54 In the present case the Attorney placed considerable reliance on the effect of s39(1) of the Judiciary Act as the implementation of the power conferred upon the Parliament by s77(ii) of the Constitution. There is no doubt that s39(1) has the effect of removing the jurisdiction of courts of the States with respect to, relevantly, matters arising under or involving the interpretation of the Constitution. That jurisdiction is now found only as it is specifically reconferred by s39(2). However, the reliance placed on this section by the learned Solicitor-General was, in my opinion, misconceived.

55 Section 39(1) removes jurisdiction from courts. It does not speak in any way to the exercise of powers by tribunals who have what is often conveniently described as a “jurisdiction”, but which word does not signify the same kind of power. Federal jurisdiction, in the sense of the exercise of the judicial power of the Commonwealth, cannot be exercised by a tribunal as a manifestation of the Executive arm of Government, whether of the Commonwealth or of a State. That restriction arises by reason of the text and structure of the Constitution, including particularly the strong doctrine of separation of powers arising from Ch III of the Constitution. It does not turn, in my opinion, on s39(2) of the Judiciary Act.

56 A State Parliament cannot confer on a court, let alone on a tribunal, judicial power with respect to any matter referred to in s75 or s76 of the Constitution. As Jacobs J said in The Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298 at 327-328:

“In my opinion the judicial power delineated in Ch. III is exhaustive of the manner in and the extent to which judicial power may be conferred on or exercised by any court in respect of the subject matters set forth in ss. 75 and 76, "matters" in those sections meaning "subject matters". This is so not only in respect of federal courts but also in respect of State courts whether or not they are exercising federal jurisdiction conferred on them under s. 77(iii). In respect of the subject matters set out in ss. 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch. III and if in respect of those matters an investing with federal jurisdiction of a State court does not enable it to perform the particular judicial function, then in respect of those matters the State court cannot under any law exercise that judicial function. Therefore, if in respect of those matters a State court exercising federal jurisdiction cannot give "advisory opinions" it cannot in respect of the same matters give such opinions in exercise of some State jurisdiction. Chapter III of the Constitution is so constructed that the limits of the Commonwealth power to invest State courts with federal jurisdiction with respect to the matters mentioned in ss. 75 and 76 mark out the limits of the judicial power or function which in any case State courts can exercise in respect of those matters. A State thus could not empower one of its courts to give advisory opinions on those subject matters. The court would be exercising judicial power but not a judicial power envisaged by Ch. III and able to be conferred on it by the Commonwealth. It is then no answer to say that the State is conferring a judicial power which the Commonwealth is unable to confer. There is here no residuary State power, because Ch. III is an exhaustive enunciation.”

57 Furthermore, as the joint judgment of the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 said at 179:

“At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd (69):

‘Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.’

The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal.”

The Tribunal’s Authority

58 The primary submission of the Attorney was that if the Tribunal or the Appeal Panel is authorised to consider, even by way of interpretation, the Constitutional freedom then it would be determining the rights of a party “in a binding manner”. This, the Attorney submitted, was impermissible if it involved a matter arising under the Constitution or involving its interpretation.

59 The word “binding” is a word that contains a significant level of ambiguity. Many decisions made in the exercise of statutory powers by administrators have legal consequences, including effects which can accurately be described as “binding”. However, for purposes of the issues that arise in this case, a more precise use of the word “binding” is required.

60 In Australian jurisprudence a frequently cited definition of judicial power is that of Griffiths CJ is Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1908) 8 CLR 330 at 357 where his Honour relevantly said:

“The exercise of this power does not begin until some Tribunal which has power to give a binding and authoritative decision ... is called upon to take action.”

61 In Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 the joint judgment, after referring to this aspect of the definition of judicial power by Griffiths CJ in Huddart Parker v Moorehead, added at 268:

“However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power. A legislative or administrative decision may answer that description. Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law. That is to say, it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion.”

62 The Attorney’s written submissions also drew a distinction between a Tribunal forming a view on jurisdiction, which may involve consideration of the meaning of a statute, on the one hand and “determining any conditions upon the exercise of jurisdiction in a binding manner”. (See par 9.5) The Attorney also submitted that were the Appeal Panel to read down s49ZT it would have the effect of applying the Constitutional immunity to the Tribunal’s orders for an apology and for costs (par 7.8) and this would involve “an actual legal consequence for Mr Burns” (par 9.8).

63 That much can be accepted. Indeed the obverse is also true. Even if the Appeal Panel, after due consideration, upheld the orders of the Tribunal, whether it did so after reading down the terms of s49ZT or after determining that the Constitutional immunity had no effect upon the section, it could still be said that the Appeal Panel was determining the Constitutional issue in a manner binding on the parties.

64 The Attorney drew attention to the provisions for enforcement of the two orders actually made in the present case, namely certification, which upon filing in the Supreme Court operates as a judgment of the Court, under s114 of the Anti-Discrimination Act with respect to the apology order and under s82(3) of the ADT Act with respect to the costs order. I have set out those sections above.

65 The Attorney submitted that this feature of the scheme presently under consideration was indistinguishable from that which was found to be determinative in Brandy supra and, indeed, submitted that the present scheme would operate with “greater finality” (par 7.4). The Attorney submitted that these registration provisions indicate that the Tribunal’s opinions are “binding” in the requisite sense (par 7.6).

66 In his written submissions the Attorney submitted that the provisions for registration do not render those sections invalid, because a strict separation of powers is not required with respect to State courts. (Referring to Kable v Director of Public Prosecutions for NSW [1996] HCA 24; (1996) 189 CLR 51.) Mr Reynolds also embraced this submission. However, this proposition can only support the conferral of State jurisdiction on a tribunal. It cannot support the exercise of federal jurisdiction by a State tribunal.

67 In oral submissions Mr M Sexton SC, the Solicitor-General of New South Wales who appeared for the Attorney, stated that if the Tribunal proceeded to interpret s47ZT in the light of the Constitutional immunity, that would involve the exercise of federal jurisdiction or federal judicial power (T 4 lines 5-11; T11 lines 20-25;T13 lines 20-23). He also submitted that reading down a State statute by reason of the Constitutional immunity would necessarily involve an exercise of Federal jurisdiction or Federal judicial power (T 12 line 40 - T 13 line 5; T 13 lines 20-23; T 13 lines 40-54).

68 Mr Sexton relied on the reasons in Brandy. (See T 13, line 15.) However, he submitted that this was not “conclusive” (T 4 line 18) or “determinative” (T 13 line 17-21). To similar effect, he submitted that although it was not an essential element of his argument that there be a binding consequence, “there is a binding consequence here”. (T 6 lines 37-42; See also T 25-26 and T 31 line 15-38.)

69 The present proceedings turn on whether the consideration by the Appeal Panel of the Constitutional issue which the Opponents seek to agitate constitutes the exercise of judicial power. As Mr Sexton put it in the course of oral submissions, can the Tribunal or the Panel “engage in an attempted exercise of Federal jurisdiction?” (T 3- line 53).

70 I have come to the conclusion that the Attorney’s submissions should be upheld but solely on the basis of the application of the decision in Brandy. The submissions of the Attorney which attempt to place this conclusion on a broader basis, should be rejected. The narrower basis, which relies on the registration provisions, should be upheld.

71 It is well established that the doctrine of separation of powers does not operate strictly in the case of State courts and tribunals. Nevertheless, it is often helpful when deciding such questions in the context of State legislation to first ask the question whether the matter in issue would fail to comply with the stricter requirements of Chapter III in its application to Commonwealth legislation. (See H A Bachrach Pty Ltd v Queensland [1998] HCA 54; 195 CLR 547 at [14].) The reasoning of the two judgments in Brandy make it quite clear that it was only the legislative provision that gave automatic effect to a decision of the Human Rights and Equal Opportunity Commission that was inconsistent with the requirements of Chapter III of the Constitution.

72 As Mason CJ, Brennan and Toohey JJ said at p260:

“A judicial order made by the Federal Court takes effect as an exercise of Commonwealth judicial power, but a determination by the Commission is neither made nor registered in the exercise of judicial power. An exercise of executive power by the Commission and the performance of an administrative function by the registrar of the Federal Court simply cannot create an order which takes effect as an exercise of judicial power; conversely, an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination.”

73 Similarly in the joint judgment of Deane, Dawson, Gaudron and McHugh JJ at 269:

“ ... If it were not for the provisions providing for the registration and enforcement of the Commission’s determinations, it would be plain that the Commission does not exercise judicial power. That is because ... its determination would not be binding or conclusive between any of the parties and would be unenforceable. That situation is, we think, reversed by the registration provisions.”

74 The judgments in Brandy also made it clear that the scheme as it existed before the amendments to the legislation under consideration which did involve a new hearing of the issues by the Federal Court, was not invalid. (See at 263-264 and 270-271.) This position was confirmed by the High Court in Attorney-General for the Commonwealth v Breckler [1999] HCA 28; 197 CLR 83 esp at [42]-[46].

75 In my opinion, a Commonwealth tribunal which performed the same functions as are in issue in the present case and which operated as part of a legislative scheme that did not have the registration provisions could validly do so. However, a scheme which gives judicial force to a Tribunal decision upon mere registration is not valid. It is the presence of such a provision, and only that presence, that converts what would otherwise be a permissible scheme into an exercise of federal jurisdiction which is impermissible. In my opinion a State Tribunal is in no different position.

76 From the perspective of Chapter III, the Appeal Panel is a manifestation of the Executive. The rigour of Australian Chapter III jurisprudence does not permit a distinction to be drawn between a quasi-judicial tribunal and any other executive agency. The position of the Tribunal is no different to that of a Minister. Consider the case of a statute which provides that a Minister’s opinion about the Constitutional validity of a State Act can be registered as a judgment of the Supreme Court, enforceable as such against the persons involved in a dispute. It is only necessary to state that proposition to realise that it cannot be right. The Tribunal and Appeal Panel are in no different position.

77 It makes no difference that, by s119 of the ADT Act, a party to proceedings before an Appeal Panel may appeal to the Supreme Court on any question of law or that by s122 of the ADT Act the judicial review jurisdiction of this Court, with respect to the Tribunal and the Appeal Panel, is preserved.

78 The legislation under consideration in Brandy provided that, although upon registration a determination had effect as if it were an order made by the Federal Court, no action to enforce the determination could be made pending a “review” by the Federal Court of the determination. Upon such an application for review being made, the Court had power to review “all issues of fact and law”. This did not save the legislation there under consideration. The use of the word “review” rather than the word “appeal” as in the present legislation is not material. (See Brandy at 261.)

79 Indeed, as Mr Sexton submitted, the present legislation is more restrictive insofar as it does not permit any appeal with respect to questions of fact. In this case, as in Brandy, the Tribunal’s decision has effect upon registration and becomes enforceable even if the appeal provisions are not invoked. (See Brandy at 261-262 and 270-271.)

80 A State tribunal may, in my opinion, consider the Constitutional validity of State legislation in the course of the exercise of its statutory powers. However, no State tribunal can exercise the judicial power of the Commonwealth. The registration provisions to which I have referred have the consequence that if the Tribunal and Appeal Panel proceed to do the former, they will purport to do the latter.

Section 78B

81 Mr Reynolds submitted that any such reliance on Brandy was not within the scope of the s78B notice. It that were correct then by force of s78B(1) of the Judiciary Act, this Court could not proceed to hear or determine the matter. There was no challenge to the validity of the notice as such. (See T 29 lines 1-29.)

82 I have set out the Attorney’s notice above in part. The balance of the notice sets out the factual background of the proceedings which do not need to be set out.

83 The Constitutional issue formulated in the Notice raises the ability of the Tribunal to “hear and determine” a constitutional question. It does not purport to specify the nature of the argument to be put. Specifically, it does not identify particular provisions said to have the effect that the Tribunal cannot “hear and determine” such a question.

84 The notice is, in my opinion, stated in broad enough terms to encompass the issues which, in my opinion, are determinative.

85 The Brandy point was raised, particularly in the course of oral submissions. Although the Attorney asserted it was not determinative, he did rely on it. In my opinion, the Court can decide the case on the basis I have set out above.


Conclusion

86 As I have noted, the Commonwealth legislative scheme struck down in Brandy was preceded, and succeeded, by a scheme which conferred a deliberative function on a Chapter III Court.

87 The prior scheme had been criticised as an unnecessary duplication. (See e.g. Maynard v Neilson [1988] EOC 77,130 (92-226).) Not for the first or last time, the strict requirements of Chapter III jurisprudence prohibit a perfectly rational measure. (The fate of the cross-vesting scheme is another example.)

88 Where, as here, there is an express appeal on a question of law to a court invested with Federal jurisdiction, the conclusion I have reached is virtually devoid of practical significance. However, in my opinion, the decision in Brandy leads to that result.

89 No party submitted that the registration provisions were invalid. It may be difficult to read them down. The New South Wales Parliament should consider amending the legislation so that there is an alternative to automatic registration in any case in which an issue arises before the Tribunal under s75 or s76 of the Constitution.

90 There are of course a number of ways in which the issue sought to be agitated before the Appeal Panel can be resolved. Given the stage which the present proceedings have reached a reference of a question of law to the Supreme Court pursuant to s118 of the ADT Act would appear to be the most efficacious. However, that is a matter for the parties and the Appeal Panel. The Constitutional issue having been raised the Panel cannot proceed to determine the matter on an assumption that there is no Constitutional question.

91 The Attorney sought an order prohibiting the Appeal Panel from determining the Constitutional issue. Furthermore, the Attorney sought two declarations as follows:

“3 A declaration that the Administrative Decisions Tribunal of New South Wales is not a court of the State and cannot be invested with federal jurisdiction under s. 39 of the Judiciary Act 1903 (Cth).

4 A declaration that the Administrative Decisions Tribunal of New South Wales has no jurisdiction to, and, cannot hear and determine a question arising under the Commonwealth Constitution or involving its interpretation.”

92 No submission was made with respect to Declaration 3. It represents an application of Skiwing. This was not in issue before this Court. The Opponents made no submission that Declaration 4 was inappropriate.

93 This Court should apply s31 of the Interpretation Act 1987 so as to interpret s115(1)(b) of the ADT Act consistently with the reasoning in Brandy. When the latter requires the Appeal Panel to have regard to “any applicable written or unwritten law”, the word “applicable” should be interpreted so as not to extend to matters set out in s75 and s76 of the Constitution, relevantly, to a question arising under the Constitution or involving its interpretation. To construe the word “applicable” in this manner is, in my opinion, in accordance with the authorities on the interpretation of s15A of the Acts Interpretation Act 1901 (Cth) including Re Dingjan; Ex parte Wagner which I have quoted above.

94 Declaration 4 should be made in the following form (see para 8 above):

“A declaration that the Appeal Panel of the Administrative Decisions Tribunal has no jurisdiction to determine whether s49ZT of the Anti-Discrimination Act 1977 (NSW), should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters.”

95 It is not necessary to make an order prohibiting the Appeal Panel from proceeding contrary to the declaration. The Attorney did not seek an order for costs.

96 HODGSON JA: The Attorney-General seeks an order against the fifth opponent (ADT) prohibiting its Appeal Panel from taking steps in proceedings involving the first to fourth respondents “to hear or determine, or to purport to hear or determine, any Constitutional challenge to the validity of the Anti-Discrimination Act 1977 (NSW)”, and associated declarations including a declaration that the ADT has no jurisdiction to and cannot hear and determine a question arising under the Commonwealth Constitution or involving its interpretation.

97 The circumstances giving rise to this application and the issues involved in it are set out in the judgment of Spigelman CJ.

98 The Appeal Panel is required by s.115(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) “to decide what the correct and preferable decision is having regard to” among other things “any applicable written or unwritten law”. In my opinion, that must include the Commonwealth Constitution, where that is relevant, and also any relevant Commonwealth statute.

99 In my opinion, “any applicable written or unwritten law” must also include s.31 of the Interpretation Act 1987, which is as follows:

31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.

100 Thus, the combination of s.115(1) of the ADT Act and s.31(1) of the Interpretation Act requires the Appeal Panel, in disposing of any appeal, to have regard to any relevant constitutional limits of the legislative powers of the New South Wales Parliament in construing New South Wales legislation, including s.49ZT of the Anti-Discrimination Act 1977.

101 The first to third opponents wish to argue for a narrow interpretation of s.49ZT(1) (and/or a wide interpretation of s.49ZT(2)(a)) of the Anti-Discrimination Act on the basis of an implication in the Commonwealth Constitution of freedom of communication about government or political matters; and it has not been suggested by the Attorney-General that this is not a reasonable argument. As I have suggested, s.115 of the ADT Act and s.31 of the Interpretation Act command the Appeal Panel to have regard to this argument. The order sought by the Attorney-General would prohibit the Appeal Panel from doing so.

102 One possible solution would be for the Appeal Panel to stay its hand until the Constitutional question has been decided by a court exercising Federal jurisdiction. A mechanism for this is available by reason of s.118 of the ADT Act, which enables the Appeal Panel to refer questions of law arising in the appeal to the Supreme Court; so that solution could seem attractive.

103 However, a similar problem arises in the original jurisdiction of the ADT, in respect of which there is no provision similar to s.118 of the ADT Act, and in respect of which there appears to be no basis on which the ADT can adopt some procedure of not proceeding to determine a matter pending determination of a question of law by the Supreme Court.

104 Where there is a complaint that a person has contravened a provision of the Anti-Discrimination Act such as s.49ZT (see s.87A of the Anti-Discrimination Act), and that complaint is referred to the ADT (see s.95), then the ADT may find the complaint substantiated (see s.108(1)) and may make orders (s.108(2)) which can have serious consequences for the respondent (see ss.111 and 114 of the Anti-Discrimination Act and s.82 of the ADT Act). There is no express provision binding the ADT at first instance in similar terms to s.115(1) of the ADT Act; but in my opinion there can be no doubt that the ADT is required to have regard to the law in determining what burdens it imposes, and to impose those burdens in the light of what it regards as the valid applicable law. This view is amply confirmed by the existence of rights of appeal on questions of law.

105 Section 73 of the ADT Act requires the ADT to act as quickly as practicable, and while it may adjourn proceedings, there is no express power to do so indefinitely and no power to refer any question of law to the Supreme Court or to any other court. Accordingly, in my opinion, the ADT is required to make a decision on a complaint in accordance with valid law as it understands it to be, including s.31 of the Interpretation Act.

106 It was (perhaps faintly) argued by the Attorney-General in opposition to this proposition that s.115 of the ADT Act and s.31 of the Interpretation Act do not have the effect that I have mentioned, because the Constitution and provisions in it such as s.109 do not affect State law unless and until a court with Federal jurisdiction has decided that they do so. In my opinion, this submission is plainly incorrect. I would adopt the following passages from the judgment of Kirby J in Residual Assco Group Limited v. Spalvins [2000] HCA 33, (2000) 202 CLR 629 at [58] and [59]:

[58] The accepted doctrine in this country is that where a statute is found to be constitutionally invalid, such invalidity operates from the moment that the statute in question purportedly came into force. It is thus invalid ab initio. In South Australia v The Commonwealth [1942] HCA 14; (1942) 65 CLR 373 at 408 Latham CJ expressed the rule in these terms: "Common expressions, such as: 'The courts have declared a statute invalid,' sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour - but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is invalid ab initio."

[59] There are many similar expressions both in the reasons of this Court (Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25; (1955) 93 CLR 83; Barton v Commissioner for Motor Transport [1957] HCA 50; (1957) 97 CLR 633; Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246 at 267-268; Mason v New South Wales [1959] HCA 5; (1959) 102 CLR 108; Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432 at 464-465; Victoria v The Commonwealth and Hayden (the AAP Case) [1975] HCA 52; (1975) 134 CLR 338 at 361; Attorney-General (NSW); Ex rel McKellar v The Commonwealth [1977] HCA 1; (1977) 139 CLR 527 at 550) and of the Privy Council (Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd [1956] UKPCHCA 5; (1956) 94 CLR 177 at 180 (PC); [1956] AC 527 at 537) dealing with the effect of invalidity under the Constitution. As long ago as 1886 the Supreme Court of the United States in Norton v Shelby County [1886] USSC 184; 118 US 425 at 442 (1886) said, in like terms, that unconstitutional legislation "confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed".

107 Thus, in my opinion, the effect of upholding the Attorney-General’s submissions would not be that the Appeal Panel and the ADT at first instance should decide cases such as this without regard to relevant law such as the Constitution and s.31 of the Interpretation Act, but that the Appeal Panel should stay its hand until a question of law referred to the Supreme Court has been decided, and the ADT should stay its hand altogether. In my view, the latter course in relation to the ADT has no support from the provisions of the ADT Act.

108 Rejection of the Attorney-General’s submission would leave the Appeal Panel and the ADT at first instance with the capacity to do what s.115 of the ADT Act and s.31 of the Interpretation Act tell them to do; but this may seem to be precluded by the decision in Brandy v. Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245. However, there are two possible alternatives to upholding the Attorney-General’s submission on the basis of Brandy. One is that Brandy can be distinguished; and the other is that the true effect of the Brandy decision is the Brandy result, namely the invalidity of provisions that can automatically convert a decision of an administrative body into an order of a court.

109 In Brandy itself, the determination by the Human Rights & Equal Opportunity Commission of a complaint, and its declarations as to what should happen, were not themselves binding; but they became binding on registration as a Federal Court judgment. What the High Court held to be invalid was not the provisions about complaints, decisions and declarations, but the registration provisions: it was the registration provisions that had the effect that proceedings of the Commission were an exercise of judicial power, because they led to enforceable orders without the intervention of any judicial body.

110 In the case before this Court, the Attorney-General contends that Brandy does not mean that the New South Wales registration provisions are invalid, because, to the extent that the ADT and Appeal Panel exercise judicial power which is not Federal jurisdiction, there is no Constitutional impediment to this. What the Attorney-General contends is that registration makes the determination of the ADT and the Appeal Panel an exercise of judicial power, and that so much of that exercise as involves interpretation of the Constitution is an exercise of Federal judicial power. Accordingly, the Attorney-General submits, what the Appeal Panel should do is to make its decision regardless of Constitutional questions. In my opinion, as I have suggested above, that cannot be correct because it would be in contravention of the commands given by s.115 of the ADT Act and s.31 of the Interpretation Act.

111 In addition, I do not think it can be in accordance with the Commonwealth Constitution for the New South Wales Parliament to authorise a tribunal to impose penalties or make coercive orders, which can automatically be given the effect of judicial orders, regardless of whether or not the law so authorising this is a valid or invalid law under the Commonwealth Constitution.

112 I have foreshadowed another possible view, namely that the case of Brandy is distinguishable. The argument would be along the following lines. What is indicative of the exercise of judicial power is the registration of decisions so that they take effect as if they were orders of a court. In Brandy, that was enough to taint the administrative decision that based such an order, because the administrative tribunal could not, consistently with the Commonwealth Constitution, make any kind of judicial decision whatsoever. A State tribunal, on the other hand, can exercise judicial power so long as it is not an exercise of Federal jurisdiction; so that the registration of its decisions to take effect as orders of a court does not automatically taint what went before as exercises of judicial power which were beyond jurisdiction. In substance, all that the tribunal would do if it applied s.31 of the Interpretation Act in this case would be to give effect to its understanding of valid State legislation; and the circumstance that on the way to doing so, it formed an opinion as to the effect of the Constitution and/or Commonwealth law on that State legislation, would not of itself be an exercise of Federal jurisdiction, because this opinion as such would not be binding on anyone. The registration of the decision would give no additional effect to the reasons for the decision; and the decision itself, which takes effect as an order of a court, would be supported by the administrative body’s jurisdiction in relation to applicable valid State law.

113 Thus, it seems to me there are three possible views on the matter:

1. The application of s.31 of the Interpretation Act in a case such as this would involve the exercise of Federal jurisdiction, so that the Appeal Panel and the ADT in its original jurisdiction cannot proceed to a decision of the matter at all, unless and until the Constitutional question is addressed by a Court having Federal jurisdiction.

2. The registration provisions are not valid.

3. For the Appeal Panel or the ADT at first instance to apply s.31 of the Interpretation Act in a case such as this would not be an exercise of Federal jurisdiction, because Brandy is distinguishable on the basis I have indicated in the previous paragraph.

114 On balance, I think the third alternative should be rejected. If a tribunal decision on a Constitutional question is a basis for a decision that can automatically be given the effect of a court order, I think the decision on the Constitutional question must be seen as an exercise of Federal jurisdiction.

115 This leaves the first two alternatives. No-one contended for the second alternative, and consideration of it would probably require a further s.78B notice. In these circumstances, the second alternative cannot be either adopted or excluded. However, a declaration can be made that in substance leaves open both of the first two alternatives, without deciding between them, namely a declaration that the Appeal Panel has no jurisdiction to determine a Constitutional question.

116 This declaration would not preclude the Appeal Panel from reaching its own conclusion on a Constitutional question if the registration provisions are not valid, because then the Appeal Panel would not be exercising jurisdiction to determine the Constitutional question. However, unless and until the registration provisions were held to be invalid by a court, or else amended as suggested by Spigelman CJ, the appropriate course for the Appeal Panel would be to refrain from deciding a Constitutional question, and thus from deciding any appeal that depended on a Constitutional question, unless and until that question had been decided by a court.

117 That is my understanding of the effect of the declaration proposed by Spigelman CJ. For the reasons I have given, I agree that this declaration should be made.

118 IPP JA: I agree with Spigelman CJ and Hodgson JA.

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LAST UPDATED: 12/12/2006