State legislatures cannot vest jurisdiction in executive tribunals over residents of other States

The High Court unanimously held that a State legislature could not vest jurisdiction in an executive tribunal to hear a dispute between residents of different States, but split 4:3 on why


Mr Garry Burns, who is from New South Wales, made two complaints to the Anti-Discrimination Board of New South Wales. The subjects of the complaints were Ms Therese Corbett, from Victoria, and Mr Bernard Gaynor, from Queensland. Both complaints were removed to the Civil and Administrative Tribunal of New South Wales (NCAT), a tribunal that was executive in character, not judicial. So arose the question of whether an executive tribunal of a State could determine a dispute between residents of different States (that is, a dispute within s 75(iv) of the Constitution).


Every Justice of the High Court held that an executive tribunal of a State could not be given jurisdiction to determine such a dispute (or a dispute under the other provisions of ss 75 and 76 of the Constitution): Burns v Corbett [2018] HCA 15. Four Justices considered that such a conferral of jurisdiction was implicitly inconsistent with Chapter III of the Constitution, whereas three Justices considered that such a conferral of jurisdiction was inconsistent with Commonwealth legislation (specifically, s 39 of the Judiciary Act 1903 (Cth)).


The substance of Mr Burns’s complaint was that Ms Corbett and Mr Gaynor had each done a public act that vilified homosexuals contrary to New South Wales legislation. In the matter involving Ms Corbett, NCAT had ordered her to apologise, which she refused to do, so Mr Burns brought contempt proceedings in the Supreme Court. In the matter involving Mr Gaynor, NCAT had not yet heard the merits of the complaint, but had made a costs order adverse to Mr Gaynor. Ms Corbett in her contempt defence and Mr Gaynor in an appeal from the adverse costs order asserted that NCAT did not have jurisdiction over their respective cases. The two cases were ultimately heard together by the New South Wales Court of Appeal. Chief Justice Bathurst and Beazley P agreed with Leeming JA, who provided the reasons for the decision: Burns v Corbett [2017] NSWCA 3.

In the Court of Appeal, Leeming JA held that the Constitution did not by implication preclude a State from conferring jurisdiction on a tribunal. Section 75(iv) of the Constitution confers original jurisdiction on the High Court in respect of disputes involving residents of different States. Section 77(iii) empowers the Commonwealth Parliament to invest State courts with jurisdiction over such matters. Justice Leeming reasoned that, in the absence of legislation under s 77(iii), the State legislatures would be able to confer jurisdiction to hear disputes involving citizens of different States on executive tribunals, as they had prior to Federation. His Honour reasoned that “to the extent that the legislative power conferred by s 77 is not exercised, then the other provisions in Chapter V of the Constitution, notably ss 106, 107 and 108, suggest that the Constitution, powers and laws of the States continue as they were”: [59].

However, in light of the fact that the Commonwealth Parliament has enacted legislation under s 77(iii)—being the s 39 of the Judiciary Act—a secondary question involving s 109 of the Constitution was engaged. Justice Leeming held that s 39 of the Judiciary Act, which invested State courts (but not executive tribunals) with s 75(iv) jurisdiction, left no room for State legislatures to invest State tribunals with the same jurisdiction.

All seven Justices of the High Court agreed that NCAT had no jurisdiction. The reasons of Kiefel CJ, Keane and Bell JJ, together with Gageler J, provide a holding that Chapter III by implication precludes a State legislature from investing an executive tribunal with jurisdiction over matters under ss 75 and 76.

Chief Justice Kiefel, Keane and Bell JJ referred to s 77(ii) of the Constitution, which they said deals with what would happen in the absence of Commonwealth legislation, and that is that the State courts would continue to exercise their jurisdiction. Their Honours held that Chapter III contemplates the exercise of adjudicative power (over s 75(iv) matters) only by the High Court, by other federal courts created by Commonwealth statute, by State courts invested with such power by Commonwealth statute, or by State courts to which such power belongs or in which it is invested. Chapter III recognises no other governmental institution as having the potential to exercise adjudicative authority over the matters listed in ss 75 and 76.

Justice Gageler reached the same conclusion. His Honour held that a “structural implication” from Chapter III was that an exercise of judicial power with respect to a matter within ss 75 and 76 could only occur under the authority of Commonwealth law, in a forum which meets the minimum characteristics of a Chapter III court, so that judgments are directly appealable to the High Court, subject to exceptions or regulations prescribed by the Commonwealth under s 73(ii). His Honour emphasised the role of the High Court as the final appellate court, and observed that if State legislatures could confer jurisdiction over ss 75 and 76 matters in executive tribunals, they could also make such executive tribunals not subject to appeals to any court (except the constitutionally entrenched supervisory jurisdiction of State Supreme Courts), including the High Court.

Justice Gordon, with whom Nettle J agreed, held that the operation of s 39 of the Judiciary Act together with s 109 of the Constitution precluded the investing of a State executive tribunal with the relevant jurisdiction. Their Honours rejected the existence of the constitutional implication contended for by the Commonwealth (and found by the majority of the Court). Justice Edelman, like Nettle J and Gordon J, rejected the existence of the implication, but found that the conferral of jurisdiction on NCAT was inconsistent with the Judiciary Act.

In Justice Edelman’s reasons in particular, extensive reference was made to the historical context in which the Constitution came into effect. Justice Edelman observed that the implication sought by the Commonwealth was inconsistent with the historical model and the historical context of s 77(ii) at Federation. Justice Gageler’s reasons provide some observations of the role of history in construing the Constitution that contrast with Justice Edelman’s reasons. Justice Gageler rejected the historical facts as having any relevance, stating that practices adopted by State entities in the administration of former colonial legislation without apparent advertence to the potential impact of the Constitution “carry no interpretative weight at all”: [111]. His Honour observed that there was no reason in constitutional principle why a structural implication must be shown to accord with pre-Federation expectations.

This case resolved by 4:3 majority that the particular Chapter III implication contended for does flow from the Constitution. Thus ends, presumably, Mr Burns’s attempt to find relief, at least in the New South Wales executive tribunals. What might be ongoing, however, is the discussion about the proper role for history in interpreting and giving meaning to the Constitution. That is not a new debate, but the reasons of Gageler J, on the one hand, and Edelman J, on the other, are important contributions on that subject.

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