Something federal this way comes

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

Citta v Cawthorn concerns the limits on jurisdiction of State tribunals which are not ‘court[s] of a State’ (within s 77 of the Constitution). The case explains the scope of matters arising under the Constitution or under a Commonwealth law; a non-court State tribunal cannot exercise judicial power in relation to those matters (or other matters in ss 75-76 of the Constitution). In essence, the High Court held that there will be a “matter” when a party genuinely raises a claim or defence in reliance on the Constitution or a Commonwealth law, and where that issue is “not incapable on its face of legal argument”.

In Victoria, these limitations affect VCAT’s jurisdiction (see Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361). The principles concerning “matters” within s 76 also apply when determining whether federal courts have jurisdiction (eg Judiciary Act 1903 (Cth) s 39B(1A)(b), (c)), and whether a party must issue a notice of constitutional matter under the Judiciary Act.


The issue arose from a complaint made by Mr Cawthorn (the respondent in the High Court) under the Anti-Discrimination Act 1998 (Tas) (State Act). The appellants were the developer and owner of land for the Parliament Square development in Hobart. Mr Cawthorn uses a wheelchair for mobility. He claimed that the appellants had discriminated on the ground of disability by failing to provide adequate wheelchair access in the proposed development. Mr Cawthorn’s complaint was referred to the Anti-Discrimination Tribunal of Tasmania.

In their defence to the complaint, the appellants asserted that the State Act is relevantly inoperative by reason of s 109 of the Constitution, because it is “inconsistent” with the Disability Discrimination Act 1992 (Cth) and Standards made under it.

The Tribunal’s jurisdiction

All parties (and interveners) agreed that the Tribunal is not a ‘court of the State’. Therefore – due to the constitutional implication identified in Burns v Corbett (2018) 266 CLR 304 – the Tasmanian Parliament could not confer judicial power on the Tribunal with respect to any “matter” described in s 75 or s 76 of the Constitution. That includes matters arising under the Constitution (s 76(i)) or under a Commonwealth law (s 76(ii)).

Litigation history

The Tribunal dismissed the complaint on the basis that it did not have jurisdiction to decide it.  On appeal by Mr Cawthorn, the Full Court of the Supreme Court of Tasmania addressed the merits of the appellants’ constitutional defence and unanimously rejected it, remitting the complaint to the Tribunal.


The argument in the High Court focussed on three key issues:

  • First, would the Tribunal, in hearing and determining a complaint under the State Act, exercise judicial power? (If not, then the Tribunal would not be precluded from hearing the complaint.)
  • Second, was Mr Cawthorn’s complaint in the Tribunal a “matter” within s 76 of the Constitution?
  • Third, was the State Act inconsistent with the Disability Discrimination Act 1992 (Cth) and the Standards, within the meaning of s 109 of the Constitution?

The judgments

The Court unanimously allowed the appeal. Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ delivered a joint judgment. Edelman J wrote separately.

Does the Tribunal exercise judicial power when determining a complaint?   Yes

This question was not raised in the Tribunal or Supreme Court. In the High Court, the Australian Human Rights Commission (intervening) raised the argument that the State Act, properly interpreted, means that an order of the Tribunal is not binding unless and until it is registered in the Supreme Court. (The State Act provides a process for registering an order, and once registered, the order becomes “enforceable as if it were an order of the Supreme Court”). If that argument was accepted, then the Tribunal would not exercise judicial power when hearing and determining a complaint. The Court held, however, that the State Act “makes clear” that a Tribunal order “takes immediate effect as an order with which the person to whom it is directed is bound to comply”. Unlike the legislation considered in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, the registration of the Tribunal’s order was not a precondition to a requirement to comply. 

Was there a matter under s 76 of the Constitution?   Yes

A “matter” is the subject matter for determination in a legal proceeding, or a “justiciable controversy about a legal right or legal duty”. The question of whether there is a matter must be determined by “objective assessment”. The Court clarified that the test is the same when a non-court tribunal (like VCAT, or the Anti-Discrimination Tribunal) considers whether a case falls outside its jurisdiction, and when a court which exercises federal jurisdiction (like the Federal Court) considers whether a case is within its jurisdiction. 

The joint judgment explained that a matter “arises”:

  • under the Constitution (s 76(i)): “where the invalidity or inoperability of a Commonwealth or State law is asserted in the course of the controversy in reliance on the Constitution”;
  • under Commonwealth law (s 76(ii)): “where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy”.

​​​​​​​It is “enough” that the issue (claim or defence) under Commonwealth law or the Constitution be “genuinely raised” (not “fabricated”) and “not incapable on its face of legal argument”. The joint judgment emphasised that, apart from assessing whether the issue is “incapable on its face of legal argument” or “nonsense”, the merits are irrelevant to whether there is a “matter”. Edelman J framed the test as whether the issue involves a “real question” – not being “preposterous or manifestly hopeless”.

Once there is a “matter” within s 76(i) or (ii), this characterises “the totality of the justiciable controversy” – even if the issue invoking the Constitution or a Commonwealth law is resolved or withdrawn.

Is the State Act inconsistent, within the meaning of s 109?   Not decided – not unarguable 

The joint judgment found that the appellants’ defence, relying on s 109 of the Constitution, was “genuinely raised” and was “not incapable on its face of legal argument”. The joint judgment did not further address the arguments raised about the operation of s 109.

Edelman J considered whether the appellants raised a “real question” regarding s 109. His Honour held that “it was not manifestly hopeless to allege that the State Act was ‘indirectly’ inconsistent with the Commonwealth Act on the argued basis that the Commonwealth Act was intended to be exhaustive in its coverage of the relevant subject matter of disability standards.”


The Court held unanimously that the complaint and the appellants’ defence together formed part of a single matter within ss 76(i) and 76(ii) of the Constitution, and that the Tribunal would exercise judicial power to determine the complaintTherefore, the Tribunal was correct to dismiss Mr Cawthorn’s complaint for lack of jurisdiction.

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