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An v Australian Broadcasting Corporation

An v Australian Broadcasting Corporation

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Case Copied 30 August 2024 80 min read

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AN and Others v AUSTRALIAN BROADCASTING CORPORATION Supreme Court of VictoriaHarris J 2, 30 August 2024[2024] VSC 518Constitutional law — Commonwealth — Judicial power — Jurisdiction — Whether Australian Broadcasting Corporation is ‘the Commonwealth, or a person ... being sued on behalf of the Commonwealth’ — Whether proceeding in Victorian Civil and Administrative Tribunal a matter within federal jurisdiction — Whether VCAT has jurisdiction — Constitution, s 75(iii).Constitutional law — Commonwealth — Judicial power — Jurisdiction — Whether proceeding requiring determination of whether a person is the Commonwealth is a matter ‘arising under [the] Constitution, or involving its interpretation’ — Whether proceeding a matter within federal jurisdiction — Whether VCAT has jurisdiction — Constitution, s 76(i).Practice and procedure — Victorian Civil and Administrative Tribunal — Whether VCAT has power and duty to determine own jurisdiction — Whether open and appropriate for VCAT to refer question of jurisdiction to Supreme Court — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 96.Practice and procedure — Costs — Appeal costs — Whether referral of questions of law under s 96 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) a case stated or special case — Appeal Costs Act 1998 (Vic), s 19.

The applicants applied to the Victorian Civil and Administrative Tribunal (VCAT) alleging that, by publishing certain reports, the ABC, a body corporate continued in existence by the Australian Broadcasting Corporation Act 1983 (Cth), had breached s 8 of the Religious and Racial Tolerance Act 2001 (Vic). The respondent denied the allegations.

After a hearing in VCAT, the ABC raised a question as to whether it was the ‘Commonwealth, or a person ... being sued on behalf of the Commonwealth’ for the purposes of s 75(iii) of the Commonwealth Constitution (Constitution), such that VCAT had no jurisdiction to determine the application.

It was common ground, following Burns v Corbett (2018) 265 CLR 304 and Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361, that VCAT was not a ‘court of a State’ within the meaning of s 77(iii) of the Constitution, that if VCAT were to determine the application it would be exercising judicial power, and that the Victorian Parliament was incapable of conferring judicial power on VCAT in respect of any ‘matter’ arising under ss 75 or 76 of the Constitution.

Over the applicants’ objection, the VCAT President referred two questions of law to the Trial Division of the Supreme Court under s 96 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). The first question was that raised by the ABC. The second question was whether the whole of the VCAT proceeding was nevertheless a ‘matter’ within federal jurisdiction because it involved a matter ‘arising under [the] Constitution, or involving its interpretation’ for the purposes of s 76(i) of the Constitution.

Held, answering both questions in the negative,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 518
Decision Date: 30 August 2024

CaseChat Overview and Summary

In the matter of An v Australian Broadcasting Corporation, the Victorian Civil and Administrative Tribunal (VCAT) was tasked with determining whether it had jurisdiction to hear a proceeding brought by a plaintiff against the Australian Broadcasting Corporation (ABC). The plaintiff sought to challenge a decision made by the ABC, and the central issue was whether the ABC qualified as 'the Commonwealth or a person being sued on behalf of the Commonwealth' for the purposes of s 75(iii) of the Commonwealth Constitution. Consequently, the case examined whether the proceeding fell within federal jurisdiction, thereby potentially impacting VCAT's authority to hear the case.

The court was required to dissect the statutory and constitutional frameworks to ascertain the ABC's status and the consequent jurisdictional implications. It was necessary to interpret the relevant sections of the Victorian Civil and Administrative Tribunal Act 1998, particularly s 96, in conjunction with the Commonwealth Constitution. The court also needed to consider precedents such as Burns v Corbett, Citta Hobart Pty Ltd v Cawthorn, Thurin v Krongold Constructions, and Hanssen Pty Ltd v Owners of Strata Plan 58161, which provided guidance on similar jurisdictional issues involving public entities and federal matters.

After thorough analysis, the court determined that the ABC was not considered 'the Commonwealth or a person being sued on behalf of the Commonwealth' for constitutional purposes. The court concluded that the proceeding did not fall within federal jurisdiction, thereby affirming VCAT's jurisdiction to hear the case. The reasoning hinged on the interpretation of the statutory provisions and the nature of the ABC's functions, which did not align with entities protected under s 75(iii) of the Constitution. The court's decision thus upheld VCAT's authority to proceed with the matter at hand.

Orders