Attorney-General for the State of South Australia v Raschke
[2019] SASCFC 83
•11 July 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v RASCHKE & ANOR
[2019] SASCFC 83
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
11 July 2019
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - CLASSIFICATION OF FUNCTIONS: JUDICIAL, LEGISLATIVE OR ADMINISTRATIVE - PARTICULAR FUNCTIONS - OTHER MATTERS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS
Appeal by the Attorney General of South Australia (AG) against a decision of the President of the South Australian Civil and Administrative Tribunal (the Tribunal) that the Tribunal would be exercising federal judicial power should it determine, via internal review, a residential dispute between residents of South Australia and Victoria.
The second respondent, Ms Firinauskas, initiated an application for vacant possession of her residential premises against the first respondent, Mr Raschke. The basis of the application was a failure of Mr Raschke to pay outstanding rent. Ms Firinauskas served Mr Raschke with a breach for failure to pay. On 14 May 2018, using its jurisdiction to hear and determine disputes under the Residential Tenancies Act 1995 (SA) (the RTA), the Tribunal found that that notice validly terminated the tenancy, and ordered vacant possession of the premises. The Tribunal also ordered that Mr Raschke be permitted to remain on the premises for a short period of time.
Mr Raschke sought an internal review of the Tribunal’s orders. At a preliminary hearing for that review, it was discovered that Ms Firinauskas was a resident of Victoria, and Mr Raschke a resident of South Australia. A senior member of the Tribunal then referred the question of whether the Tribunal is authorised to determine the application under the RTA to the President of the Tribunal.
The President answered ‘no’ to that question. The President found that the disposition of the application for internal review required an exercise of federal judicial power which the Tribunal was not authorised to undertake because it is not a court. So far as it was necessary, the order of 14 May 2018 was set aside.
The question for this Court is whether, in making the findings and orders of 14 May 2018, the Tribunal was, and whether on any review it would be, exercising judicial power, which, by reason of Ms Firinauskas’ interstate residence, was the judicial power of the Commonwealth.
Neither the AG nor the amici curiae appointed by the Court challenge the President’s decision that the Tribunal is not a court. Rather, the AG contends that the Tribunal was not exercising judicial power. It does so on two grounds:
1. The directions exercisable under the RTA are too wide to be an exercise of judicial power.
2. The Tribunal cannot enforce its own decisions; the powers it exercised were administrative only, even if its jurisdiction under the RTA could be exercised judicially.
Held per Kourakis CJ (Kelly and Hinton JJ agreeing), dismissing the appeal:
1. The powers exercised by the Tribunal in making the orders for vacant possession were judicial.
Constitution ss 71, 72, Chapter III; Residential Tenancies Act 1995 (SA) ss 3, 24, 56, 63, 76, 80, 87, 93, 95, 99, 110, Part 4 Divisions 1-9 and 10, Part 5 Divisions 4, 6 and 8.; Judiciary Act 1903 (Cth); Residential Tenancies Act 2010 (NSW) ss 87, 121, 187; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 89, 89A; Courts Administration Act 1993 (SA) ss 21A; Sheriff’s Act 1978 (SA) ss 5, 8; Enforcement of Judgments Act 1991 (SA) s 17; Bankruptcy Act 1950 (Cth); Corporations Act 2001 (Cth) s 657A, s 657D; Racial Discrimination Act 1975 (Cth); Fair Trading Act 1987 (SA) Part 3 Division 1; Competition and Consumer Act 2010 (Cth) ss 20, 21; Trademarks Act 1955 (Cth); Criminal Law (High Risk Offenders) Act 2015 (SA) Part 2; Criminal Code Act 1995 (Cth) Division 104 Subdivision B, referred to.
Burns v Corbett (2018) 92 ALJR 423; The Queen v Davison (1954) 90 CLR 353; Brandy v Human Rights and Equal Opportunities Commission (1995) 183 CLR 245; Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; Attorney-General for the Commonwealth of Australia v Alinta Limited and Others (2008) 233 CLR 542; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, applied.
Australian Pipeline Ltd v Alinta Ltd and Others (2007) 159 FCR 301, not followed.
Raschke v Firinauskas [2018] SACAT 19; Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652; Attorney-General for New South Wales v Gatsby [2018] NSWCA 254; Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134; Silk Bros. Pty Ltd v State Electricity Commissioner Victoria (1943) 67 CLR 1; The Queen v Quinn; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1; Ex Parte Woo Tin (1888) 9 LR (NSW) 493, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"Judicial power", "administrative power", "chameleon"
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v RASCHKE & ANOR
[2019] SASCFC 83Full Court: Kourakis CJ, Kelly and Hinton JJ
KOURAKIS CJ: On 14 May 2018, a member of the South Australian Civil and Administrative Tribunal (the Tribunal) heard an application by the second respondent, Ms Firinauskas, for vacant possession of her residential premises in Macclesfield. The first respondent, Mr Raschke, was her tenant.
The Tribunal found that Ms Firinauskas had served Mr Raschke with a notice of breach for failure to pay outstanding rent of $1,707.05 within the time permitted and that the notice had validly terminated the tenancy. However, in recognition of poor financial circumstances the Tribunal ordered that:
·Ms Firinauskas have vacant possession of the premises;
·Mr Raschke be allowed to remain in the premises until 7 June 2018 on condition that he make payments of $730 to Ms Firinauskas’ agent by 5.00 pm on 17 May 2018, and again on 31 May 2018. In default of either payment, the Tribunal would, after a hearing on the papers, instruct a bailiff to evict anyone remaining on the premises;
·In any event, the tenancy will terminate at midday on Thursday 7 June 2018 and a failure to vacate the premises would be enforced by the Tribunal bailiff;
·All outstanding rent to be payable forthwith on 7 June 2018 and if it equalled or exceeded the bond, the bond was to be paid out to Ms Firinauskas without conducting an oral hearing.
It is common ground that in making those findings and orders, the Tribunal was exercising its jurisdiction to hear and determinate a tenancy dispute under the Residential Tenancies Act 1995 (SA) (the RTA).[1] A tenancy dispute is defined by the RTA to include a claim under a residential tenancy agreement, that is, an agreement to occupy premises for the purposes of a residence.[2] The Attorney‑General accepted on the appeal that a residential tenancy agreement is both a contract and an instrument granting an interest in land.
[1] Section 24.
[2] Section 3.
It was also common ground that the Tribunal orders were made pursuant to ss 93(2) and (4) of the RTA, which empowers it to:
·make an order for possession of the premises;
·suspend the operation of the order for possession for up to 90 days; and
·extend the operation of the residential tenancy agreement until vacant possession was given up to the landlord.
Mr Raschke sought an internal review of these orders. On 28 May 2018 at a preliminary hearing of that internal review, it was noticed that Ms Firinauskas was a resident of Victoria and Mr Raschke a resident of South Australia. On that day a Senior Member of the Tribunal referred the question of whether the Tribunal is ‘authorised to determine the application for internal review of the Tribunal’s decision of 14 May 2018 under the [RTA]’.
The question referred was determined by the President of the Tribunal, who answered it ‘No’.[3] The President held that the disposition of the application for internal review required an exercise of federal judicial power which the Tribunal was not authorised to undertake because it is not a court. The order of 14 May 2018 was, in so far as it was necessary, set aside. The Attorney-General appeals against the decision of the President.
[3] Raschke v Firinauskas [2018] SACAT 19.
Neither the Attorney-General nor the amici curiae, who was appointed by order of this Court, challenged the President’s decision that the Tribunal was not a court. The Attorney-General contends that the Tribunal was not exercising judicial power. The amici argues that it was, and supports the answer given by the President.
In Burns v Corbett,[4] the High Court unanimously held that State tribunals that are not State ‘courts’ cannot exercise federal judicial power, that is, the adjudication of any matters of the kind identified in ss 75 and 76 of the Constitution. A majority of the Court, comprising Kiefel CJ, Bell and Keane JJ, with Gageler J agreeing, held that Chapter III of the Constitution itself impliedly limits State legislative power, such that State Parliaments have no power to confer judicial power, with respect to matters of the kind identified in ss 75 and 76 of the Constitution, on non‑court State tribunals.[5] In Attorney-General for New South Wales v Gatsby[6] (Gatsby), the Court of Appeal of New South Wales held that the Residential Tenancies Act 2010 (NSW) (the NSW Act) invalidly purported to confer judicial power on the Civil and Administrative Tribunal of that State in giving it jurisdiction to adjudicate residential tenancy disputes. The Attorney-General submitted that that decision is distinguishable because of material differences between the New South Wales and South Australian residential tenancy legislation.
[4] Burns v Corbett (2018) 92 ALJR 423.
[5] Nettle, Gordon and Edelman JJ held that, whilst State Parliaments did not lack legislative power to confer such jurisdiction on non-court State tribunals, the operation of State laws which purported to do so was excluded by s 39(2) of the Judiciary Act 1903 (Cth).
[6] [2018] NSWCA 254.
It follows that the question for this Court is whether, in making the findings and orders on 14 May 2018, the Tribunal was, and whether on any review it would be, exercising judicial power, which, by reason of the interstate-residence of Ms Firinauskas, was the judicial power of the Commonwealth. The Attorney‑General accepts that if the determination of the proceedings would be an exercise of federal judicial power, then the Tribunal, not being a court, has no jurisdiction to hear and determine them.
The decision of the President of the Tribunal
The President commenced her consideration by asking whether the power exercised by the Tribunal in the claim for vacant possession, and in review of the single member’s decision, was judicial power or administrative authority. The President noted that most claims made under the RTA relate to, or are, contractual disputes about the terms of, and compliance with, the tenancy agreement.
The President observed that the RTA conferred on the Tribunal a number of wide discretions to vary or ameliorate the strictly contractual or proprietary rights and interests of the parties, primarily to the benefit of tenants. The President had regard to the obligation of the Tribunal to determine disputes by reference to ‘equity, good conscience and the substantial merits of the case’,[7] but also adverted to the limits on the scope of that discretion articulated in certain authorities. The President then noted:[8]
[7] Raschke v Firinauskas [2018] SACAT 19 at [72].
[8] Raschke v Firinauskas [2018] SACAT 19 at [41]-[43].
·the consequences of non-compliance with the Tribunal’s orders bore a ‘verisimilitude’ with the finality of court orders; and
·the absence of a power to punish contempt,
before concluding:
[43]However, the mechanisms in the scheme that exhort adherence to the outcomes lead to the conclusion that the scheme confers a sufficiently binding, final and authoritative quality to orders made under it not to be inconsistent with the exercise of judicial power.
After referring to the procedures and practices of the Tribunal, the President expressed her preliminary view that the power it exercised was judicial, before proceeding to consider whether the Tribunal was a court, citing the following passage from the judgment of Dixon CJ:[9]
[9] Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 659-660.
The decision of the Privy Council as well as of this Court in the case of the Shell Oil Company named in this Court British Imperial Oil Co Ltd v Federal Commissioner of Taxation is enough to show that words which might otherwise be sufficient to confer judicial power may be governed by the context as well as by the character of the body or person upon whom the power is conferred and may be construed as going no further than granting administrative power.
(Citation omitted)
The President then went on to consider whether the Tribunal was a court. She noted that:[10]
[10] Raschke v Firinauskas [2018] SACAT 19 at [63]-[69].
·the Tribunal is not designated a court by the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act);
·it makes a broad range of orders across a number of jurisdictions;
·it does not perform core executive functions such as policy setting, and the delivery of public services; and
·its activities are consistent with it being a court or a tribunal.
The President considered that the informal procedures of the Tribunal were strongly indicative of its character as a tribunal and not a court.[11]
[11] Raschke v Firinauskas [2018] SACAT 19 at [74].
The President explained that that indication was reinforced by the Tribunal’s limited power to enforce its own orders:[12]
[12] Raschke v Firinauskas [2018] SACAT 19 at [75]-[76].
[75]That indication is then strongly reinforced by the fact that the Tribunal does not have the power to enforce its own decisions, other than through its bailiff. Some consideration of the Tribunal’s lack of enforcement powers has already been undertaken insofar as they bore on the question of the nature of the Tribunal’s orders as final and binding. Whilst the Tribunal’s architecture in support of ensuring compliance with orders is sufficient to satisfy me that the power being exercised by the Tribunal under the scheme is judicial, the lack of a contempt power is strongly indicative of the body itself not being a court. The Tribunal’s enforcement powers are:
− that certain persons may recover an amount specified in a monetary order in an appropriate court ‘as if it were a debt’;
− a person who contravenes or fails to comply with an order of the Tribunal is guilty of an offence;
− a person who disrupts proceedings is guilty of an offence.
[76]The Tribunal is not always empowered to enforce its own orders as a Court may nor is it capable of imprisoning, fining, or even protecting its own proceedings by punishing a party for contempt.
(Citations omitted)
The President then observed that:[13]
[13] Raschke v Firinauskas [2018] SACAT [78]-[80].
·the limited enforcement scheme provided by s 99 of the RTA does not confer on the Tribunal a general power to enforce its own orders;
·the Tribunal can order injunctions and specific performance, and make restraining orders which must not be contravened; and
·the Tribunal’s inability to enforce its own orders is a strong indicator that it is not a court.
The President then turned to the composition of the Tribunal, noting that not all of its members were legally qualified.[14] The President referred to the conflicting decisions in Trust Company of Australia Ltd v Skiwing Pty Ltd[15] and Owen v Menzies[16] on the significance of lay membership of a Tribunal. The President observed that even though membership predominantly of lawyers is an ‘ideal’, it may not be a necessary attribute of a court.[17]
[14] Raschke v Firinauskas [2018] SACAT 19 at [86].
[15] (2006) 66 NSWLR 77.
[16] (2012) 265 FLR 392.
[17] Raschke v Firinauskas [2018] SASAT 19 at [86], referring to Owen v Menzies (2012) 265 FLR 392 at [400]-[420].
After concluding that the Tribunal was not a court, the President returned to the question of the nature of the power it exercised under the Act:[18]
[18] [2018] SACAT 19 at [89].
[90]… Notwithstanding that it is not a court I am still satisfied that the power it exercises when it performs functions under the [RTA] is judicial. This is because it is evident that the extent of the use of judicial power is likely to be quite limited, bearing in mind the extent of the jurisdiction conferred which undoubtedly does not require an exercise of judicial power. Thus the better characterisation is of a tribunal which occasionally exercises judicial power as determined by the particular scheme it is supervising, rather than a court performing predominantly administrative activities, or a tribunal performing entirely administrative activities.
The RTA
On appeal, the Attorney-General contended that the power exercised by the Tribunal was not judicial on two grounds. The first was that the discretions exercisable under the RTA are too wide to be an exercise of judicial power. The second was that the Tribunal cannot enforce its own decisions; the powers it exercised were administrative only, even if its jurisdiction under the RTA could be exercised judicially. It is therefore necessary to commence with a close examination of the nature of the jurisdiction and powers exercisable by the Tribunal under the RTA.
Section 3 of the RTA defines a residential tenancy agreement to mean ‘an agreement … under which a person grants another person, for valuable consideration, a right … to occupy premises for the purpose of residence’. It follows that a residential tenancy agreement is a contract which confers a proprietary interest in land. Relevantly, the same section defines ‘tenancy dispute’ to mean:
(a)a claim under a residential tenancy agreement …; or
(b)a dispute between parties or former parties to a residential tenancy agreement, … about matters arising under the agreement or this Act; or …
A tenancy dispute, therefore, is a legal controversy of a kind over which judicial power has long been, and which continues to be, a substantial part of the civil jurisdiction exercised by the courts of record of this State.
Section 24 of the RTA confers on the Tribunal the following jurisdiction over tenancy disputes:
(1) The Tribunal has—
(a) exclusive jurisdiction to hear and determine a tenancy dispute;
…
(2)However, the Tribunal does not have jurisdiction to hear and determine a monetary claim if the amount claimed exceeds $40 000 unless the parties to the proceedings consent in writing to the claim being heard and determined by the Tribunal (and if consent is given, it is irrevocable).
(3)If a monetary claim is above the Tribunal's jurisdictional limit, the claim and any other claims related to the same tenancy may be brought in a court competent to hear and determine a claim founded on contract for the amount of the claim.
(4)A court in which proceedings are brought under subsection (3) may exercise the powers of the Tribunal under this Act and, to such extent as may be necessary and appropriate, the powers of the Tribunal under the South Australian Civil and Administrative Tribunal Act 2013.
…
It is significant that the Tribunal’s jurisdiction over monetary tenancy claims which exceed $40,000 is shared with this State’s courts of general jurisdiction.
The Tribunal, constituted by a legally qualified member, or otherwise with the approval of the President or a Deputy President, is also authorised to make an order in the nature of an injunction (including an interim injunction) or an order for specific performance and to make ancillary or incidental orders.[19]
[19] Residential Tenancies Act 1995 (SA) s 35.
Section 63 of the RTA provides an administrative scheme for the disbursement of a rental bond held by the Commissioner at the conclusion of a tenancy. The Commissioner must refer disputes over its disbursement to the Tribunal.[20]
[20] Residential Tenancies Act 1995 (SA) s 63(5a)(a).
Part 4 of the RTA regulates the mutual rights and obligations of the landlord and tenant by:
· prescribing information that must be provided by landlords to tenants and dealing with the form and cost of preparing a residential tenancy agreement;[21]
[21] Division 1.
· prohibiting discrimination against tenants with children;[22]
[22] Division 2.
· prescribing how rent is to be paid and records kept;[23]
[23] Division 3.
· abolishing distress for rent;[24]
[24] Division 3.
· providing for the payment and receipts of bonds by the Commissioner;[25]
[25] Division 4.
· providing statutory rights to vacant possession and quiet enjoyment for a tenant under a residential tenancy agreement;[26]
[26] Division 5.
· making provision for the security of the premises and the landlord’s obligation as to cleanliness and repair of the premises;[27]
[27] Division 6 and 7.
· providing for the tenant’s obligation in relation to cleanliness, damage and loss to the premises;[28]
[28] Division 8.
· controlling the tenant’s conduct on the premises;[29] or
[29] Division 9.
· limiting the landlord’s right of entry.[30]
[30] Division 10.
Section 56 of the RTA empowers the Tribunal to give relief against excessive rent:
(1)The Tribunal may, on application by a tenant, declare that the rent payable under a residential tenancy agreement is excessive.
(2) In deciding whether the rent payable under a residential tenancy agreement is excessive, the Tribunal must have regard to—
(a) the general level of rents for comparable premises in the same or similar localities; and
(b) the estimated capital value of the premises at the date of the application; and
(c) the outgoings for which the landlord is liable under the agreement; and
(d) the estimated cost of services provided by the landlord and the tenant under the agreement; and
(e) the nature and value of furniture, equipment and other personal property provided by the landlord for the tenant’s use; and
(f) the state of repair and general condition of the premises; and
(fa) the estimated cost of goods and services provided under any domestic services agreement collateral to the residential tenancy agreement; and
(fb) if the rent was purportedly increased under section 55(2a)—whether the tenant was put under undue pressure to agree to the increase; and
(g) other relevant matters.
(3)If the Tribunal finds, on an application under this section, that the rent payable under a residential tenancy agreement is excessive, the Tribunal may, by order—
(a) fix the rent payable for the premises and vary the agreement by reducing the rent payable under the agreement accordingly; and
(b) fix a date (which cannot be before the date of the application) from which the variation takes effect; and
(c) fix a period (which cannot exceed one year) for which the order is to remain in force.
(4) The Tribunal may, on application by the landlord, vary or revoke an order under this section if satisfied that it is just to do so.
(5) If, while an order remains in force under this section, a landlord asks for or receives rent for the premises to which the order relates exceeding the amount fixed by the order, the landlord is guilty of an offence.
Maximum penalty: $2 500.
The power to declare rent to be excessive is a power to abrogate pre‑existing contractual and proprietary rights and interests and declare new rights and obligations. However, what would otherwise have been a broad quasi‑legislative power or arbitral discretion is substantially narrowed by s 56(2) of the RTA. The prescriptions therein require first a valuation exercise of a kind which courts often undertake, and then an evaluative judgment on the proportionality between the rent charged and the rental value of the premises.
The Tribunal is also conferred a discretion to vary other terms of a residential tenancy agreement by s 76 of the RTA:
76—Harsh or unconscionable terms
(1)The Tribunal may, on application by a tenant, make an order rescinding or varying a term of a residential tenancy agreement if satisfied that the term is harsh or unconscionable.
(2)On making an order under subsection (1), the Tribunal may make consequential changes to the residential tenancy agreement or another related document.
The discretion conferred by s 76 is not at large. The statutory concept of unconscionability has its roots in equity and s 76 has its analogue in the competition and consumer legislation of this State[31] and the Commonwealth.[32]
[31] Fair Trading Act 1987 (SA) Part 3, Division 1, which applies the Australian Consumer Law.
[32] Competition and Consumer Act 2010 (Cth) Schedule 2, ss 20-21.
Part 5 of the RTA deals with termination of residential tenancy agreements. Section 80 of the RTA provides for termination of a tenancy by a notice given by the landlord:
80—Notice of termination by landlord on ground of breach of agreement
(1)If the tenant breaches a residential tenancy agreement, the landlord may give the tenant a written notice in the form required by regulation—
(a) specifying the breach; and
(b) informing the tenant that if the breach is not remedied within a specified period (which must be a period of at least seven days) from the date the notice is given then—
(i) the tenancy is terminated by force of the notice; and
(ii)the tenant must give up possession of the premises on or before a day specified in the notice (which, subject to subsection (2)(c), must be at least seven days after the end of the period allowed for the tenant to remedy the breach).
(2) If notice is given under this section on the ground of a failure to pay rent—
(a) the notice is ineffectual unless the rent (or any part of the rent) has remained unpaid in breach of the agreement for not less than 14 days before the notice was given; …
However, by s 80(4) of the RTA, a tenant may apply to the Tribunal for relief from the statutory consequence of a failure to remedy a breach:
(4)The tenant may at any time after receiving a notice under this section and before giving vacant possession to the landlord, apply to the Tribunal for an order—
(a) declaring that the tenant is not in breach of the residential tenancy agreement, or has remedied the breach of the agreement, and that the tenancy is not liable to be terminated under this section; or
(b) reinstating the tenancy.
(5)If the Tribunal is satisfied that a tenancy has been validly terminated under this section, but that it is just and equitable to reinstate the tenancy (or would be just and equitable to reinstate the tenancy if the conditions of the order were complied with), the Tribunal may make an order reinstating the tenancy.
(6)An order reinstating the tenancy under this section may be made on conditions that the Tribunal considers appropriate.
(7)On an application for an order reinstating the tenancy, the Tribunal may make alternative orders providing for reinstatement of the tenancy if specified conditions are complied with but, if not, ordering the tenant to give up possession of the premises to the landlord.
We shall shortly see that subparagraph (e) of s 110(1) expressly empowers the Tribunal to make a declaration on the validity of a termination of a tenancy. That power is, on its face, referable to s 80(4) of the RTA. The function conferred on the Tribunal by s 80(4) of the RTA is an adjudicative one, namely, the application of pre-existing legal rights and obligations to the factual circumstance that it finds. The discretion conferred by s 80(5) of the RTA is similar to the equitable remedy of relief against forfeiture; the discretion must be exercised within reasonably confined parameters. As shall be seen shortly, subparagraph (f) of s 110(1) expressly empowers the Tribunal to reinstate a tenancy. That power is, on its face, referable to s 80(5) of the RTA.
Section 87 of the RTA empowers the Tribunal to terminate a tenancy on an application of a landlord without a notice first being given:
87—Termination on application by landlord
(1)The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for possession of the premises if satisfied that—
(a) the tenant has committed a breach of the residential tenancy agreement; and
(b) the breach is sufficiently serious to justify termination of the tenancy1.
(1a)The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for possession of the premises if satisfied that—
(a) the tenant has failed to pay rent in breach of the residential tenancy agreement; and
(b) on at least 2 occasions in the 12 month period preceding the breach—
(i)the tenant was given a notice under section 80 of a breach of the agreement on the ground of a failure to pay rent; and
(ii) the notice was not ineffectual within the meaning of section 80(2).
(1b)On an application under subsection (1a), the Tribunal may make alternative orders providing for the tenant to comply with specified conditions in relation to the payment of rent under the agreement.
(2)The Tribunal may, on application by a landlord, terminate a residential tenancy and make an order for immediate possession of the premises if the tenant or a person permitted on the premises with the consent of the tenant has, intentionally or recklessly, caused or permitted, or is likely to cause or permit—
(a) serious damage to the premises; or
(b) personal injury to—
(i) the landlord or the landlord's agent; or
(ii) a person in the vicinity of the premises.
Note—
1A tenancy may be terminated by a notice under section 80 if the tenant fails to remedy a breach after being required to do so by the landlord. This alternative procedure may be appropriate if (for example) the breach is not capable of remedy.
The powers conferred by ss 87(1), (1a) and (2) are judicial. The power conferred by s 87(1b) of the RTA is in the nature of relief against forfeiture and is similar to the power conferred by s 80(5) of the RTA.
It is convenient here to contrast ss 80 and 87 of the RTA with s 87 of the NSW Act:
87 Breach of agreement
(1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.
(2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.
(3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.
(4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:
(a) the tenant has breached the residential tenancy agreement, and
(b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
(c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(5)In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:
(a) the nature of the breach,
(b) any previous breaches,
(c) any steps taken by the tenant to remedy the breach,
(d) any steps taken by the landlord about the breach,
(e) the previous history of the tenancy.
(6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.
The discretion exercised under s 87 of the NSW Act is not conferred in terms of what is ‘just and equitable’, but the considerations prescribed by s 87(5) of the NSW Act are calculated to have a similar effect. Both discretions are informed by the principles developed in equity for relief against forfeiture. They are not qualitatively different.
Other provisions of Division 4 of Part 5 of the RTA provide for termination based on hardship, domestic abuse or if the tenant’s conduct is unacceptable. Those provisions authorise the Tribunal to abrogate pre-existing rights and obligations. I accept that they have no analogue in the common law or equitable jurisdictions of the courts of general jurisdiction of this State. I doubt that the powers conferred by Division 4 are judicial in nature. Accepting for present purposes that they are not, the conferral of arbitral powers of that kind on the Tribunal may affect whether it is a court or not, but cannot affect the characterisation of the powers exercised in this case.
Division 6 of Part 5 deals with the repossession of premises.
Section 93 of the RTA provides:
93—Order for possession
(1) If a residential tenancy is terminated by notice of termination under this Act or, in the case of a tenancy under which the South Australian Housing Trust is landlord, under the residential tenancy agreement, the landlord may apply to the Tribunal for an order for possession of the premises.
Note—
The landlord may not make the application if the notice of termination is ineffectual under section 92A.
(2) If the Tribunal is satisfied that the tenancy has been terminated, the Tribunal may make an order for possession of the premises.
(3) The order for possession will take effect on a date specified by the Tribunal in the order, being a date not more than seven days after the date of the order unless the operation of the order for possession is suspended1.
(4) However, if the Tribunal, although satisfied that the landlord is entitled to an order for possession of the premises, is satisfied by the tenant that the grant of an order for immediate possession of the premises would cause severe hardship to the tenant, the Tribunal may—
(a) suspend the operation of the order for possession for up to 90 days; and
(b) extend the operation of the residential tenancy agreement until the landlord obtains vacant possession of the premises from the tenant.
(4a) In extending the operation of the residential tenancy agreement, the Tribunal may make modifications to the agreement that it considers appropriate (but the modifications cannot reduce the tenant's financial obligations under the agreement).
(5) If the tenant fails to comply with an order for possession, the landlord is entitled to compensation for any loss caused by that failure.
(6) The Tribunal may, on application by the landlord, order the tenant to pay to the landlord compensation to which the landlord is entitled under subsection (5).
Note—
1 See subsection (4).
The power conferred on the Tribunal by s 93 is to make an order of a kind the common law courts have long, and almost exclusively, had the power to make in exercising their jurisdiction over real property by applying s 80 of the RTA to facts as it finds them to be. It does not involve the exercise of any power to modify or abrogate rights or interests founded in a residential tenancy agreement. The power to make an order for possession is not dependent on the Tribunal exercising such powers as it has to modify or abrogate rights.
Section 95 of the RTA provides that a person must not enter premises for the purposes of taking possession before or after a residential tenancy agreement unless a tenant abandons or voluntarily gives up possession, or the person is authorised to do so by operation of a statutory notice given under the RTA or by order of a court or the Tribunal.
Division 8 is entitled Enforcement of Orders for Possession. Section 99, in that Division, provides for the enforcement of orders for possession as follows:
99—Enforcement of orders for possession
(1)If an order for possession of premises is made by the Tribunal and the person in whose favour the order was made advises the Tribunal, within 14 days of the day on which the order takes effect or such longer period as the Tribunal may allow, that the order has not been complied with—
(a) the order is enforceable by a bailiff (and, subject to subsection (3), only by a bailiff); and
(b) the bailiff must enforce the order as soon as is practicable after the Tribunal is advised that it has not been complied with.
(2)A bailiff enforcing an order for possession of premises may enter the premises, ask questions and take all steps as are reasonably necessary for the purpose of enforcing the order.
(3)A police officer must, if requested by a bailiff, assist the bailiff in enforcing an order for possession.
(4)In the exercise of the powers conferred by this section a bailiff may use the force that is reasonable and necessary in the circumstances.
(5)A person must not hinder or obstruct a bailiff in the exercise of the powers conferred by this section.[33]
[33] Section 121 of the NSW Act provides that the principal registrar of the Tribunal may, ‘on the application of a person in whose favour an order for possession was made, issue a warrant for possession’, authorising a sheriff’s officer to ‘enter specified residential premises and give possession to the person specified in the warrant’.
Maximum penalty: $2 500.
…
The effect of s 99(1) of the RTA is that an order for possession made by the Tribunal is a final adjudication of the tenancy dispute, because that statutory provision commands the bailiff to enforce (must enforce) the order on notification that it has not been complied with. No further judicial order or administrative act is needed to enliven the bailiff’s mandatory duty. For that reason, there can be no judicial review of the act of enforcement itself,[34] nor can any court enjoin the bailiff’s enforcement of the Tribunal’s order for possession, unless that order itself is impugned. If the validity of the Tribunal’s order is not challenged by judicial review, or appealed against on the merits, the bailiff’s enforcement cannot be stopped.
[34] The extent to which this Court may ensure compliance with the obligation to enforce 'as soon as is practicable' imposed by s 99(1)(a) and the limitation to do only what is 'reasonably necessary', fixed by s 99(2), does not arise on this appeal.
Subsections 99(2) and (4) confer an immunity on the bailiff for what might otherwise be a trespass whilst he or she takes all steps ‘as are reasonably necessary’ to enforce the order. Subsection 99(5) of the RTA is not itself an enforcement mechanism but aids the bailiff’s enforcement by criminalising any obstruction.
To say that a Tribunal’s determination is final is, for practical purposes, the same as saying that it enforces its own decisions. The enforcement of the judgments of the common law courts was the responsibility of the Sheriff. Even though the Sheriff was historically an officer of the Crown, he was bound, by his very office, to act ministerially in the enforcement of court orders.[35]
[35] In A Practical Treatise on the Office of Sheriff, 2nd Edition (1848) at 3, William Watson summarises the Sheriff’s function in enforcing court orders as follows:
2dly, In his ministerial capacity, the sheriff is bound to execute within his county or bailiwick, all process issuing from the queen’s superior courts of justice. On bailable process, he is to execute the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; and when it is determined, he must execute the judgment of the court. In criminal matters, he also arrests and imprisons; he returns the jury; he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. …
At 64-65, concerning the execution of writs:
In the execution of writs, the sheriff is the known, public, and responsible officer of the court, whose process he is bound to execute, and is justified in the execution of. A bailiff of a liberty, we have seen, does not derive his authority to execute a writ within his liberty immediately from the court, for he is not the officer of the court; therefore if the bailiff of a liberty, who hath execution and return of all writs therein, arrest a defendant on process immediately directed to him, he will be a trespasser. The writ should, in such a case, be directed to the sheriff of the county, who provides for its execution in the manner already pointed out in the fourth chapter. …
(Citation omitted)
At 242, concerning the writ of fieri facias:
The writ of fieri facias is a writ judicial, that leith for him who hath recovered any debt or damages in the queen’s courts, which writ is directed to the sheriff of the county where the venue is laid, and thereby the sheriff is commanded to levy the debt or damages, together with interest from the time when the judgment was entered up, of the goods and chattels of the person against whom the recovery is had, and to have that money and interest, and the writ itself, before the queen at Westminster, or wheresoever, &c, on the return day (if made returnable on a particular day), or immediately after the execution thereof.
(Citation omitted)
In Ex parte Woo Tin, Darley CJ explained that the enforcement of judicial orders was a ‘sacred duty’, constitutionally entrusted to the executive through the courts’ ‘common law attendant the sheriff’: [36]
[36] (1888) 9 LR (NSW) 493 at 494.
The constitution of our country does not provide the Judges with a separate staff of officers for the purpose of enforcing obedience to the decrees and judgments of the Court. The constitution casts this duty upon the executive, and never before in the history of any British community, so far as our knowledge extends, has this sacred duty been disregarded. We cannot do better than refer to some observations made by that profound jurist, our late and much deplored Chief Justice, Sir James Martin, in the case of the Evening News, where he says :- “What are such Courts (that is the Supreme Courts) but the embodied force of the community whose rights they are appointed to protect? They are not associations of a few individuals, claiming on their own personal account special privileges and peculiar dignity by reason of their position. A Supreme Court like this, whatever may be thought of the separate members composing it, is the appointed and recognised tribunal for the maintenance of the collective authority of the entire community. The enforcement of all those rules which immemorial usage has sanctioned for the preservation of peace and order, and for the definition of rights between man and man, is entrusted to its keeping. Every new law made by the Legislature comes under its care, and relies upon it for its application. Without armed guards, or any ostentatious display—with nothing but its common law attendant, the sheriff, and its humble officials, the court-keepers and tipstaffs—it derives its force from the knowledge that it has the whole power of the community at its back. This is a power unseen, but efficacious and irresistible, and on its maintenance depends the security of the public.”
(Citation omitted)
The office of Sheriff is now a statutory one. The Sheriff is appointed under s 21A of the Courts Administration Act 1993 (SA), but is an officer of the Supreme Court.[37] It is the statutory duty of the Sheriff to execute, or cause to be executed, all civil and criminal process issued by the Courts.[38]
[37] Sheriff’s Act1978 (SA) s 5.
[38] Sheriff’s Act1978 (SA) s 8.
Bailiffs are appointed by the Tribunal under the SACAT Act:
89A—Bailiffs:
(1)The President may appoint a person to be a bailiff.
(2) The office of bailiff may be held (but may not need to be held) by—
(a) a person employed in a public sector agency; or
(b) a person appointed under the Courts Administration Act 1993 or the Sheriff's Act 1978.
(3)The regulations may prescribe fees to be paid in respect of any action taken by a bailiff (and provide for the recovery or enforcement of such a fee).
(4)A bailiff (and, if relevant, a police officer assisting a bailiff) incurs no civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out official functions.
The Tribunal’s bailiffs are the equivalent of Sheriff’s officers for the enforcement of the Tribunal’s orders. The effect of s 99(1) of the RTA is that the bailiff has a mandatory duty to enforce an order for possession made by the Tribunal. More particularly, the existence of an order of the Tribunal is both necessary and sufficient authority for the bailiff to act. No superior court on judicial review, and no court in collateral proceedings can interfere with, or impeach the actions of, a bailiff made in accordance with a valid order of the Tribunal. In that sense, orders for possession made by the Tribunal are immediately enforceable. It may be accepted that an invalid possession order may be set aside by this Court in its supervisory jurisdiction, but all courts of limited jurisdiction are subject to review on the grounds of legality. The Tribunal’s orders are nonetheless final and binding, and enforceable without any further order or judicial proceeding.
Section 110 of the RTA confers specific powers on the Tribunal. It provides:
110—Powers of Tribunal
(1) The Tribunal may, on application by a party to a tenancy dispute—
(a) restrain an action in breach of this Act, a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(b) require a person to comply with an obligation under this Act, a residential tenancy agreement, a rooming house agreement or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(c) order a person to make a payment (which may include compensation) under this Act, a residential tenancy agreement, a rooming house agreement or a collateral agreement or for breach of this Act, a residential tenancy agreement, a rooming house agreement, or a collateral agreement; or
(d) relieve a party to a residential tenancy agreement, a rooming house agreement or a collateral agreement from the obligation to comply with a provision of the agreement; or
(e) terminate a residential tenancy or rooming house agreement or declare that a residential tenancy or rooming house agreement has, or has not, been validly terminated; or
(f) reinstate rights under a residential tenancy agreement or rooming house agreement that have been forfeited or have otherwise terminated; or
(g) require payment of rent into the Fund until conditions stipulated by the Tribunal have been complied with; or
(h) require that rent paid into the Fund be paid out and applied as directed by the Tribunal; or
(i) require that a bond (including a bond under Part 7) paid into the Fund be paid out and applied as directed by the Tribunal; or
(j) require a tenant or a rooming house resident to give up the possession of premises to the landlord or rooming house proprietor; or
(k) make orders to give effect to rights and liabilities arising from the assignment of a residential tenancy agreement; or
(l) exercise any other power conferred on the Tribunal under this Act; or
(m) do anything else necessary or desirable to resolve a tenancy dispute.
(2)The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury.
The Attorney-General contended that s 110 of the RTA confers wide, free-ranging statutory powers which are not anchored to the preceding provisions and therefore confer wide discretions which are not confined by the considerations to which I have referred. I reject that submission.
The powers conferred by subparagraphs (a)-(c), (e), (g)-(i) and (k) are judicial in nature exercisable in the adjudication of controversies over rights and obligations, contractual or statutory, and over proprietary interests, in tenancy claims. They are powers similar to the powers of the Tribunal under s 187 of the NSW Act.[39] The power in subparagraph (d) and, on some occasions, subparagraph (f), may be exercised in the jurisdiction conferred by Division 4 of Part 5 and ss 56 and 76 of the RTA, and is confined by the considerations disclosed by the text, context and purpose of those provisions discussed in [28], [30], [32] and [34] above. Those powers are not conferred by s 187 of the NSW Act because the NSW Act does not have provisions like ss 56 and 76 of the RTA.
[39] Section 187 of the NSW Act provides that the following orders may be made by Tribunal:
(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders:
(a) an order that restrains any action in breach of a residential tenancy agreement,
(b) an order that requires an action in performance of a residential tenancy agreement,
(c) an order for the payment of an amount of money,
(d) an order as to compensation,
(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,
(f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,
(g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,
(h) an order directing a landlord, landlord’s agent or tenant to comply with a requirement of this Act or the regulations,
(i) a termination order or an order for the possession of premises,
(j) an order directing a landlord or landlord’s agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.
(2) Without limiting the Tribunal’s power to make an order as to compensation, the Tribunal may order compensation to be paid for the following:
(a) loss of rent,
(b) any other breach of a residential tenancy agreement,
(c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.
(3) An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.
(4) The Tribunal must not make an order for:
(a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or
(b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.
The power in subparagraph (m) is ancillary.
Section 99 of the RTA may be contrasted with s 89 of the SACAT Act, which deals with the enforcement of the Tribunal’s monetary orders:
89—Enforcement of decisions and orders of Tribunal
(1)If the Tribunal makes a monetary order, the amount specified in the order may be recovered in the appropriate court, by a person recognised by the regulations for the purposes of this subsection, as if it were a debt.
(2)A person who contravenes or fails to comply with an order of the Tribunal (other than a monetary order) is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 2 years.
(3) In this section—
appropriate court means—
(a) in relation to an order of the Tribunal that is a monetary order for an amount that does not exceed the amount that represents the jurisdictional limit of the Magistrates Court for a monetary claim founded on contract—the Magistrates Court;
(b) in any other case—the District Court.
The Tribunal’s monetary orders are not final and not enforced by it because, a further step, the judgment of a court of general jurisdiction on a quasi-debt claim, is necessary before the order can be enforced as a debt by the Sheriff acting under the Enforcement of Judgments Act 1991 (SA). In that separate proceeding, the validity of the Tribunal’s order may be ‘brought into question’. The Court may also stay execution of any judgment it makes.[40]
[40] Enforcement of Judgments Act 1991 (SA) s 17.
The ‘borderland’ between judicial power and administrative authority
I turn next to a consideration of the decisions of the High Court which have chartered the border between judicial power and administrative authority.
In Huddart, Parker and Co Pty Ltd v Moorehead, Griffiths CJ described judicial power as follows:[41]
[41] (1909) 8 CLR 330 at 357.
Apart from these considerations, I am of opinion that the words “judicial power” as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
In Federal Commissioner of Taxation v Munro, Isaacs J recognised that the very same process may be either judicial or executive:[42]
[42] (1926) 38 CLR 153 at 175-176 and 178-179.
But there are many functions which are either inconsistent with strict judicial action, as the arbitral functions in Alexander's Case, or are consistent with either strict judicial or executive action. If inconsistent with judicial action, the question is at once answered. If consistent with either strictly judicial or executive action, the matter must be examined further. … The very same process may thus, in some instances, be either judicial or executive.
…
... some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another. An appropriation of public money, a trial for murder, and the appointment of a Federal Judge are instances. Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government. Rules of evidence, the determination of the validity of parliamentary elections, or claims to register trademarks would be instances of this class. The latter class is capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances. Deny that proposition, and you seriously affect the recognized working of representative government. …
(Citations omitted)
In Silk Bros. Proprietary Ltd v State Electricity Commissioner Victoria (Silk Bros.),[43] the High Court held invalid a regulation made under the National Security (Landlord and Tenant) Regulations (the Regulations), which purported to confer exclusive jurisdiction to determine applications by landlords to recover possession of premises on the Fair Rents Board. Importantly, Regulation 16 of the Regulations made orders of the Board enforceable as if they were orders of a court. Associated regulations authorising the Board to fix fair rentals were not impugned and the offending regulations were severed. No argument was put, or considered, that the wide power to fix fair rents affected the character of the power to determine possession applications. The Court found that the power was judicial and could therefore not be conferred on the Board which was not a court:[44]
[43] (1943) 67 CLR 1.
[44] Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 8-9.
The effect of reg. 15 is to prevent any action for recovery of possession of land in the courts which normally deal with such matters and to confine the power to make an order for recovery of possession to Fair Rents Boards. Power to make an order in favour of a landlord against a tenant for the recovery of the possession of leased land is plainly a judicial power according to any definition of judicial power which can be suggested. In Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, the Privy Council adopted as one of the best definitions of judicial power that given by Griffith C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead:—“I am of opinion that the words ‘judicial power’ as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.” The power which reg. 15 purports to confer on a Fair Rents Board is a power to decide a controversy between landlord and tenant relating to property. The Fair Rents Board is expressly given power to make a binding and authoritative decision: see reg. 15 (9), which provides that a Fair Rents Board shall have all the powers possessed by courts of summary jurisdiction and that its decision shall not be subject to appeal. Reg. 16 expressly provides that any order made by a Board under these Regulations for the recovery of premises, or for the ejectment of a tenant, may be enforced in the same manner as if the order had been made by a court which, but for the Regulations, would have had jurisdiction to make the order. Thus the Regulations purport to invest Fair Rents Boards with judicial power.
(Citations omitted)
In The Queen v Davison[45] (Davison), the High Court held invalid certain provisions of the Bankruptcy Act 1950 (Cth) (the Bankruptcy Act) on the ground that they conferred judicial power on Deputy Registrars in Bankruptcy, who were not members of a court constituted under ss 71 and 72 of the Constitution, to make voluntary sequestration orders. Dixon CJ and McTiernan J framed the question before the Court to be whether, under the Bankruptcy Act, a voluntary sequestration depends on the making of a judicial order, i.e. an order which, ‘by its nature or description, or by the character given to it by the legislation involves an exercise of the judicial power of the Commonwealth’.[46] Dixon CJ and McTiernan J continued:[47]
[45] (1954) 90 CLR 353.
[46] The Queen v Davison (1954) 90 CLR 353 at 366.
[47] The Queen v Davison (1954) 90 CLR 353 at 367.
The definition given by Griffith C.J. to which Lord Simonds refers is as follows:—“I am of opinion that the words ‘judicial power’ as used in s. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action”. Another well-known definition is that given by Palles C.B. In The Queen v. Local Government Board, the learned Chief Baron said: “I have always thought that to erect a tribunal into a ‘Court’ or ‘jurisdiction’, so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depends upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind. The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorizing it is judicial”.
(Emphasis in original; citations omitted)
Dixon CJ and McTiernan J then observed that, even though the determination of existing rights, as distinguished from the creation of new ones, in quelling a controversy submitted by the parties, were commonly thought to be necessary elements of the exercise of judicial power, they were not present in many proceedings commonly heard and determined by common law courts. Matters of that kind included proceedings:
·for the administration of trust assets;
·in matrimonial cases;
·for guardianship and maintenance;
·in parens patriae jurisdiction;
·in corporate insolvency; and
·in probate.
As to the significance of the method of enforcement of orders, Dixon CJ and McTiernan J observed:[48]
[48] The Queen v Davison (1954) 90 CLR 353 at 368.
Again the enforcement of a judgment or judicial decree by the court itself cannot be a necessary attribute of a court exercising judicial power. The power to award execution might not belong to a tribunal, and yet its determinations might clearly amount to an exercise of the judicial power. Indeed it may be said that an order of a court of petty sessions for the payment of money is an example. For warrants for the execution of such an order are granted by a justice of the peace as an independent administrative act.
I observe here that the apparent historical anomaly of courts of summary jurisdiction was a function of the ad hoc constitution of courts of summary jurisdiction. In South Australia, summary courts have been replaced by the Magistrates Court sitting as a continuous court of record. Nonetheless, even then justices of the peace acted ministerially and were duty-bound to issue warrants for the enforcement of the orders of courts of summary jurisdiction. The availability of judicial review or an appeal does not deny the finality of the trial court’s judgment. Nor do they compromise the immediate enforceability of the judgment, because they attack the judgment and not its immediate enforcement.
Dixon CJ and McTiernan J observed that some things may validly be done either in the exercise of judicial power or without the exercise of judicial power before continuing:[49]
[49] The Queen v Davison (1954) 90 CLR 353 at 368-369.
But to say that a thing may be done in the course of the exercise of judicial power is not to say that it may not be done without the exercise of judicial power. The legislature may commit some functions to courts falling within Chapter III although much the same function might be performed administratively. In the judgment of this Court in Queen Victoria Memorial Hospital v Thornton, the observation occurs:—“Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers”.
It is this double aspect which some acts or functions may bear that makes it so difficult to define the judicial power. The appointment of a new trustee may be regarded as something to be done in the course of the judicial administration of trusts or assets. But there is no reason why it should not be treated from another point of view and regarded as an act to be done by an administrative body authorized to exercise some governmental control, for example over public charities. An extreme example of a function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power is that of making procedural rules of court.
(Citations omitted)
Dixon CJ and McTiernan J concluded that the legislative assimilation of the Registrar’s sequestration orders with the final and enforceable orders of the Federal Court of Bankruptcy rendered the power exercised judicial:[50]
[50] The Queen v Davison (1954) 90 CLR 353 at 369-371.
…The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss. 71 and 72 of the Constitution and this may be true also of some duties or powers hitherto invariably discharged by courts under our system of jurisprudence but not exactly of the foregoing description. But there are many functions or duties that are not necessarily of a judicial character but may be performed judicially, whether because they are incidental to the exercise of judicial power or because they are proper subjects of its exercise. How a particular act or thing of this kind is treated by legislation may determine its character.
In the present case the thing done is the making of an order characteristic of courts. The primary power to make the very order is entrusted to the court established under ss 71 and 72. The power of the registrar is secondary and in a sense derivative. Further by the definition of the expression “the Court” the legislature has made it clear that for certain purposes he is to enjoy the very powers conferred upon the court and is to act exactly as the court. This he is to do, although under the peculiar arrangements adopted to meet the decision in Le Mesurier v. Connor, the registrar is no part of the court and is not an officer of the court. It is clear that s 24(1)(a) of the Bankruptcy Act confers upon the registrar a power which is also exercisable by the court and a power to be exercised by him in the same way and by the same form of instrument as would be used by the judge. He is, in other words, the substitute for the judge. Within the meaning of s 54 he is by definition “the Court”. By definition also he is the court within the meaning of s 57. It is therefore his function to decide whether good and sufficient cause exists for refusing to make a sequestration order. Although no doubt it is exceptional for difficulties to arise under this heading, they are by no means unknown; see Re Bachelor; Re Betts; Ex parte Official Receiver; Re Hancock. When s 24(1) is construed with the definition of “the Court” and applied to ss 54 and 57, it becomes clear that the function of making an order of sequestration is treated as judicial and is confided to the registrar in the same character as it is confided to the court. In other words it is the intention of the legislature that the registrar should make an order operating as an order of the court. That is exactly what in fact he did in the present case. For upon its face the order is one which could not be made except by a court constituted as it is in conformity with s 71 and s 72 of the Constitution.
(Citations omitted)
In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (Tasmanian Breweries), Kitto J observed that it has not been possible to exclusively define judicial power and, quoting Labour Relations Board of Saskatchewan v John East Iron Works Ltd,[51] that there is a ‘borderland in which judicial and administrative functions overlap’, so that for reasons which may depend on general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary ‘may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court.’ [52]
[51] [1949] AC 134 at 148.
[52] (1970) 123 CLR 361 at 373.
Nonetheless, Kitto J essayed the following, often cited, general exposition of judicial power:[53]
[53] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375.
Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.
From that passage I would draw attention first to his Honour’s recognition that the finality of a judicial determination lies in its establishment of a charter by reference to which the once disputed rights and interests of the parties must forever be settled. Secondly, Kitto J recognised that the charter operated only for so long as ‘it stands’, thereby recognising that it may be set aside by another judicial process such as an appeal. Thirdly, his Honour recognised that processes which do not finally resolve inter‑party disputes, by applying existing law to facts as found, are not generally judicial in nature.
In The Queen v Quinn; Ex Parte Consolidated Foods Corporation[54] (Quinn), the High Court considered the validity of s 23(1) of the Trademarks Act 1955 (Cth), which empowered both the Registrar of Trademarks and the High Court to order the removal of a trademark from the register on the ground that it had been registered without a good faith intention to use it, or that it had not been used for a prescribed period. The High Court held that the power was not exclusively judicial in nature and had therefore validly been conferred on the Registrar of Trademarks as an administrative official.
[54] (1977) 138 CLR 1.
Jacobs J explained that Parliament’s intention to confer only an administrative power was not determinative:[55]
[55] The Queen v Quinn; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1 at 9.
But what Parliament intended is not conclusive on such a matter. It is still necessary to determine whether the power is of a kind which is capable of being either judicial or administrative. The question whether the Parliament disclosed an intention that the power be administrative and the question whether the power is capable of being administrative, although they are distinct questions, involve a consideration of the legislation, its operation and effect.
Jacobs J noted that the parties accepted that the power to register a trademark may be administrative, but observed that whether deregistration, and the consequential loss of the property right in it, was necessarily an exercise of judicial power was a different question.[56]
[56] The Queen v Quinn; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1 at 10.
There is no doubt that the determination of these matters can be the subject matter of judicial power if Parliament chooses to make them so (Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd), as it has done in the nomination of the Appeal Tribunal. But are they necessarily the subject of judicial power, so that they fall within the first class of case in the classification made by Isaacs J.? I do not think so. The rights involved spring from the statute which governs their creation and continuance. The Registrar is given the administration of the statute. It is his administrative duty to keep the register in the state which the legislature has prescribed. In so doing he must make decisions not only upon what should or should not be placed but also upon what should remain on the register in accordance with the statutory prescriptions.
The applicant has been able to point to many features of the Registrar’s function under s. 23 which are commonly features of an exercise of judicial power and submits that the cumulative force of those features compels a conclusion that the power is judicial. Since the power, when exercised on an appeal (so called) under s. 23 (7), is a judicial power, it is to be expected that there will be an accumulation of features which can often be taken to indicate that a power is a judicial power. But the question is whether the features are inconsistent with the power, when it is vested in an administrative officer, being an administrative power; and the answer is that none of the features is exclusively related to judicial power and they are therefore not inconsistent with administrative power.
(Citations omitted)
The chameleon metaphor often employed to explain why some powers may be exercised by a court or an administrative tribunal, notwithstanding the separation of federal and executive powers, can be traced to the judgment of Aickin J in Quinn:[57]
[57] (1977) 138 CLR 1 at 18.
The task committed to the Registrar by s. 23 of the Act is not wanting in the requirement that it should not depend on consideration of policy. The criteria laid down by the section show that the function is to be exercised by the finding of facts and the application thereto of a standard prescribed by law, and not according to “its own idiosyncratic conceptions and modes of thought” to use the words of Kitto J. in Reg. v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd.
These considerations would have disposed me to the view that the powers given by s. 23 are judicial in the true sense and thus proper to be conferred on the High Court but not on the Registrar, notwithstanding the established doctrine that some functions may, chameleon like, take their colour from their legislative surroundings or their recipient. In my opinion however this course is precluded by the decision of this Court in Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (“the Bayer Case”) which dealt with the provisions of the 1905 Act.
(Citations omitted)
Both the utility of, and the danger in, the use of metaphors in the law is well known. In her article ‘“A Rose By Any Other Name”: Judicial Use of Metaphors for New Technologies’, Stephanie Gore[58] observes:[59]
[58] Assistant Professor of Law, Florida State University College of Law.
[59] (2003) 2 Journal of Law, Technology & Policy 403 at 403.
It is now fairly established in cognitive science and linguistics that metaphors are an essential tool used to organise thought. It is human nature to reach for metaphors when trying to comprehend new concepts. Metaphors, however, may also selectively guide, or misguide, our cognitive processes. By emphasising one aspect of a concept, a metaphor may blind us to other aspects that are inconsistent with the metaphor.
The chameleon metaphor too has both its usefulness and limits. It should not be allowed to obscure the exposition of judicial and executive power in the earlier authorities. In the context of Chapter III of the Constitution and the separation of judicial power effected by it, the constitutional question is whether a power conferred on an administrative tribunal is of a kind that can only be conferred on a court. Only if the answer to that question is no can it be said that the power takes its colour from the tribunal on which it is conferred. Powers which can only be conferred on a court can never be chameleons. Conversely, there are some powers that can never be conferred on a federal court – those powers too can never be chameleons. Only those powers which, under the Constitution, might be exercised by either a court or an administrative tribunal, can be described as administrative powers when exercised by an administrative tribunal, and judicial powers when exercised by a court, and are therefore chameleons. However, in truth the nature of the power does not change. It remains a power that is judicial, but not exclusively so. In particular, it is not open to the legislature to ‘colour’ a power as administrative or judicial by its choice of the tribunal which will exercise the power. On the contrary, in the context of the question arising under Chapter III of the Constitution, it is a constitutional question whether the power is exclusively judicial, or exclusively administrative.
However, as Dixon CJ and McTiernan J explain in Davison, the way in which the subject matter of the power is defined, the process the legislature prescribes for the determination of the dispute, and the legislative mechanism for enforcement will affect the proper characterisation of the power. In this case, the relevant subject matter is the termination of a proprietary interest in land. That is a core matter of judicial power involving an adjudication over pre-existing rights and interests by applying the law to facts as found. The powers to grant relief to tenants are not qualitatively different to the powers exercised by courts in equity. It is doubtful that the subject matter of the power, if it falls within federal judicial power, could ever be reposed in an administrative tribunal.
The procedures of the Tribunal are flexible but follow in a general way the procedure which would be adopted by a court. The Tribunal may investigate the facts for itself, but the Commissioner’s powers are limited. Largely, the Tribunal would be dependent on material placed before it by the parties to the residential tenancies agreement. Critically, the RTA confers on the Tribunal the power to enforce its orders by the bailiffs appointed by it. The power therefore has all the appearance of a judicial power.
In Attorney-General for the Commonwealth of Australia v Alinta Limited and Others[60] (Alinta), the High Court held that the Takeovers Panel, constituted under the Corporations Act 2001 (Cth) (Corporations Act), did not exercise judicial power on an application made pursuant to s 657A of that Act to have circumstances surrounding a proposed acquisition of shares in a corporation declared unacceptable.
[60] (2008) 233 CLR 542.
The dispute in Alinta raised the issue, considered in Tasmania Breweries, in an amended statutory context. The High Court overruled a majority decision of the Full Court of the Federal Court and held that the power exercised by the Takeovers Panel was not judicial. Section 657A of the Corporations Act provided:
657A Declaration of unacceptable circumstances
(1)The Panel may declare circumstances in relation to the affairs of a company to be unacceptable circumstances. …
(2)The Panel may only declare circumstances to be unacceptable circumstances if it appears to the Panel that the circumstances:
(a) are unacceptable having regard to the effect of the circumstances on:
(i)the control, or potential control, of the company or another company; or
(ii)the acquisition, or proposed acquisition, by a person of a substantial interest in the company or another company; or
(b) are unacceptable because they constitute, or give rise to, a contravention of a provision of this Chapter or of Chapter 6A, 6B or 6C.
The Panel may only make a declaration under this subsection, or only decline to make a declaration under this subsection, if it considers that doing so is not against the public interest after taking into account any policy considerations that the Panel considers relevant. …
Section 657D(2) of the Corporations Act empowered the Panel to make any order that it thinks appropriate to:
(a) protect the rights or interests of any person affected by the circumstances; or
(b)ensure that a takeover bid or proposed takeover bid in relation to securities proceeds (as far as possible) in a way that it would have proceeded if the circumstances had not occurred; or
(c)specify in greater detail the requirements of an order made under this subsection; or
(d)determine who is to bear the costs of the parties to the proceedings before the Panel.
Hayne J concluded that the Panel did not exercise judicial power for the following reasons:[61]
[61] Attorney-General for the Commonwealth of Australia v Alinta Limited and Others (2008) 233 CLR 542 at [96]-[99].
[96]The features of the legislation in issue in Tasmanian Breweries which were identified in that case are also to be observed in the relevant provisions of the Corporations Act. The Panel is required to conclude whether a declaration of unacceptable circumstances should be made. If s 657A(2)(b) is engaged, the Panel must decide, along the way, whether there has been a contravention of a relevant provision of the Corporations Act. But if it does decide that there has been a contravention, the conclusion to which the Panel must ultimately come is whether identified circumstances should be declared unacceptable. In making a declaration, or orders consequent upon a declaration, the Panel does not create a charter for the observance of the rights and obligations that attach to the contravention. The Panel’s powers to make orders expressly exclude (s 657D(2)) the power to make “an order directing a person to comply with a requirement of Chapter 6, 6A, 6B or 6C”. The charter that is established by the Panel’s order is for the observance of the rights and obligations that are created in consequence of a declaration being made. For, if a declaration is made, an order is framed to prevent the consequences of what have been found to be unacceptable circumstances. The order is framed to prevent those consequences by “protect[ing] the rights or interests of any person affected by the circumstances” (s 657D(2)(a)) or by “ensur[ing] that a takeover bid or proposed takeover bid … proceeds (as far as possible) in a way that it would have proceeded if the circumstances had not occurred” (s 657D(2)(b)). The order constitutes the new charter of rights and obligations of the parties. And the Corporations Act “operates upon the order to give its provisions the force of law, and thus to alter the law for the future in relation to the particular case”.
[97]It is then for the courts in the exercise of judicial power to enforce the law as it has been framed by the Panel’s orders. There is what was identified in Brandy as “an independent exercise of judicial power” to give effect to the Panel’s orders.
[98]The orders of the Panel stand in sharp contrast with the determinations of the Human Rights and Equal Opportunity Commission considered in Brandy. By the provisions of the Racial Discrimination Act 1975 (Cth) in issue in Brandy, the Commission's determination, when registered as it had to be, was binding upon the parties and enforceable as an order of the Federal Court. But the determination remained the determination of the Commission and in no sense became the determination of the Federal Court. Under the relevant provisions of the Corporations Act, the binding effect of the orders of the Panel is determined by the Court which is called upon to decide whether orders should be made under s 657G to secure compliance with them or to decide whether there has been an offence committed under s 657F by a person contravening a valid order of the Panel.
[99]This analysis of the effect of the relevant provisions requires the conclusion that the Panel does not exercise the judicial power of the Commonwealth.
(Emphasis in original; citations omitted)
After so concluding, Hayne J added:[62]
[62] Attorney-General for the Commonwealth of Australia v Alinta Limited and Others (2008) 233 CLR 542 at [100].
[100] It is important, however, to notice one further consideration which strengthens the case for validity of the impugned provisions. Although the Corporations Act gives an order of the Panel the force of law and makes contravention of the Panel’s order an offence, an order of the Panel is open to challenge. It is open to direct challenge by proceedings under s 75(v) of the Constitution or proceedings seeking relief under s 39B of the Judiciary Act. No less importantly, an order of the Panel is open to collateral challenge in other judicial proceedings in which its valid making is an element in issue. That an order of the Panel may be challenged in these ways points away from a conclusion that the Panel exercises judicial power.
(Citation omitted)
The last cited paragraph appears to be directed at certain passages in the judgment of the majority of the Full Federal Court. In Australian Pipeline Ltd v Alinta Ltd and Others,[63] Gyles and Lander JJ referred to the criminal and civil penalty regimes applicable to breaches of the Panel’s orders as a method of enforcement. Respectfully, I would not so characterise those regimes. Rather, they provide for separate and discrete judicial proceedings in which the decisions of the Panel operate as a factum, or element, of liability. Moreover, the validity of the Panel’s order may be an issue in those proceedings. Gyles and Lander JJ stated:[64]
[63] (2007) 159 FCR 301.
[64] Australian Pipeline Ltd v Alinta Ltd and Others (2007) 159 FCR 301 at [410]-[411].
410The argument as to the availability of a collateral challenge to validity is elusive except where the statute expressly provides for an appeal or for judicial review. Otherwise, it is essentially circular. Such a challenge would always be available where an administrative body was invested with judicial power. In Brandy 183 CLR at 258-259, Mason CJ, Brennan and Toohey JJ said:
So, when A alleges that he or she has suffered loss or damage as a result of B’s unlawful conduct and a court determines that B is to pay a sum of money to A by way of compensation, there is an exercise of judicial power. The determination involves an exercise of such power not simply because it is made by a court but because the determination is made by reference to the application of principles and standards “supposed already to exist” (Prentis v Atlantic Coast Line (1908) 211 US 210 at 226, per Holmes J). And the determination is binding and authoritative in the sense that there is what has been described as an immediately enforceable liability of B to pay A the sum in question (See Rola Co (1944) 69 CLR 185 at 199 per Latham CJ). Consequently, even if the determination in such a case were to be made by an administrative tribunal and not by a court, the determination would constitute an exercise of judicial power, although not one in conformity with Ch III of the Constitution.
…
411The concept of a challenge on administrative law grounds to a decision of a body which is, in fact, exercising judicial power is odd. The possibility of such a challenge would not affect the nature of the function being performed or the power exercised any more than did the existence of a power of review in Brandy 183 CLR 245. As pointed out in that case, it is not necessary that a review take place or, in the present circumstances, that there be a collateral challenge. Furthermore, a collateral challenge on administrative law grounds could fail, leaving the enforceable determination intact. Once it is recognised that judicial power of a kind which cannot be conferred upon an administrative body has been conferred upon an administrative body, then the manner in which that power is to be exercised is irrelevant to the constitutional question.
(Emphasis in original)
On the other hand, Finkelstein J, in my respectful opinion correctly, explained:[65]
[65] Australian Pipeline Ltd v Alinta Ltd and Others (2007) 159 FCR 301 at [95].
95Finally, and perhaps most importantly, there is a point that is fatal to the argument that the Panel exercises judicial power. Its orders are not on any view “binding and authoritative”. This is not because they are subject to direct attack by judicial review and collateral attack in other proceedings (perhaps not by itself a decisive point). It is because the intervention of a court is required for their enforcement. The enforcement of an order by the Panel is covered by s 657G which provides that if a person contravenes or proposes to engage in conduct that would contravene an order “the Court may make any orders it considers appropriate to secure compliance with the Panel’s order, including (a) one or more remedial orders; and (b) an order directing a person to do, or to refrain from doing, a specified act”. That is, a Panel order requires an independent exercise of judicial power to give effect to the order. And the court may refuse to give a Panel order effect either for (albeit limited) discretionary factors or if it be shown that the Panel committed jurisdictional effort.
Accordingly, paragraph [100] of the reasons for judgment of Hayne J appears to be an elliptical criticism of the reasoning of the majority to the effect that the Panel’s decisions were final and enforceable because they might not effectively be challenged in judicial proceedings. However, paragraph [100] must be read against the well-accepted proposition that the availability of an appeal against, or judicial review of, an order of an inferior court, does not deny that the making of the order was an exercise of judicial power which, absent such a review, is immediately enforceable. That was the point made by all of the members of the High Court in Brandy in dismissing the Commonwealth’s contention that the availability of a review in the Federal Court of the Tribunal’s order meant that the power it exercised was not judicial. As Kirby J observed in Alinta:[66]
[66] (2008) 233 CLR 542 at [38].
[38]Likewise, the fact that relief is available under s 75(v) of the Constitution is not determinative. Where administrative bodies are established by federal legislation their members will necessarily be answerable to the constitutional writs. Limited accountability to the courts is universal to such cases. According to long-standing authority, the constitutional writs provided for in s 75(v) apply to office-holders in federal courts. This cannot therefore provide a criterion to differentiate essential judicial functions, so as to set them apart and bar them from discharge by non-judicial bodies.
(Citations omitted)
Kirby J conveniently summarised the considerations affecting the characterisation of the Panel’s powers as administrative or judicial as follows:[67]
[67] (2008) 233 CLR 542 at [40]-[44].
[40]First, whilst policy choices are inevitably involved in many decisions made in the courts, the broad policy criteria that the Act requires the Panel to address in discharging its functions are such as to be more appropriate to, and characteristic of, an administrative decision than a judicial decision. Thus, the criteria are stated in wide and substantially open-ended terms. Those terms go beyond the language in which judicial decision-making functions are typically conferred. This is not a conclusive point. But it is the right place to start in appreciating the essential character of the governmental functions involved in this case. They are not inherently judicial.
[41]Secondly, the limitation on the commencement of court proceedings, which weighed so heavily for the majority in the Full Court, is temporary, not permanent. It is neither absolute nor unrestricted. This is a partial answer to the understandable concern of the majority over the attempted exclusion of the courts from availability to resolve authoritatively disputes over the legal rights of parties caught up in a takeover dispute finally and conclusively. It is not decisive. But it tends to neutralise a significant feature supporting the majority's conclusion.
[42]Thirdly, the width of the Panel’s powers makes it clear that it is expected that the Panel, by its decisions, will create new rights and obligations and not simply determine conclusively (as a court might do) controversies over past suggested contraventions of the Act.
[43]Fourthly, contrary to the conclusion of the majority in the Full Court, the determination by the Panel of the rights and obligations of the contesting parties under s 657A(2)(b) of the Act remains no more than a “basis for determining what rights and obligations should be created in the future”. The Attorney-General of the Commonwealth correctly submitted that the decision by the Panel was a “criterion or factum” by reference to which legal norms are imposed and remedies provided for their enforcement. In every case it remains for the Panel to conclude whether or not the circumstances are “unacceptable”. For that conclusion to be reached, more is required than proof of a contravention of the Act, although in particular cases such proof may, in practice, be sufficient to result, without much more, in a conclusion of unacceptability.
[44]Fifthly, care has been taken in drafting the provisions of the Act to avoid any suggestion that the Panel enforces its own orders. It is left to the courts to make orders to ensure compliance with the Panel’s determinations. Necessarily, this involves the court concerned in a judicial decision, not a mere formality. From the earliest days of this Court, it has been recognised that it is a special feature of the exercise of the judicial power of the Commonwealth to carry a decision into effect as between the parties who bring the case before the relevant tribunal for decision. In many decisions, this feature of the legislative design has been regarded as an important consideration marking off the judicial power from other governmental powers. The dissenting judge in the Full Court was right to conclude that s 657F of the Act was insufficient to amount to an “enforcement mechanism”. This is a feature of the legislation supporting the conclusion that it is administrative and not judicial power that has been invoked.
(Citations omitted)
The authorities so far considered have turned largely on the scope and nature of the controversy and the method of its adjudication. The question of enforceability focussed on in Davison, and Alinta, was more fully considered in Brandy. The High Court there held that certain provisions of the Racial Discrimination Act 1975 (Cth) were invalid in that they vested federal judicial power in the Commission by mandating the registration of its orders in the Federal Court, and deeming those orders to be orders of the Federal Court. Mason CJ, Brannan and Toohey JJ, after referring to the judgment of Dixon CJ and McTiernan J in Davison, explained:[68]
[68] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258.
In that statement, the expression “judicial determination” means an authoritative determination by means of the judicial method, that is, an enforceable decision reached by applying the relevant principles of law to the facts as found.
Deane, Dawson, Gaudron and McHugh JJ discussed the nature of judicial power by reference to the subject matter of the dispute and how it is adjudicated before explaining that the enforceability of decisions may be a determinative factor when the nature of a power is otherwise equivocal:[69]
[69] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268.
However, there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers’ Federation of Australia v J W Alexander Ltd, Barton J said:
“It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.”
And in Federal Commissioner of Taxation v Munro, Isaacs J pointed out that the concept of judicial power includes enforcement: the capacity to give a decision enforceable by execution. It was this characteristic of judicial power which was emphasised by Latham CJ in Rola Co (Australia) Pty Ltd v The Commonwealth. He pointed to the fact that in Huddart, Parker & Co Pty Ltd v Moorehead Griffith CJ referred not only to the giving of a binding and authoritative decision as being indicative of the exercise of judicial power, but also spoke of such a decision being given by a tribunal “called upon to take action”.
(Citations omitted)
Deane, Dawson, Gaudron and McHugh JJ then explained why the availability of a review in the Federal Court did not deprive the Tribunal’s order of the necessary finality:[70]
[70] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 270.
The Commonwealth, intervening, submitted that by virtue of the review procedure provided by s 25ZAC the registration of a determination is the commencement of proceedings in the Federal Court so that if a determination becomes enforceable it is by reason of the adjudication of the Federal Court, that being a court constituted in accordance with Ch III of the Constitution and capable of exercising judicial power.
The plain answer to that submission is that a registered determination may not be subjected to review but has effect as an order of the Court from the moment of registration. True it is that it cannot be enforced pending the institution or completion of a review, but it remains an order of the Court. The right to review is exercisable only by a respondent to a determination. If he or she fails to apply for review within twenty-eight days, the determination becomes enforceable forthwith. The Commonwealth sought to counter this answer by submitting that the procedure is analogous to the entry of judgment by default, but the analogy cannot be sustained.
A judgment entered by default is nonetheless a judgment of the court whose rules provide for such a course. The circumstances in which judgment may be entered are prescribed by the court itself and the process is one which is commenced and brought to a conclusion in accordance with those rules. The circumstances in which a determination may be made by the Commission are prescribed by the Act and, except upon a review, the Federal Court is precluded from any consideration of those circumstances either upon the registration of a determination or in relation to its enforcement. The determination remains the determination of the Commission and in no sense becomes the determination of the Federal Court.
(Citation omitted)
The above expositions of judicial power show that it is multi-faceted. The following aspects of a power must be evaluated before it can be characterised as legislative, administrative or judicial:
1the subject matter of the controversy;
2whether the adjudication requires the tribunal to identify and then apply the existing law to facts found on the one hand or creates new rights and obligations;
3whether the proceedings are initiated by parties in dispute or by an institution on behalf of the public;
4the process by which facts are found, and the applicable laws identified or made; and
5whether the determination is directly enforceable by the tribunal, or other entities which must act ministerially on the one hand, or whether its enforcement depends on a further proceeding in another tribunal in which the tribunal decision may be challenged.
Some brief explication of each element is necessary. First, there are some controversies at the core of judicial power. They include disputes over existing proprietary, or contractual, rights and interests. The decision in Silk Bros. places applications by a lessor to recover possession of leased premises at the core of judicial power. Disputes over infringements of personal liberty and wellbeing also presumptively fall within the exercise of judicial power. Such disputes concern fundamental common-law rights long protected by judicial intervention, first from executive, and later, legislative encroachment. Of course, there are exceptions. For example, administrative tribunals or medical officers may order preventative and/or protective detention of persons who are suffering from mental or infective illnesses. Conversely, taxation, expenditure of public money, foreign affairs and defence are insusceptible to judicial determination. Falling in between those extremes, many disputes over new statutory rights and obligations, or rights and obligations under general law which have been modified by statute, may be resolved by administrative authority or an exercise of judicial power.
There is much overlap between the first element and the second – the nature of the determination. Controversies concerning existing private rights and interests, naturally demand an adjudicative process in which pre-existing legal rights, interests and obligations are identified and applied to the facts as found. That process is essentially judicial. On the other hand, the creation of new rights and obligations, and the abrogation or variation of existing ones, is generally an exercise of legislative or arbitral power. Arbitrations may apply to individuals or broader classes of persons, as is the case with the power to arbitrate industrial disputes. Legislation affects the rights and interests of all persons. Discretions given to courts, and administrators, may, to varying degrees, involve the creation, modification, abrogation or deferral of rights and interests. However, the conferral of a discretion on a court is not inconsistent with the exercise of judicial power if it is ancillary to the determination of a controversy by the orthodox judicial method, or when its scope is closely circumscribed by prescribed considerations. Extended supervision orders made with respect to ‘High Risk Offenders’[71] and orders calculated to control terrorist activities[72] are examples.
[71] See Part 2 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
[72] See Subdivision B of Division 104 of the Criminal Code Act 1995 (Cth).
Again, there is much overlap between the first two elements and the third – the initiation of the proceedings. Disputes over private rights will generally be submitted to courts by the parties directly concerned. That is almost exclusively the case in the exercise of judicial power. On the other hand, the Parliament legislates on broad matters of its choosing. Historically, industrial tribunals have had the power to intervene in industrial disputes of their own motion, but they, and other arbitrators, usually act on the submission of a dispute to them. Administrative tribunals may act on their own motion when charged to determine a factor on which statutory rights or obligations of members of the public may be founded - for example a resource management plan - but may also act on an individual’s application, for example by a person seeking a licence under such a plan.
Turning to the fourth matter, fact finding in the exercise of judicial power is generally confined to the circumstances of the parties to the dispute. On the other hand, legislators will act on their opinions of international, national, State and community, socio-economic and political conditions. The scope of the factual enquiry of arbitrators and administrative decision makers may vary widely. The width of the enquiry will also determine the fact-finding process employed. Accordingly, a judicial enquiry will generally proceed from a detailed examination of witnesses about facts of a relatively narrow compass. The Parliament on the other hand may entertain public submissions and conduct enquiries. Individual parliamentarians will inform themselves as they see fit before debating what the law should be. Courts are ill equipped for fact finding of that nature.
The fifth aspect, finality, is a hallmark of judicial power. A power which is not exclusively judicial in nature will be indelibly stamped as such if the orders of the tribunal which exercises it are final, in the sense of being immediately enforceable. An adjudication may be final notwithstanding the availability of an appeal against, or judicial review of, the decision by another court in the exercise of its judicial power. It is final if it is immediately enforceable in the sense that no further assent to, or confirmation of, the order is required. If the determination in itself authorises all necessary enforcement measures by the ministerial act of officers who are bound, without further enquiry, to exercise it, it is a final judgment.
The determination of a dispute which, having regard to the first four aspects in [89], is incompatible with the exercise of judicial power, cannot legislatively be made immediately enforceable if there is a constitutional separation of judicial and executive tribunals. On the other hand, a determination which is a core judicial power, or is susceptible to an exercise of judicial power, when given finality, is necessarily an exercise of judicial power and can only be conferred on a Chapter III Court by the Commonwealth, and, if involving federal judicial power, can only be conferred on a court by a State.
The application of the aspects of judicial power identified in [89] to the circumstances of this case is as follows:
1.the recovery of possession of leased premises is a matter which has historically been within the provence of the common law courts;
2.the adjudication involves the application of existing law to facts as found;
3.the dispute affects only the parties to it and the proceedings are inter-partes;
4. the proceeding is adversarial, albeit with significant intervention by the Tribunal, the factual enquiry is peculiar to the parties’ circumstances and the law is identified, not made;
5.the enforcement of the Tribunal’s order is mandated by statute and no further act or proceeding is required.
As a matter of principle, I would hold that the Tribunal is exercising judicial power. I turn next to the decision in Gatsby in which the Court of Appeal reached the same conclusion with respect to the ambiguous power exercised by the Civil and Administrative Tribunal of New South Wales (the NSW Tribunal) under the NSW Act.
The decision in Gatsby
In Gatsby,[73] to which I referred earlier, the Court of Appeal of New South Wales, constituted by five Justices, held that the NSW Tribunal is not a ‘court of a State’ for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth) and that the Tribunal had no jurisdiction to determine proceedings under the NSW Act which were commenced between residents of different States.
[73] [2018] NSWCA 254.
Like the President in this case, Bathurst CJ first determined whether the NSW Tribunal was exercising judicial power, although he recognised that it may have been ‘more logical’ to first answer the question of whether the NSW Tribunal was a court, because the identity of the body in which a function is vested may affect the ultimate characterisation of the power. His Honour observed, however, that it was not necessary to do so in the case before him because it was clear that the power exercised by the Tribunal was judicial.
Turning to the power exercised by the Tribunal under the NSW Act, Bathurst CJ observed:[74]
[125]In the present case, the power exercised by the Tribunal was the power conferred on it by s 87 of the [NSW Act]. The exercise of that power involved the Tribunal: first, determining whether a residential tenancy agreement was in existence; second, whether that agreement was breached; and third, whether the breach was sufficient to justify the termination of the agreement, taking into account the matters referred to in s 87(5).
[126]In determining the existence of the contract which constituted the residential tenancy agreement, whether that contract was breached, and whether that breach of contract was sufficient to justify termination, the Tribunal was exercising what has been traditionally thought to be judicial power: see Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175; [1926] HCA 58; Brandy at 258-259; Attorney‑General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 at [40].
[127]To this must be added the power conferred on the Tribunal by s 121 of the [NSW Act] to enforce its own orders. I should add that it does not seem to me that the right conferred on a person in whose favour an order has been made to approach the Tribunal to seek further orders under cl 8 of Schedule 4 to the NCAT Act, to which I have referred … above, alters the position. That power does not seem to permit reopening of the decision of the Tribunal, but rather, is a mechanism to seek further orders, presumably in aid of enforcement.
[128]In these circumstances, the Tribunal, in exercising powers under s 87 of the [NSW Act], was exercising judicial power.
[74] Attorney-General for New South Wales v Gatsby [2018] NSWCA 254 at [125]-[128].
Bathurst CJ then considered the discretion conferred by s 87(4) of the NSW Act and said:[75]
[75] Attorney-General for New South Wales v Gatsby [2018] NSWCA 254 at [134]-[137].
[134]Contrary to the applicant’s submission, I do not think that the width of the discretion conferred by s 87(4) of the [NSW Act] alters the conclusion that judicial power is being exercised by the Tribunal. The discretion conferred would need to be exercised for the purpose for which it was conferred, namely, to properly adjust the respective rights of the parties, which, for example, courts have traditionally done in considering whether or not to grant relief against forfeiture. Nor do I consider it relevant that there are powers conferred on the Tribunal by the [NSW Act] other than the making of termination orders which might be held to be administrative in nature.
[135]In considering the submission that the Tribunal was not enforcing existing rights since the landlord has no right to terminate a residential tenancy agreement, but only the right to approach the Tribunal to seek a discretionary termination order, it must be remembered that a residential tenancy agreement is subject to provisions of the [NSW Act]. Such an agreement, in conjunction with the [NSW Act], gives the landlord the right, upon breach of the agreement, to issue a termination notice and to seek an order from the Tribunal that the agreement be terminated. The position is quite different to that in Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2 (Alinta) and Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58 (Precision Data), in which the Takeovers Panel and its predecessor were held not to exercise judicial power for the reason, among others, that they were creating a “new charter of rights and obligations of the parties” which could be enforced by a separate court: see Alinta at [2], [96]; Precision Data at 191.
[136]Nor does it seem to me that the position is affected by the requirement in s 38(4) of the NCAT Act that the Tribunal is to act in accordance with “equity, good conscience and the substantial merits of the case”: see Peacock at 36. Further, the fact that an appeal lies to the Appeal Panel of the Tribunal on a question of law demonstrates that the Tribunal is required to exercise its powers according to law. In addition, the fact that it was not “bound by the rules of evidence” is not inconsistent with the exercise of judicial power: Sue v Hill at [42].
[137]For these reasons, the Appeal Panel was correct in concluding that the Tribunal was exercising judicial power in the Gatsby v Gatsby proceeding.
Conclusion
For the reasons given in [96], the powers exercised by the Tribunal in making the orders for vacant possession were judicial. That conclusion cannot be affected by the conferral of powers on the Tribunal which could not fall within the judicial power of the Commonwealth. Whether or not a power is capable of being exercised judicially will be affected by the statutory provisions governing its exercise, but that characterisation cannot be altered by the nature of other discrete and independently exercisable powers conferred on the same tribunal.
The difference between the provisions of the RTA pursuant to which the Tribunal acted in this case is not relevantly different to the provisions of the NSW Act considered in Gatsby. I would dismiss the Attorney-General’s appeal.
KELLY J: I agree with the Chief Justice that the appeal should be dismissed, and with the reasons he gives.
HINTON J: I agree with the Chief Justice for the reasons he gives that this appeal should be dismissed.
Key Legal Topics
Areas of Law
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Constitutional Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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Abuse of Process
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