Attorney-General (NSW) v 2UE Sydney Pty Ltd

The Attorney-General of New South Wales sought a declaration regarding the jurisdiction of the Appeal Panel of the Administrative Decisions Tribunal (ADT). The dispute arose from the ADT's consideration of whether a provision of the *Anti-Discrimination Act 1977* (NSW) infringed the constitutional implication of freedom of communication about government or political matters. The matter was heard by Spigelman CJ, Hodgson JA, and Ipp JA.

The central legal issue before the court was whether the ADT, an administrative tribunal established under State law, possessed the jurisdiction to interpret State legislation in a manner that required it to consider and apply the constitutional implication of freedom of political communication, a principle derived from the Commonwealth Constitution. Specifically, the court had to determine if the ADT's power to interpret provisions in conformity with the Commonwealth Constitution, as potentially conferred by State legislation like the *Administrative Decisions Appeal Act* and the *Interpretation Act*, extended to the point of "reading down" a State law to avoid constitutional invalidity.

The court reasoned that the exercise of interpreting legislation to determine its constitutional validity, particularly in relation to implied constitutional rights, was an exercise of federal jurisdiction. It held that a State tribunal, such as the ADT, could not be invested with federal jurisdiction. Therefore, the ADT's purported power to interpret the *Anti-Discrimination Act 1977* (NSW) by reference to the implied freedom of political communication, and to "read down" the provision accordingly, constituted an impermissible exercise of federal jurisdiction contrary to Chapter III of the Commonwealth Constitution.

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