Burns v Corbett

The High Court of Australia considered appeals concerning the jurisdiction of the New South Wales Civil and Administrative Tribunal (NCAT) to hear disputes where the parties were residents of different States. The core of the dispute involved complaints made under the *Anti-Discrimination Act 1977* (NSW), with the parties agreeing that NCAT exercised State judicial power but was not a "court of a State" for the purposes of Chapter III of the Constitution.

The legal issues before the Court were twofold. First, whether Chapter III of the Constitution contains an implied prohibition preventing any party to the federal compact from conferring adjudicative authority on an organ of government, whether federal or State, other than a court referred to in Chapter III, in respect of matters listed in sections 75 and 76 of the Constitution. Second, whether the *Civil and Administrative Tribunal Act 2013* (NSW) was inconsistent with Commonwealth law, specifically section 39(2) of the *Judiciary Act 1903* (Cth), by purporting to confer jurisdiction on NCAT to determine disputes between residents of different States.

The Court reasoned that while State Parliaments retain the power to confer State judicial power on State tribunals that are not courts, this power is limited with respect to matters falling within sections 75 and 76 of the Constitution. The Court affirmed the distinction between courts and administrative tribunals established in *Boilermakers' Case*, clarifying that this distinction is vital for the purposes of Chapter III. The Court held that sections 28(2)(a) and (c), 29(1), and 32 of the *NCAT Act* were invalid to the extent they purported to confer jurisdiction on NCAT in relation to disputes between residents of different States, as this would infringe upon the exclusive federal jurisdiction contemplated by section 75(iv) of the Constitution. However, these provisions could be read down to avoid this constitutional invalidity.

Consequently, the appeals were dismissed. The appellant was ordered to pay the costs of the respondents in each of the consolidated matters.