Citta Hobart Pty Ltd v Cawthorn

The High Court of Australia considered an appeal by Citta Hobart Pty Ltd and others against the Cawthorn. The dispute arose from a complaint made under the *Anti-Discrimination Act 1998* (Tas) which was referred to the Anti-Discrimination Tribunal of Tasmania. The appellants contended that certain provisions of the Tasmanian Act were inconsistent with Commonwealth legislation, specifically the *Disability Discrimination Act 1992* (Cth) and the *Disability (Access to Premises – Buildings) Standards 2010* (Cth). The Tribunal had dismissed the complaint for want of jurisdiction without determining the merits of the defence. The Full Court of the Supreme Court of Tasmania, on appeal, considered and rejected the defence.

The central legal issues before the High Court were whether the Tasmanian Anti-Discrimination Tribunal exercised judicial power when determining the complaint, whether it possessed jurisdiction to hear and determine the complaint, and whether the defence raised by the appellants needed to meet a threshold of arguability to give rise to a "matter" of the kind described in sections 76(i) and 76(ii) of the Commonwealth Constitution. The High Court was required to consider the implication arising from Chapter III of the Constitution, as recognised in *Burns v Corbett* (2018) 265 CLR 304, which prevents State Parliaments from conferring judicial power on a State tribunal that is not a "court of a State" in relation to matters of the kind described in sections 75 and 76 of the Constitution.

The High Court reasoned that the issue of constitutional invalidity under section 109 of the Constitution could have been raised as a separate matter in a court with federal jurisdiction. However, because it was raised as part of the same proceeding before the Tribunal, it constituted a single "matter". The Court held that the content of this matter should be characterised independently of the forum in which it was to be adjudicated, and therefore independently of any restrictions on the jurisdiction of that forum. The appeal was allowed on the first ground, making it unnecessary to decide the second ground concerning the merits of the section 109 issue.

Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Supreme Court of Tasmania, and in their place, ordered that the appeal to that Court be dismissed. There were no orders as to costs.