Dennis v Smith

[2024] NSWCATAD 91

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Dennis v Smith [2024] NSWCATAD 91

Hearing dates:

On the papers

Date of orders:

9 April 2024

Decision date:

09 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

(1)   The Tribunal declines to deal with the    application as it involves an exercise of    federal jurisdiction.

(2) The Tribunal has determined the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

CONSTITUTIONAL LAW (Cth) – Whether the Tribunal has jurisdiction to hear and determine complaint – federal jurisdiction - where respondent raised constitutional claim of implied freedom of communication on political matters – whether s38S of the Anti-Discrimination Act 1977 imposes an unjustified burden on the implied freedom of political communication – whether the respondent’s claim was genuinely raised – whether the respondents’ claim was not capable on its face of legal argument.

HUMAN RIGHTS – Transgender vilification.

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Act 2013

Judiciary Act 1903

Cases Cited:

Blanch v Smith [2024] NSWCATAD 20

Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476

Texts Cited:

None

Category:

Procedural rulings

Parties:

Riley Dennis (Applicant)
Kirralie Smith (Respondent)

Representation:

Solicitors:
Dentons Australia Ltd (Applicant)
Solve Legal (Respondent)

File Number(s):

2023/00240004

Publication restriction:

N/A

REASONS FOR DECISION

1. On 30 March 2023, Anti-Discrimination NSW (“ADNSW”) received a complaint from Riley Dennis against Kirralie Smith alleging transgender vilification pursuant to section 38S of the Anti-Discrimination Act (NSW) (“the Act”), regarding events alleged to have occurred from 27 March 2023 to 30 March 2023. On 27 July 2023, ADNSW referred the complaint to this Tribunal under s93C(a) of the Act because the President’s Delegate was of the opinion that the complaint could not be resolved by conciliation.

2. The parties filed consent orders on 26 February 2024 in the following terms:

1. The Tribunal does not have jurisdiction to determine the application because it involves an exercise of federal jurisdiction.

2. The Tribunal therefore declines to deal with the application.

3. Both parties filed written submissions in support of the consent orders. Both parties consent that the issue of jurisdiction is suitable for determination on the papers pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”). Having read the submissions, the Tribunal is satisfied that the jurisdiction is suitable for determination on the papers pursuant to s50(2) of the CAT Act.

4. On 20 December 2023 the respondent served notices under section 7AB of the Judiciary Act 1903 (Cth) (“Notices”) on Attorney Generals raising a question as to whether s 38S of the Act is constitutional insofar as it may burden the implied freedom of political communication (the jurisdictional question). The respondent submitted that she has raised the jurisdictional argument genuinely and that the jurisdictional question issue is genuinely arguable. The respondent relied on Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 (Burns v Corbett) and Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 96 ALJR 476 (Citta).

5. It is not in dispute that this Tribunal is not a ‘court of the State’ and is not invested with ‘federal jurisdiction’ under Chapter III of the Constitution (Cth) Burns v Corbett [3], [39].

6. Both parties refer to the recent decision of this Tribunal which involved one of the same respondents; Blanch v Smith [2024] NSWCATAD 20 (Blanch v Smith). In Blanch v Smith the respondent raised the same argument as she has in this application. Like in Blanch v Smith, the application involved an allegation of transgender vilification. In Blanch v Smith, the Tribunal found that there was a justiciable controversy that was genuinely raised [40] and that the constitutional issue was capable on its face of legal argument [55].

7. The applicant joined issue with the respondent that she has raised a matter ‘arising under’ the Constitution within the meaning of s76 of the Constitution, that the jurisdictional issue must be genuinely raised and that it is enough that the assertion is not incapable on its face of legal argument; Citta [31] and [35].

8. Following the decision in Burns v Corbett, The CAT Act was amended. Part 3A was introduced so that where an application raised a ‘federal proceeding’ and the Tribunal did not have jurisdiction to deal with it, an application could be made in a New South Wales Court which is capable of exercising federal jurisdiction under Chapter III of the Constitution.

9. I have considered the material and submissions before me and am satisfied that this application raises the same jurisdictional questions raised in Blanch v Smith. I am also satisfied that the respondent has raised the issue genuinely and that  it is not so clearly untenable that it cannot possibly succeed.

10. I make the following orders:

1. The Tribunal declines to deal with the application as it involves an exercise of federal jurisdiction.

2. The Tribunal has determined the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

07 June 2024 - General amendment - typographical error

Decision last updated: 07 June 2024