Jezro Pty Ltd ACN 154 321 445 Trading as WORKIN' Gear v Australian Postal Corporation Inc ABN 28 864 970 579
[2024] ACAT 80
•23 October 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JEZRO PTY LTD ACN 154 321 445 TRADING AS WORKIN' GEAR v AUSTRALIAN POSTAL CORPORATION INC ABN 28 864 970 579
(Civil Dispute) [2024] ACAT 80
XD 568/2023
Catchwords: CIVIL DISPUTE – claim for debt arising in relation to the delivery of postal services by the respondent – effect of section 121 of the Legislation Act 2001 in conferring immunity for authorised acts or omissions on a Commonwealth entity – whether the respondent is a Commonwealth entity – whether inconsistency between Commonwealth and Territory legislation – whether principles in Burns v Corbett [2018] HCA 15 applicable to the jurisdiction of the Tribunal – whether the Tribunal is able to determine its own jurisdiction where the respondent is the Commonwealth for the purposes of section 75(iii) of the Constitution
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 15, 16, 22, pt 4
Acts Interpretation Act 1901 (Cth) s 2
Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 22, 27
Australian Postal Corporation Act 1989 (Cth) ss 14, 18, 19, 26, 27, 29, 30A, 32, 49, 50, 51, 52, 54, 63, 73, 79, 90A
Constitution ss 64, 71, 72, 75, 76, 77, 109, 122, Ch III
Discrimination Act 1991 s 20
Fair Trading (Australian Consumer Law) Act 1992
Fair Trading Act 2012 (Vic)
Human Rights Commission Act 2005 ss 40, 53A
Judiciary Act 1903 s 39
Legislation Act 2001 ss 6, 75, 84, 120, 121, 122
Magistrates Court Act 1930 ss 257, 258, 264, 266A, pt 4.2
National Disability Insurance Scheme Act 2013 (Cth) s 122
Public Governance, Performance and Accountability Act 2013 (Cth)
Public Service Act 1999 (Cth)
Supreme Court Act 1933
Subordinate
Legislation cited: Australian Capital Territory (Self-Government) Amendment Regulations 2024
Australian Capital Territory (Self-Government) Regulations 2021 reg 5(1)
Cases cited:Albyn Queensland Pty Ltd v Australian Postal Corporation [2024] VSC 584
An & Ors v Australian Broadcasting Corporation [2024] VSC 518
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Austral Pacific Group Limited v Airservices Australia [2000] HCA 39
Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316
Australian Postal Corporation v Williams [2024] NSWCATAP 168
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1
Bank of NSW v Commonwealth [1948] HCA 7
Bloxham v Commonwealth of Australia [2014] ACAT 60
Bonke v Oz Property Services Pty Ltd [2018] ACAT 91
Bradken Consolidated Ltd v Broken Hill Pty Co Ltd [1979] HCA 15
Bropho v Western Australia [1990] HCA 24
Burns v Corbett [2018] HCA 15
Chen v United Arab Emirates [2023] ACAT 42
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Deputy Commissioner of Taxation v State Bank of NSW [1992] HCA 6
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133
Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87
Jellyn Pty Ptd v State Bank of South Australia [1995] QCA 72
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24
Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30
National Disability Insurance Agency v Attorney-General for the Australian Capital Territory [2020] ACTSC 52
North Australia Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52
Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation [1992] HCA 53Re Governor; Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44
Simms v Williams [2023] NTCAT 16
Spratt v Hermes [1965] HCA 66
Townsville Hospitals Board v Townsville City Council [1982] HCA 48
Wojciechowska v Secretary, Department of Communities and Justice [2023] NSWCA 191
List of
Texts/Papers cited: James Stellios, The Federal Judicature, (Lexis Nexis Butterworths, 2nd Ed, 2020)
Tribunal:Senior Member D Stewart
Date of Orders: 23 October 2024
Date of Reasons for Decision: 23 October 2024
Date of Publication: 30 October 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 568/2023
BETWEEN:
JEZRO PTY LTD ACN 154 321 445 TRADING AS WORKIN' GEAR
Applicant
AND:
AUSTRALIAN POSTAL CORPORATION INC ABN 28 864 970 579
Respondent
TRIBUNAL:Senior Member D Stewart
DATE:23 October 2024
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member D Stewart
REASONS FOR DECISION
Introduction
The applicant, Jezro Pty Ltd, seeks recovery of a debt they say is owed by the respondent. The applicant claims that the respondent was not entitled to charge various fees associated with delivery of parcels. The respondent has objected to the jurisdiction of the tribunal to determine the application given the nature of the respondent as a Commonwealth entity. That question was set aside for determination as a preliminary issue. That is the question considered in these reasons.
In summary, I have concluded that the respondent is a government entity entitled to the same immunity extended to the Crown in right of the Commonwealth by the operation of section 27 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) and section 121(4) of the Legislation Act 2001 (Legislation Act). The respondent is therefore immune from any civil dispute application made to the Tribunal under part 4 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). In the absence of any other authorising law the Tribunal does not have jurisdiction to hear this claim. I have also concluded that the Tribunal lacks jurisdiction to determine this matter as it is a matter brought against the Commonwealth for the purposes of section 75(iii) of the Constitution which can only be heard by a court exercising federal jurisdiction.
Statutory context
The jurisdiction of the tribunal in a debt application is provided by part 4 of the ACAT Act. Section 15 defines a debt application to mean an application for the recovery of a debt. A debt application is included as a form of civil dispute application in section 16, which a person can make to the tribunal under section 17. Section 22 then provides for the jurisdiction and powers of the tribunal in relation to civil dispute applications:
22 Tribunal jurisdiction and powers of Magistrates Court
(1) The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).
(2) However, a rule may prescribe provisions of the Magistrates Court Act 1930, part 4.2 that do not apply in relation to the tribunal.
NoteThe Magistrates Court Act 1930, pt 4.2 deals with the civil jurisdiction of the Magistrates Court, including that the Magistrates Court—
(a)may hear and decide any personal action at law, including an action relating to the detention of goods, subject to a monetary limit (see s 257); and
(b)may grant any relief, redress or remedy and must give effect to any defence, counterclaim or set-off in the same way as the Supreme Court (see s 258); and
(c)does not have jurisdiction to hear and decide a proceeding questioning title to land (unless incidental in the proceeding) (see s 264).
However, the respondent contends that the jurisdiction of the tribunal under these provisions to make orders binding on an entity such as the respondent is restricted by the power of the ACT Legislative Assembly to make laws under the Self-Government Act and the interpretation of ACT legislation under the Legislation Act.
The power of the ACT legislative assembly to make laws for the Territory is provided in section 22 of the Self-Government Act.
22 Power of Assembly to make laws
(1)Subject to this Part and Part VA, the Assembly has power to make laws for the peace, order and good government of the Territory.
(2)The power to make laws extends to the power to make laws with respect to the exercise of powers by the Executive.
Section 22 is found within Part IV of the Self-Government Act. Also, within that Part, and hence a limit on section 22, is section 27:
27 Crown may be bound
Except as provided by the regulations, an enactment does not bind the Crown in right of the Commonwealth.
Enactment is defined for the purposes of the Self-Government Act as a Territory law made by the Assembly. Regulation 5(1) of the Australian Capital Territory (Self-Government) Regulations 2021 (Cth) (Self-Government Regulations) lists various enactments which, for the purposes of section 27 of the Self-Government Act, bind the Crown in right of the Commonwealth. At the time of writing these reasons, regulation 5 relevantly stated:
5 Enactments that bind the Crown in right of the Commonwealth
(1)For the purposes of section 27 of the Australian Capital Territory (Self‑Government) Act 1988, each of the following enactments binds the Crown in right of the Commonwealth if the enactment would do so apart from that section:
…
(ha)the Magistrates Court Act 1930 (ACT);
…
(la)the Supreme Court Act 1933 (ACT);
Importantly, the ACAT Act is not listed. Paragraphs (ha) and (la) were inserted into regulation 5(1) by the Australian Capital Territory (Self-Government) Amendment Regulations 2024 which relevantly commenced on 31 August 2024. At the time of the original application in this matter and the hearing of this preliminary issue, there was no relevant enactment listed.
The interpretation of laws of the Territory which may go beyond the power of the Assembly by binding the Crown in right of the Commonwealth is addressed by sections 120 and 121 of the Legislation Act.
120 Act to be interpreted not to exceed legislative powers of Assembly
(1) An Act is to be interpreted as operating to the full extent of, but not to exceed, the legislative power of the Legislative Assembly.
(2) Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding the legislative power of the Legislative Assembly—
(a)the provision is valid to the extent to which it does not exceed power; and
(b)the remainder of the Act is not affected.
(3) Without limiting subsection (1), if the application of a provision of an Act to a matter would, apart from this section, be interpreted as exceeding power, the provision’s application to other matters is not affected.
(4) This section is in addition to any provision of the Act itself.
NoteFor the equivalent provision for statutory instruments, see s 43.
(5) This section is a determinative provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
121 Binding effect of Acts
(1) An Act binds everyone, including people who are not Australian citizens and all governments.
NoteSee the Self‑Government Act, s 27 which provides that, except as provided by the regulations under that Act, an ACT enactment does not bind the Crown in right of the Commonwealth. See also s 120.
(2) However, an Act does not bind the Territory to the extent that it requires or otherwise provides for the payment of money that, on payment, would form part of the public money of the Territory.
(3) Also, subsection (1) does not make a government liable to be prosecuted for an offence.
(4) To the extent that an Act does not bind a government, the same degree of immunity extends to a government entity in relation to an authorised act or omission of the entity.
(5) This section is a determinative provision.
NoteSee s 5 for the meaning of determinative provisions, and s 6 for their displacement.
(6) In this section:
authorised—an act or omission of a government entity is authorised if—
(a)for an instrumentality—the act or omission relates to a matter within the scope of the instrumentality’s functions; and
(b)for an officer or employee of the government—the act or omission relates to a matter within the scope of the duties of the officer or employee; and
(c)for a contractor who exercises a function on behalf of the government—the act or omission relates to a matter within the scope of the contract; and
(d)for anyone else who exercises a function on behalf of the government—the act or omission relates to a matter within the scope of the person’s engagement.
government includes the Territory, the Commonwealth, a State, another Territory or New Zealand.
government entity includes—
(a)an instrumentality, officer or employee of the government; and
(b)a contractor or anyone else who exercises a function on behalf of the government
Under section 6 of the Legislation Act, determinative provisions such as these may only be displaced expressly or by a manifest contrary intention. Unlike non‑determinative provisions and the effect of provisions which may be found in other interpretation legislation such as the Acts Interpretation Act 1901 (Cth), the application of these provisions is not subject to a mere contrary intention suggested by the interpretation of the legislation in question.[1]
[1] See Legislation Act s 6(3) and Acts Interpretation Act 1901 (Cth) s 2(2)
Also of importance in this matter are various provisions of the Australian Postal Corporation Act 1989 (Cth) (Australia Post Act). In particular, section 90A provides:
90A Australia Post not entitled to immunities or privileges of Commonwealth
For the purposes of the laws of the Commonwealth, or of a State or Territory, Australia Post is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory.
Respondent’s contentions
The respondent contends that the restriction in section 27 of the Self-Government Act, together with section 120(1) of the Legislation Act, means that the ACAT Act should be interpreted as not extending to bind the Crown in right of the Commonwealth. If the respondent enjoyed the immunities and privileges of the Crown in right of the Commonwealth for these purposes, it is not subject to orders of the tribunal or otherwise subject to the tribunal’s jurisdiction. Therefore, the effect of section 27 is that the ACAT Act does not bind the Commonwealth government.
The respondent also contended that section 121(4) of the Legislation Act extends the same degree of immunity as enjoyed by the Crown in right of the Commonwealth to a government entity such as the respondent. The immunity is extended to any authorised acts or omissions of the entity. Therefore, even if the respondent is not entitled to the immunity of the Crown in right of the Commonwealth, as a government entity carrying out an authorised act it is entitled to the same degree of immunity. This again, the respondent submitted, means that the respondent is not subject to the tribunal’s jurisdiction in this matter.
This interpretation of section 121 was supported by the decision of Ashford AJ in National Disability Insurance Agency v Attorney-General for the Australian Capital Territory[2] (NDIA v AG(ACT)). That case concerned the referral of a complaint to the Tribunal under the Human Rights Commission Act 2005 against the National Disability Insurance Agency (NDIA). Her honour held that, as neither the Human Rights Commission Act 2005 nor the ACAT Act was listed in the Self-Government Regulations, the effect of section 27 of the Self-Government Act was that neither of those two Acts bound the Crown in right of the Commonwealth.[3]
[2] [2020] ACTSC 52
[3] [2020] ACTSC 52 at [60]
The NDIA was a statutory corporation established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). Section 122 of that Act stated that the NDIA “does not have privileges and immunities of the Crown in right of the Commonwealth”. However, Ashford AJ held that the NDIA was a government entity for the purposes of section 121(4), and therefore immune in relation to its authorised acts. The Tribunal was held not to have authority to entertain the referred complaint.[4]
[4] [2020] ACTSC 52 at [62]
In determining that the NDIA was a government entity, Ashford AJ stated:
The NDIA was established only by Commonwealth legislation and its functions and powers are conferred by that legislation. It was created to administer a national scheme, thereby serving a Commonwealth government purpose. That purpose is to fund persons or entities to enable them to assist people with disabilities to participate in economic and social life.
Further, it appears to me that NDIA is ultimately financially dependent on the Commonwealth. The only guaranteed funding for the NDIA is from funds appropriated by the Commonwealth Parliament. It can receive monies paid to it by a host jurisdiction for funding reasonable and necessary support but the money from an agency is only to be applied in payment or discharge of any expenses, charges and obligations incurred or undertaken by the agency and thus I accept that it is the Commonwealth which exercises all significant control.
The NDIA is also subject to direction by the responsible Minister and has a Board and a Chair appointed by the Minister. Whilst there should be consultation with the States in respect of appointments to the Board and Chair, if that fails, the Minister has the ultimate responsibility for appointments. The Board and Chair are apparently remunerated under a determination of the Remuneration Tribunal and the NDIA is staffed by persons engaged under the Public Service Act 1999 (Cth) and thus employed by the Commonwealth.[5]
[5] [2020] ACTSC 52 at [48]–[50]
The respondent submitted that the respondent was also a government entity for similar reasons. “Instrumentality” in the context of section 121 should be understood in its ordinary meaning of a “means or agency” by which the Commonwealth government carries out its functions[6] or through which government purposes are served.[7] An instrumentality may pursue purposes which are commercial in nature,[8] and may enjoy some independence without control of the government.[9]
[6] See also Deputy Commissioner of Taxation v State Bank of NSW [1992] HCA 6 at [19]
[7] See eg, Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation [1992] HCA 53 at [7]
[8] PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52 at [41]
[9] Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133 at 139
The respondent submitted that it should be regarded as an instrumentality of the Commonwealth as:
(a)It was established by Commonwealth legislation and subject to the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) in relation to reporting on use and management of public resources;
(b)Under the Australia Post Act, the respondent has the exclusive right to carry letters[10] and is subject to various community service obligations to ensure it meets the “social, industrial and commercial needs of the Australian community”.[11] Its obligation to perform its functions in a manner consistent with sound commercial practice is only “as far as practicable”.[12] The delivery of postal services was historically performed by a Department of State established under section 64 of the Constitution;
(c)The respondent is subject to various forms of scrutiny by the Commonwealth government due to the operation of the PGPA Act. This includes: obligations to carry out its functions consistent with a government policy order or Ministerial directions; audits by the Auditor-General; having to prepare a corporate plan for maintaining its value and reasonable dividends paid to the Commonwealth; and reporting on its financial performance. The Australia Post Board is also subject to ministerial directions in relation to the performance of the respondent’s functions as “necessary in the public interest”.[13] However, under section 50 of the Australia Post Act the respondent is not otherwise subject to direction by or on behalf of the Australian Government.
(d)The Commonwealth government also exercises some control over the respondent’s finances, having determined the initial capital as well as amounts paid out of money appropriated by parliament.[14] The Minster can direct the payment of a dividend to the Commonwealth,[15] and pecuniary penalties associated with breach of the respondent’s exclusive right to undertake reserved services (generally the collection, carrying, and delivering of letters domestically and issuing postage stamps)[16] are paid to the Commonwealth.[17]
(e)Directors of the respondent’s Board are appointed by the Governor-General on the nomination of the Minister,[18] whose appointments can be terminated by the Governor-General.[19]
[10] Australia Post Act s 29(1)
[11] Australia Post Act s 27(4)
[12] Australia Post Act s 26
[13] Australia Post Act s 49
[14] Australia Post Act ss 51, 52
[15] Australia Post Act s 54
[16] Australia Post Act s 29
[17] Australia Post Act s 30A
[18] Australia Post Act s 73
[19] Australia Post Act s 79
The respondent accepted that there were two provisions of the Australia Post Act which suggested that the respondent was not an instrumentality. As set out above, section 90A provides that, in the absence of express provision, Australia Post is not entitled to any immunity or privilege of the Commonwealth for the purposes of the laws of the Commonwealth, or of a State or Territory. Section 63 also provides that the respondent is subject to taxation and is not a public authority for various purposes under taxation laws. The respondent submitted that neither was a bar to other analogous bodies being accepted as instrumentalities.[20]
[20] The respondent cited Jellyn Pty Ltd v State Bank of South Australia [1995] QCA 72 as authority for the proposition that a body may enjoy some but not all privileges and immunities and still be considered a government body. Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 and Austral Pacific Group Limited v Airservices Australia [2000] HCA 39 were given as examples of cases accepting that a body may be a commonwealth instrumentality while subject to taxation (though I note that neither decision references being subject to taxation in their reasons)
Finally, the respondent submitted that the acts of the respondent alleged to have given rise to the debt in issue in the original application were authorised acts for the purposes of section 121 of the Legislation Act. “Authorised” for the purposes of section 121 is defined for an instrumentality as where “the act or omission relates to a matter within the scope of the instrumentality’s functions”.[21] Here, the applicant is seeking repayment of about $21,000 in fees paid to the respondent as part of its parcel delivery service. Under section 14 of the Australia Post Act, the principal function of the respondent “is to supply postal services within Australia …”. The respondent has the power, for or in connection with this and other functions, to supply packet and parcel carrying services,[22] and to “make charges and fix terms and conditions for work done, or services, goods and information supplied, by it”.[23] Section 32 of the Australia Post Act also provides for the terms and conditions of a service supplied by the respondent to be as agreed between the respondent and the person concerned. The question whether the fees were appropriately required or otherwise should be repaid to the applicant as a debt therefore relates to a matter within the scope of the respondent’s functions for the purposes of section 121(4).
Consideration
[21] See section 121(6)
[22] Australia Post Act s 18(a)
[23] Australia Post Act s 19(1)(h)
The respondent’s submissions largely follow from the decision in NDIA v AG(ACT). I am bound by that decision. However, there are some differences between that case and this that suggest additional steps are required for the respondent to be successful in establishing that the Tribunal does not have jurisdiction in this matter. They include the different basis of the Tribunal’s jurisdiction, the effect of section 90A of the Australia Post Act, and the ability of the Tribunal to determine the limits of its jurisdiction when considering an exercise of judicial power within federal jurisdiction.
Basis of the Tribunal’s jurisdiction
The first, and perhaps least consequential, difference between this case and NDIA v AG(ACT) relates to the different basis for the Tribunal’s jurisdiction. In NDIA v AG(ACT) the tribunal was considering a referral under section 53A of the Human Rights Commission Act 2005, which in turn relied on a discrimination complaint under section 40 of that Act and section 20 of the Discrimination Act 1991. Neither of these Acts, nor the ACAT Act, was or is prescribed in the Self-Government Regulations for the purposes of section 27 of the Self-Government Act. Under section 27, those Acts therefore could not bind the Crown in right of the Commonwealth, which Ashford AJ accepted to mean that those Acts did not bind the Commonwealth government for the purposes of section 121(4) of the Legislation Act. Even though the NDIA may not have enjoyed the immunity of the Crown in right of the Commonwealth due to the express provision in its constituent legislation, as a government entity section 121(4) meant that the same degree of immunity was applied in relation to NDIA’s authorised acts or omissions.
In this matter, the Tribunal’s jurisdiction derives from the making of a debt application, which is a civil dispute for the purposes of part 4 of the ACAT Act. Under section 22 of the ACAT Act, the Tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under part 4.2 of the Magistrates Court Act 1930 (Magistrates Court Act). Under section 257 of that Act, the Magistrates Court has jurisdiction to hear and decide any personal action at law if the amount claimed is not more than $250,000. That includes the power to grant any relief, redress, or remedy that the Supreme Court may grant in a similar action.[24]
[24] Magistrates Court Act s 258
After the hearing of the preliminary question in this matter, the Self-Government Regulations were changed. The Australian Capital Territory (Self-Government) Amendment Regulations 2024 (Amendment Regulations) inserted, among others, the Magistrates Court Act and Supreme Court Act 1933 as enactments provided by the regulations for the purposes of section 27 of the Self-Government Act. As the explanatory statement accompanying the Amendment Regulations states, specifying the enactments in question:
ensures that, as far as possible, the Commonwealth takes on the same legal burdens and obligations as other parties when participating in ACT courts, and similarly removes any doubt that the Commonwealth may take the correlative benefits of those enactments.
The relevant effect of the Amendment Regulations is to remove the operation of section 27 of the Self-Government Act and to allow the Magistrate’s Court Act to be interpreted so that it binds the Crown in right of the Commonwealth. As the Magistrates Court Act would then bind a government, the extended immunity of government entities in section 121(4) would also no longer be available. The question then arises whether that effect on the Magistrates Court Act also carries through to the jurisdiction of the Tribunal under section 22 of the ACAT Act so as to enable civil claims to be brought against Commonwealth entities.
The timing of the Amendment Regulations ultimately means that I do not have to answer that question. The Amendment Regulations commenced on 31 August 2024. There is no express indication in the regulation or elsewhere going to whether the Commonwealth would be subject to the legislation included in the amendment regulation in relation to applications lodged prior to the commencement of that amendment. I would not interpret the Amendment Regulations so as to displace the general presumption against retrospective operation,[25] affect the previous operation of the law or anything done, begun or suffered under the law,[26] or affect an existing right, privilege, or liability acquired, accrued, or incurred under the law.[27]
[25] Note that the Legislation Act s 75A states that an “Act or legislative instrument commences retrospectively if it commences on a day or at a time earlier than the day after its notification day”
[26] Legislation Act s 84(1)b)
[27] Legislation Act s 84(1)(c)
The effect of section 27 of the Self-Government Act, and the subsequent extension of immunity for government entities in section 121(4) therefore continues to apply to this matter.
I note that one consequence of the Amendment Regulations is that applications to the Magistrates Court would no longer be affected by section 27 of the Self‑Government Act. I note that section 266A of the Magistrates Court Act prevents civil disputes claiming less than $25,000 being started in the Magistrates Court. A civil dispute is defined for this purpose through reference to section 16 of the ACAT Act. It is likely that section 266A would therefore only apply to restrict applications to the Magistrates Court where a valid application could be made to the Tribunal. Where, as I find in this case, the respondent could not have been named as a party to a valid application to the Tribunal, the Amendment Regulations suggest that they could be named as a respondent in an application to the Magistrates Court. I do not make any finding about whether the applicant could have applied to the Magistrates Court at the time of the original application to the Tribunal in this matter or whether any other courts may have had jurisdiction.
Effect of section 90A of the Australia Post Act
The second, perhaps more substantial, difference between this case and NDIA v AG(ACT) is posed by the differences between section 122 of the NDIS Act considered in that case and section 90A of the Australia Post Act which is relevant here. Section 122 of the NDIS Act stated that the NDIA “does not have privileges and immunities of the Crown in right of the Commonwealth”. Section 90A extends this so that the respondent “is not entitled to any immunity or privilege of the Commonwealth except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of the State or Territory”.
The respondent in NDIA v AG(ACT) had argued that section 122 of the NDIS Act was inconsistent with section 121(4) of the Legislation Act. Section 28 of the Self-Government Act provides that Territory enactments have no effect to the extent they are inconsistent with a Commonwealth law in force in the Territory. Section 120 of the Legislation Act is to similar effect. The ACT Attorney-General had argued that section 122 was inconsistent with any interpretation of section 121(4) which would extend that protection. Therefore, section 121(4) should be interpreted so as not to apply to the NDIA.
The Acting Justice in NDIA v AG(ACT) rejected this argument. She stated:
Clearly, the question of whether any Territory enactment binds the government is a question of construction and must be looked at in that fashion.
It seems that on a proper construction, s 122 of the NDIS Act provides that the NDIA does not have the privileges and immunities of the Crown in the right of the Commonwealth. Thus, there is no scope for ACT law to operate concurrently on the subject of whether NDIA may rely on Commonwealth immunity.
I accept that s 120(1) requires s 121(1) be interpreted so as not to exceed the legislative power of the Legislative Assembly. The note in s 121(1) draws attention to the constraints imposed by s 27 of the Self-Government Act which states that, except as provided and specified by the regulations, an enactment does not bind the Crown in right of the Commonwealth. Thus, the relevant act must be specified in the schedule to those regulations to bind the Crown and it is clear to me that neither the HRC Act nor the ACAT Act are so specified.
Underlying this conclusion are the different ways in which the various immunities may be described. Section 27 refers to enactments not binding the Crown in right of the Commonwealth. In doing so section 27 recognises the common law presumption that the Crown was not bound by legislation[28] by making it clear that the Crown in right of the Commonwealth may only be bound as provided by regulation. Alternatively, a Commonwealth agency or instrumentality may be said to represent the Crown so as to be entitled to the privileges and immunities of the Crown.[29] Governments, including a corporation which is an agency or instrumentality of the Commonwealth, may also be considered legal persons without reliance on conceptions of the Crown.[30] As stated by Dixon J in Bank of NSW v The Commonwealth,[31] the Constitution:
treats the Commonwealth and the States as organizations or institutions of government possessing distinct individualities. Formally they may not be juristic persons, but they are conceived as politically organized bodies having mutual legal relations and amenable to the jurisdiction of courts upon which the responsibility of enforcing the Constitution rests.
[28] See Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [1979] HCA 15 (Bradken). Note that the requirement for manifest intent before the presumption was displaced set out in Bradken was replaced by a more flexible approach considering the appropriateness of individual provisions applying to the body in question in Bropho v Western Australia [1990] HCA 24
[29] Townsville Hospitals Board v Townsville City Council [1982] HCA 48
[30] Deputy Commissioner of Taxation v State Bank of NSW [1992] HCA 6 at [20]
[31] [1948] HCA 7
It has therefore been accepted that:
whether an entity is the Commonwealth for the purposes of the Constitution is distinct from the question of whether it attracts privileges and immunities of the Crown in right of the Commonwealth so that any privilege or immunity under statute would not be determinative of the question.[32]
[32] An & Ors v Australian Broadcasting Corporation [2024] VSC 518 at [26]
The court in NDIA v AG(ACT) accepted that the reference to the privileges and immunities of the Crown in right of the Commonwealth in section 122 of the NDIS Act meant that the NDIA was not part of the Crown in right of the Commonwealth for the purposes of section 27 of the Self-Government Act. However, the court found that the relevant legislation did not bind the Commonwealth government for the purposes of section 121(4) of the Legislation Act, and hence NDIA could enjoy the same degree of immunity in relation to its authorised act or omission because it was a government entity.
It is arguable that Section 90A of the Australia Post Act goes further than section 122 of the NDIS Act considered in NDIA v AG(ACT). Section 90A states that the respondent is not to enjoy any immunity or privilege of the Commonwealth. This could extend beyond the immunity enjoyed by the Crown in right of the Commonwealth to include any immunity granted to the Commonwealth. The question then arises whether the immunity granted to a Commonwealth entity under section 121(4) of the Legislation Act is a form of immunity or privilege of the Commonwealth for the purposes of section 90A.
In my view, section 90A is intended to apply only to the immunities or privileges enjoyed by the Commonwealth by virtue of the Commonwealth’s identity in any of the senses described above, including the Crown in right of the Commonwealth or as an organisation or institution of government. It displaces common law privileges, including privileges with respect to prerogative powers and property rights, that might otherwise apply. The default common law presumption that legislation may not bind the respondent due to being entitled to the privileges and immunities of the Crown is therefore reversed, with any immunity or privilege requiring express provision.
The exception in section 90A for express provision, including by a law of a Territory, in my view includes section 121(4) of the Legislation Act and its express provision for immunity for Commonwealth entities to the extent they can be considered as part of the Commonwealth. Section 90A therefore evidences an intention to permit provisions such as section 121(4) which extend protection to the respondent. There is therefore no inconsistency with section 90A of the Australia Post Act so as to limit the scope of any immunity offered under the section 121(4) of the Legislation.
Limits on the Tribunal’s ability to determine its jurisdiction where the Commonwealth is a party
The third difference between the between this case and NDIA v AG(ACT) is that this decision is made by the Tribunal and not the ACT Supreme Court. That potentially gives rise to complex questions relating to the Tribunal’s jurisdiction arising from the possibility that the respondent can be characterised as the Commonwealth for the purposes of section 75(iii) of the Constitution. In other words, this case gives rise to a jurisdictional controversy arising under Chapter III of the Constitution concerning the authority of the Tribunal to adjudicate on the claim made by the applicant in this matter.[33]
[33] The terminology of jurisdictional controversies comes from Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87
In Burns v Corbett[34] (Burns v Corbett) the High Court held that a State parliament lacks the legislative capacity to confer jurisdiction with respect to any of the matters listed in sections 75 and 76 in Chapter III of the Constitution on a body which is not a court for the purposes of that chapter. Considerations of constitutional text, structure and purpose meant that the NSW Civil and Administrative Tribunal could not exercise judicial power in matters, in that case, between residents of different states for the purposes of section 75(iv) of the Constitution.
[34] [2018] HCA 15
In initially objecting to the Tribunal’s jurisdiction in this matter, the respondent raised the effect of Burns v Corbett and argued that it was applicable to the Territory. That argument was not developed in further submissions, either inwriting or at the hearing of the interim application, but was not abandoned. In the absence of detailed argument, I would be hesitant to accept this as the sole basis on which the respondent might succeed, but given my findings in relation to the effect of section 121(4) above I consider there is no unfairness to the applicant in also setting out my findings on this issue.
The applicability of the principle in Burns v Corbett only arises where the Tribunal would otherwise have jurisdiction. Given my conclusion above about the impact of section 121(4) of the Legislation Act, it may not be strictly necessary to consider this issue. That conclusion is not without doubt, however, and the impact of the Amendment Regulations on future Tribunal proceedings involving Commonwealth entities also suggests the possible utility of setting out my findings on this issue.
The question of whether Burns v Corbett has application to Territory tribunals, and to the Tribunal in particular, has not been definitively considered. In what might be considered a prophetic decision, the Tribunal in Bloxham v Commonwealth of Australia[35] dismissed an application in negligence brought against the Commonwealth for the actions of the Australian Federal Police. The Tribunal concluded:
A trial of a matter, pursuant to the Civil Law (Wrongs) Act in an action for negligence involves the exercise of judicial power: the Tribunal would be making a binding decision based upon established legal principles and that decision would determine rights and obligations of the parties. Wherever the Commonwealth is a party to a matter, the exercise of judicial power is an exercise of federal jurisdiction. Only a Court properly constituted according to Chapter III of the Constitution may exercise the judicial power of the Commonwealth. ACAT is not such a court.[36]
[35] [2014] ACAT 60
[36] [2014] ACAT 60 at [31]
Since the decision in Burns v Corbett, a number of Tribunal decisions have referred to that case without finding that the Tribunal’s jurisdiction was affected.[37] In Chen v United Arab Emirates,[38] for example, the Tribunal considered the position which may have arisen if a civil claim for breach of contract had been made against a foreign state, which would have required consideration of various threshold matters arising under a law of the Commonwealth. The Tribunal, citing Burns v Corbett, stated:
Where these threshold issues are in dispute, the tribunal lacks jurisdiction to decide the matter, which would involve the tribunal in exercising federal jurisdiction. Only a court vested with appropriate authority under Chapter III of the Constitution can do so.[39]
[37] See the discussion in Sunol v Kerslake [2024] ACAT 35 at [139]–[149]
[38] [2023] ACAT 42
[39] [2023] ACAT 42 at [20]
In contrast, in Bonke v Oz Property Services Pty Ltd[40] (Bonke) the Tribunal held that the Tribunal’s jurisdiction was not affected by the decision in Burns v Corbett because federal jurisdiction under section 75(iv) of the Constitution did not include disputes involving a resident of the Territory. The Tribunal commented:
More generally, the current weight of authority also indicates that Territory Courts derive their authority not from Chapter III of the Constitution, but from the ‘Territories power’ in section 122 of the Constitution. The same reasoning would presumably apply to this tribunal, especially in circumstances where it is exercising powers in its civil jurisdiction.[41]
[40] [2018] ACAT 91
[41] [2018] ACAT 91 at [24] citing Spratt v Hermes [1965] HCA 66; Re Governor; Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44
The position in Bonke was supported in the Northern Territory Civil and Administrative Tribunal decision in Simms v Williams.[42]
[42] [2023] NTCAT 16 at [21]
The cases cited in Bonke held that a Territory court created under the Territories power in section 122 of the Constitution is not a federal court and hence not subject to the requirement in section 72 of the Constitution relating to judges’ appointment, tenure, and remuneration. However, neither case suggested that bodies created under section 122 might not otherwise be subject to Chapter III of the Constitution.[43]
[43] See Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 at [9] and Spratt v Hermes [1965] HCA 66 at [17] per Barwick CJ
There have been a number of other cases which have also considered the relationship between Territory courts and Chapter III of the Constitution. In North Australia Aboriginal Legal Aid Service Inc v Bradley,[44] for example, the majority agreed with the following points of argument put by the applicant:
The first is that a court of the Territory may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Parliament. …
The second … is that it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.[45]
[44] [2004] HCA 31 at [29]
[45] Both points were supported by Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [81] per Gauldron J
In North Australian Aboriginal Justice Agency Limited v Northern Territory,[46] the plurality accepted that courts of the Northern Territory “may exercise the judicial power of the Commonwealth in the exercise of jurisdiction conferred upon them by laws made by the Commonwealth Parliament”.[47] It follows that the principle in Kable v Director of Public Prosecutions (NSW),[48] which prevents State courts being conferred functions which impair their institutional integrity and which is incompatible with their role under Chapter III of the Constitution, applies to the Territory courts. Gageler J stated:
The actual result in Bradley has also removed much of the force of the apparent incongruity of Territory courts being distinct from federal courts, and of Territory judicial power being discrete from Commonwealth judicial power. By equating Territory courts with State courts for the purpose of s 71 of the Constitution, Bradley subjects the legislatures of self-governing Territories to the same strictures as Ch III of the Constitution applies to the Parliaments of the States. The result is to afford to citizens resident in Territories the derivative constitutional protection provided by Ch III in no lesser degree than is afforded to citizens resident in States.[49]
[46] [2015] HCA 41
[47] [2015] HCA 41 at [41]
[48] [1996] HCA 24
[49] [1996] HCA 24 at [116]
The plurality in Burns v Corbett, as well as referencing the conferral of federal authority in federal and State courts under section 77 of the Constitution, also relied on the integrity of the federal judicial system for the implications derived from Chapter III:
Under the demarcation of the powers of the components of the federal Judicature contemplated by Ch III, adjudicative authority in respect of matters listed in ss 75 and 76 is to be exercised only by "courts", an appeal from which to this Court is guaranteed by s 73 of the Constitution. In this way, the exercise of adjudicative authority in respect of matters listed in ss 75 and 76 in accordance with Ch III, and not otherwise, ensures that adjudication in respect of all such matters occurs consistently and coherently throughout the federation.[50]
[50] [2018] HCA 15 at [49]
This reliance on implications drawn from Chapter III rather than any inconsistency that might arise due to the legislative conferral of judicial power in State courts through section 39 of the Judiciary Act 1903 has led a leading commentator to suggest that:
The majority approach almost certainly ensures the application of Burns v Corbett to Territory legislatures. Since s 39(2) does not vest federal jurisdiction in Territory courts, an argument based on inconsistency would not have applied easily to Territory tribunals. The implications based on Ch III have a clearer application to prevent Territory legislatures from conferring judicial power on Territory tribunals in relation to matters in ss 75 and 76. The doctrinal coherence in this respect is a positive feature of the majority approach.[51]
[51] James Stellios, The Federal Judicature, (Lexis Nexis Butterworths, 2nd Ed, 2020) at page 594. See also at pp 607–608
The majority decision in Burns v Corbett is premised on the view that judicial power of the Commonwealth, as defined by the matters identified in sections 75 and 76 of the Constitution, can only be vested in the courts mentioned in section 71 of the Constitution. Section 71 relevantly provides:
71 Judicial power and Courts
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.
It is therefore not a question of whether the source of the Tribunal’s power to exercise federal jurisdiction is within Chapter III of the Constitution, such as the power under section 77 of the Constitution to invest any court of a State with federal jurisdiction. Judicial power of the Commonwealth can be invested in Territory courts through section 122 of the Constitution, but in exercising that judicial power Territory Courts are subject to the text and implications of Chapter III, including the requirement that courts not be deprived of minimum characteristics of the institutional independence and impartiality. In my view, those requirements also include the requirement in Burns v Corbett that only a court may exercise of the judicial power of the Commonwealth.
The question of whether Burns v Corbett prevents State tribunals determining matters where the respondent is a party was considered recently by the Victorian Supreme Court in Albyn Queensland Pty Ltd v Australian Postal Corporation (Albyn).[52] That Court adopted the description of Burns v Corbett by Kirk JA in Wojciechowska v Secretary, Department of Communities and Justice:[53]
The Burns v Corbett restriction is thus to this effect: if resolution of the issue in question would involve exercise of the judicial power of the Commonwealth in a matter falling within ss 75 or 76 of the Constitution then it can only be resolved in a court authorised by federal legislation to exercise that power. There are three core issues involved:
(1) Is the proceeding of a kind potentially falling within ss 75-76 …
(2) If so, would resolution of the claim or dispute involve exercise of the judicial power of the Commonwealth?
(3) If so, is the decision-maker a court in the relevant sense?
[52] [2024] VSC 584; see also to similar effect Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 and Australian Postal Corporation v Williams [2024] NSWCATAP 168
[53] [2023] NSWCA 191 at [42] (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing)
The Court in Albyn answered yes to the first two questions and no to the last, with the result that VCAT did not have jurisdiction in that matter. The Court considered the question of whether the respondent can be considered “the Commonwealth” for the purposes of section 75(iii) in detail. Given the recognition, discussed above, that an instrumentality of the Commonwealth can come within the conception of the Commonwealth, and the considerations reflect those presented by the respondent in this matter, it is appropriate to set out the summary of the Court’s conclusions in full.
The features of Australia Post considered above indicate that it is a statutory corporation with governmental functions of an important nature, while also established to operate in many respects as a commercial business.
Australia Post has explicit governmental obligations which are related to government policy and compliance with Australia’s international obligations. Its community service obligations, understood in the context of the provisions as to Australia Post’s reserved functions, are appropriately understood as governmental functions which distinguish it from a corporation operating in the private sector. This remains so even in the context of Australia Post’s subsidiary and incidental functions and powers to conduct businesses and engage in commercial activities which are not inherently governmental and in which Australia Post operates as a participant in a market with private sector operators.
Australia Post has a Board which, pursuant to its statutory functions, is intended to apply its expertise as to sound commercial practice to the operation of the corporation, but always subject to a high degree of government control. That government control provided for by statute is directed to achieving government policies and objectives, and to the public interest as assessed by the responsible Minister. The Board is required to have regard, as with private sector corporations, to financial return to its owner but with the important qualification that the owner is the Commonwealth, and the Commonwealth through the Minister has decision making power with respect to the degree to which Australia Post provides a financial return to the Commonwealth, which can be exercised according to government policy.
There are some features which are consistent with Australia Post being independent of the Commonwealth, including that it is subject to Commonwealth and State and Territory taxation, has no other broad immunity from Commonwealth, State or Territory laws, and engages its employees on terms determined by Australia Post, rather than pursuant to the Public Service Act. These do not, on a holistic analysis, detract from the features of Australia Post, in particular the high degree of control by the Commonwealth executive to which it is subject, which compel the conclusion that it is a statutory corporation that was chosen by the Commonwealth as the outward form pursuant to which the Commonwealth carries on governmental activity.[54]
[54] Albyn at [110]–[113]
In relation to whether the Tribunal was exercising judicial power, the Court in Albyn relied on the following indicia of a power being judicial in nature:[55]
(a) The power is exercised to quell a controversy about existing legal rights by ascertaining facts and applying the law (as opposed for example to making decisions by reference to policy considerations of a non-legal kind).
(b) The exercise of the power is binding and enforceable (including through a process of registration in a court).
(c) The decision making functions involved in the trial of actions for breach of contract and civil wrongs have been recognised as ‘inalienable exercises of judicial power’.
(d) The power extends to making orders traditionally made in the exercise of judicial power, such as orders for damages, injunctions and declarations.
(e) The process by which the power is to be exercised includes hallmarks of the judicial process such as procedural fairness, a public hearing, and the provision of reasons for decisions.
[55] Albyn at [21] (footnotes omitted)
The underlying claim in Albyn concerned an application under the Fair Trading Act 2012 (Vic), the equivalent of the Fair Trading (Australian Consumer Law) Act 1992 in the Territory. The Court in Albyn held that proceeding to hear and determine the claim under that Act would involve the exercise of judicial power. In my view, it is clear that the claim in debt brought by the applicant in this matter, involving a determination of the amount properly owing under the contract between the parties, would involve an exercise of judicial power.
The Court in Albyn did not have to consider whether VCAT was a court which could exercise federal judicial power under the principle in Burns v Corbett. That had already been established in the decision of Meringnage v Interstate Enterprises Pty Ltd.[56] The Court there considered there was no clear authority on which features of a decision-making body should be afforded significance when considering if the body can be characterised as a court:
an answer will turn on an examination of the body’s constitutive legislation, considered in light of history, constitutional convention, and institutional and governmental relationships. It must also be accepted that there is no single model that satisfies the constitutional requirement that a court capable of exercising the judicial power of the Commonwealth be, and appear to be, impartial and independent.[57]
[56] [2020] VSCA 30
[57] [2020] VSCA 30 at [79]
The court placed significance on the lack of security of tenure for the overwhelming proportion of VCAT members given the fixed-term nature of the appointment of members of the tribunal and Ministerial power of re-appointment. The court also relied on VCAT’s composition of a preponderance of non-judicial officers, the varying qualifications of members, and the part-time or sessional nature of their engagement which permits outside activities with only limited restriction. The designation by the legislature as a tribunal and not a court, and particularly not a court of record, was also important. State courts not subject to a strict separation of powers could engage in administrative review, with the duty, in standing in the shoes of the administrative decision maker, to apply government policy in some circumstances. However, having that role as one of the body’s prime functions was not consistent with the status of a court. Finally, the power to refer questions of law to the Supreme Court coupled with an obligation to act consistently with that opinion would not be needed if the body was part of the judicial hierarchy expected of courts.
These factors, along with limited protection against removal, were also cited by various judgements in the NSW Court of Appeal decision in Attorney General for New South Wales v Gatsby.[58]
[58] [2018] NSWCA 254
In the absence of considered argument on this point, it is perhaps inappropriate for this Tribunal to attempt to characterise itself against the benchmark of independence and impartiality. However, it is clear that the concerns that have led to the Victorian and NSW tribunals not being accepted as courts for the purposes of the principle in Burns v Corbett would also apply to the Tribunal. In my view the Tribunal is not a court as required by Burns v Corbett.
That leaves the concern of whether the Tribunal is able to determine for itself whether or not it is exercising federal jurisdiction. In Citta Hobart Pty Ltd v Cawthorn[59] (Citta Hobart) the court accepted that an issue of federal jurisdiction may be part of a matter arising under federal jurisdiction for the purposes of the principle in Burns v Corbett and hence can only be determined by a court. The plurality stated that where there is:
a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.
[59] [2022] HCA 16 at [35]
In Citta Hobart, the appellants raised the defence that there was an inconsistency for the purposes of section 109 of the Constitution between the grounds of discrimination set out in Tasmanian legislation relied upon by the respondent in that matter and the standards accepted under Commonwealth legislation relied upon by the appellant. As that defence was genuinely raised and not “manifestly hopeless”, the Tribunal lacked jurisdiction to determine whether or not the inconsistency arose and was applicable to resolve the issues in that case.
It can be accepted that the respondent’s claim that it is the Commonwealth for the purposes of section 75(iii) of the Constitution and that the Tribunal therefore does not have jurisdiction to hear this matter is genuinely raised and capable on its face of legal argument. The question that arises from Citta Hobart is whether that is enough for the matter to be a question of federal jurisdiction and outside of the jurisdiction of the Tribunal to consider.
In Australian Postal Corporation v Lux Cuttings Pty Ltd,[60] the NCAT appeal panel held that the issue of whether the appellant in that matter was ‘the Commonwealth’ was not a defence or answer to the substantive claims made against it. It merely went to the forum in which those substantive claims could be heard. There was also no need to interpret section 75(iii) of the Constitution but only to apply the agreed meaning in determining whether Australia Post was the Commonwealth for the purposes of that section. Determining whether NCAT had jurisdiction was therefore not itself a matter within federal jurisdiction.
[60] [2023] NSWCATAP 316 at [36]
This approach was also adopted in Australian Postal Corporation v Williams[61] where the NSW Appeal Panel stated the claims about whether Australia Post was the Commonwealth:
simply puts forward a question for factual determination which falls anterior to the justiciable matter, rather than encompassing the heart of “the justiciable controversy” and constituting a “matter” arising under s 75 of the Constitution.[62]
[61] [2024] NSWCATAP 168
[62] [2024] NSWCATAP 168 at [41]
In An & Ors v Australian Broadcasting Corporation,[63] the Victorian Supreme Court discussed the various authorities which had considered the power of a tribunal to determine its own jurisdiction. Harris J concluded:
the Tribunal’s power to decide whether it has jurisdiction will in all cases involve forming an opinion which will enable it either to proceed to hear a proceeding if it concludes that it is authorised to do so, or decline to proceed if it is of the opinion that it does not have that authority. That opinion or conclusion will not have determinative legal effect, but will have the important practical effect of permitting the Tribunal to proceed to hearing, or if there is no jurisdiction, to strike out a matter ….[64]
[63] [2024] VSC 518
[64] [2024] VSC 518 at [134]. This position was also adopted in Albyn at [132]–[133]
In my view, it is clear that this Tribunal has the jurisdiction and duty to determine whether it has jurisdiction in this matter.
Conclusion
I have concluded that the respondent is a government entity entitled to the same immunity extended to Crown in right of the Commonwealth by the operation of section 27 of the Self-Government Act and section 121(4) of the Legislation Act. As a consequence, the respondent is immune from any civil dispute application made to the Tribunal under part 4 of the ACAT Act. In the absence of any other authorising law the Tribunal does not have jurisdiction to hear this claim. I have also concluded that the Tribunal lacks jurisdiction to determine this matter as it is a matter brought against the Commonwealth for the purposes of section 75(iii) of the Constitution which can only be heard by a court exercising federal jurisdiction.
I will therefore make orders that the application is dismissed.
………………………………..
Senior Member D Stewart
| Date(s) of hearing: | 3 November 2023 |
| Applicant: | Mr J Archer, authorised representative |
| Counsel for the Respondent: | Mr J Wherrett |
| Solicitors for the Respondent: | Mr D Walker, corporate counsel |
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