Binding the Monolith

Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 248 ALR 494 (‘Nichols’), 524.

A majority of the Full Court of the Federal Court ( Weinberg Kenny JJ Goldberg J dissenting) held that, as a matter of statutory interpretation, the Anti-Discrimination Act 1998 (Tas) does not manifest in its definition and use of ‘person’ an intention to apply to the Commonwealth.

Forge v Australian Securities and Investment Commission (2006) 228 CLR 45 (‘Forge’), 68 ( Gleeson CJ ).

For example see Gogarty Brendan Bartl Benedict , ‘Tying Kable Down: The uncertainty about the independence and impartiality of state courts following Kable v DPP (NSW) and why it matters’ (2009) 32 University of New South Wales Law Journal 75.

See, eg, art 10 of the Universal Declaration on Human Rights and arts 6 & 14 of the International Covenant on Civil and Political Rights.

Gleeson Murray , ‘Legal Oil and Political Vinegar’ (1999) 10 Public Law Review 108, 111.

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 270 ( Dixon CJ McTiernan Fullagar Kitto JJ ); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 26–27 ( Brennan Deane Dawson JJ ); Forge (2006) 228 CLR 45, 73 ( Gummow Hayne Crennan JJ ).

Namely interstate suits between the Commonwealth and the states.

The Boilermaker principles set out in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 dictate that only Chapter III courts can exercise federal judicial power and that Chapter III courts may not exercise, or be authorised to exercise, non-judicial powers.

Cumes Guy , ‘Separation of powers, courts, tribunals and the state’ (2008) 19 Alternative Dispute Resolution Journal 10, 12.

Ibid 14.

Fleming Gabriel , ‘Tribunals in Australia’ in Creyke Robin (ed), Tribunals in the Common Law World (2009) 84, 89.

Ibid 91.

This question is relatively settled: see, eg, Bropho v Western Australia (1990) 171 CLR 1, which establishes that a positive intention to bind the Commonwealth will ordinarily be sufficient. So long as the matter falls within the jurisdiction of the state, the Commonwealth will ordinarily be bound, even to the extent of enforceable administrative orders. Further, a tribunal which is determined to be exercising administrative power may create binding orders: see Re Residential Tenancies Tribunal (NSW); Ex parte the Defence Housing Authority (1997) 190 CLR 410.

This is because the Commonwealth is a party to the ‘suit’ created by the exercise of judicial power.

See, eg, Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 267 ( Deane Dawson Gaudron McHugh JJ ).

K-Generation Pty Limited v Liquor Licensing Court (2009) 252 ALR 471, 490 (‘K-Generation’).

See, eg, Kerr Duncan ‘State Tribunals and Chapter III of the Australian Constitution’ (2007) 31 Melbourne University Law Review 622.

Ibid (discussing Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267).

For instance, with respect to the Tasmanian Anti-Discrimination Tribunal, Heerey J , in Commonwealth v Wood (2006) 148 FCR 276 (‘Wood’), accepted without question that it was exercising judicial power. When this decision was challenged in Nichols (2008) 248 ALR 494, no member of the appellate bench gave any serious consideration to whether the body exercised judicial power.

See, eg, Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, 313 ( Griffith CJ ); Kotsis v Kotsis (1970) 122 CLR 69, 109 ( Gibbs J ); Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 61 ( Mason J ); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 102 ( Gaudron J ).

(1996) 189 CLR 51 (‘Kable’).

See, for example Kable v Director of Public Prosecutions (1996) 189 CLR 51, 118 ( McHugh Per J ).

(2004) 223 CLR 575.

Ibid 601–2.

(2004) 218 CLR 146 (‘Bradley’).

(2006) 228 CLR 45.

Forge (2006) 228 CLR 45, 75 ( Gummow Hayne Crennan JJ ).

This position was recently affirmed by Kirby J in K-Generation (2009) 252 ALR 471 who, along with the majority, rejected the proposition that Kable only applied to State Supreme Courts. Kirby J stated that ‘it is inconsistent with the language of the Constitution and with the constitutional purpose of the Kable principle. That principle effectively assures Australian litigants that basic institutional standards will be observed, whether in federal or State courts, and also in Territory courts as this Court accepted in North Australian Aboriginal Legal Aid Service Inc v Bradley This is implicit in the membership of all such courts, continued or created, in the one integrated Judicature of the Commonwealth’: ibid 515.

(1999) 200 CLR 322.

Ibid 338.

(2006) 66 NSWLR 77.

Ibid 87.

Their Honours' findings have been subject to criticism, with some commentators concluding that the argument is circular, on the basis that determining what is a ‘judge’ will ultimately be answered by asking what is a ‘court’: see, eg, Kerr, above n 18, 638.

See, eg, Le Mesurier v Connor (1929) 42 CLR 481, 511 ( Isaacs J ); Kotsis v Kotsis (1971) 122 CLR 69, 91 ( Windeyer J ); Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 60 ( Mason J ); Harris v Caladine (1991) 172 CLR 84, 92 ( Mason CJ Deane J ).

Forge (2006) 228 CLR 45, 82–3.

Ibid 67.

Ibid 66.

Chu Kheng Lim v The Commonwealth (1992) 176 CLR 1, 27 ( Brennan Deane Dawson JJ ).

(2004) 218 CLR 146, 167 ( McHugh Gummow Kirby Hayne Callinan Heydon JJ ). The majority went so far as to endorse the earlier comments of Gaudron J that independence and impartiality were essential for all courts and not simply those exercising Commonwealth judicial power: ibid 162–3 (citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 363).

Ibid 152–3.

Ibid 163.

(2008) 248 ALR 494, 546.

(2004) 218 CLR 146, 172 ( McHugh Gummow Kirby Hayne Callinan Heydon JJ ).

In Wood (2006) 148 FCR 276, Heerey J was satisfied that ‘reasonable and informed members of the public’ would think the decision-making body under review ‘was free from the influence of the other branches of the Tasmanian Government, and particularly the Executive’ and observed that if the Executive were to ‘just ring up the Tribunal and tell it how to decide cases … public, political and media attacks on the government would be inevitable’: ibid 293. Justice Heerey also held that there were sufficient legal remedies open to the decision-maker to safeguard against arbitrary dismissal. His Honour concluded that not only would the Minister be constrained by the potential of an order setting aside a dismissal decision, but there would be the prospect of controversial litigation with all its concomitant expense, delay, discovery of embarrassing documents and publicity: ibid 293–294. See also see Northern Australian Aboriginal Legal Service v Bradley (2001) 192 ALR 625, where Weinberg J states ‘[t]here is no doubt that Kable will, in certain circumstances, invalidate State legislation which operates to undermine public confidence in the independence of State courts’: ibid 697.

(2006) 228 CLR 45, 68 ( Gleeson CJ ).

Donaghue Stephen , ‘Judicial Independence: Bradley, Fardon and Baker’ (Paper presented at the Gilbert + Tobin Centre of Public Law 2005 Constitutional Law Conference, Sydney, 18 February 2005).

(2006) 228 CLR 45, 82 ( Gummow Hayne Crennan JJ ).

Wood (2006) 148 FCR 276, 293.

See, eg, Anti-Discrimination Act 1998 (Tas) ss 12, 13, 86, 87, 88, 89, 90, 93.

(2008) 248 ALR 494, 547.

Ibid 548–9.

K-Generation Pty Limited (2009) 252 ALR 471, 495–6 ( Gummow Hayne Heydon Crennan Kiefel JJ ). The Chief Justice, in a separate judgment, agreed that the appointment of a district court judge was an extremely important safeguard, as was the obligation that the licensing court act ‘lawfully, rationally and fairly’ in reaching its decisions: ibid 488 ( French CJ ).

Wood (2006) 148 FCR 276, 283.