Power of State tribunals to determine Constitutional matters
The High Court has confirmed that the Tasmanian Anti-Discrimination Tribunal did not have power to decide a complaint of disability discrimination under the Anti-Discrimination Act 1998 (Tas) where a defence or claim in reliance on the Constitution or a Commonwealth law was genuinely raised.
The case arose from a complaint about access to the development of Parliament Square in Hobart. When completed, one of the entrances would only provide access by stairs. In defence, the respondents to the complaint claimed they had complied with the federal scheme for disability access under the Disability Discrimination Act 1992 (Cth), and that by virtue of section 109 of the Constitution , any additional requirements under the State Act were inoperative.
The tribunal applied the earlier decision of the High Court in Burns v Corbett (2018) 265 CLR 304, where it was held that a State tribunal that was not a court of the State could not exercise judicial power with respect to matters in section 75 and 76 of the Constitution . These include matters arising under the Constitution and matters arising under a Commonwealth law. As such, the tribunal concluded it did not have jurisdiction to determine the complaint. On appeal, the Full Court of the Supreme Court of Tasmania rejected the defence and remitted the complaint to the tribunal for hearing.
The High Court held that the tribunal had reached the correct conclusion on the issue of its jurisdiction.
Queensland tribunals different
In Queensland, unresolved complaints under the Anti-Discrimination Act 1991 (Qld) may be referred to the Queensland Civil and Administrative Tribunal (QCAT) or the Queensland Industrial Relations Commission (QIRC).
The Queensland Court of Appeal has determined that the QCAT is a court of the State (often referred to as a Chapter III court), which means it can exercise judicial power to determine matters arising under the Constitution and under Commonwealth law. This was decided in the case of Owens v Menzies [2013] 2 Qd R 327; [2012] QCA 170 (22 June 2012). The case arose out of a complaint of vilification under the Anti-Discrimination Act 1991 (Qld) where the respondent argued that the prohibition of vilification was inconsistent with the implied freedom of political communication under the Constitution .
The Court of Appeal decided that the prohibition of vilification in section 124A of the Anti-Discrimination Act 1991 (Qld) was not inconsistent with the implied freedom of political communication, and that being a court of the State, the QCAT could exercise judicial power to determine matters involving the Constitution .
In determining that the QCAT is a court of the State, it was significant that the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides in section 164 that the QCAT is a court of record.
While the issue of whether the QIRC is a court of the State has not been determined, the Industrial Relations Act 2016 (Qld) provides in section 429 that the QIRC is established as a court of record. It is likely that the QIRC is also a court of the State.
Access complaints in Qld and the Disability Standards
A complaint of disability discrimination involving access to premises may be made under the Anti-Discrimination Act 1991 (Qld) to the Queensland Human Rights Commission. If the complaint is not resolved and is referred to the QCAT, the tribunal will be able to decide any claim by the respondent to the complaint that it has complied with the Disability (Access to Premises – Buildings) Standards under the Disability Discrimination Act 1992 (Cth).
The High Court decision is Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16 (4 May 2022).
High Court of Australia decisions are available from the Australasian Legal Information Institute (AustLII) website.
