Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCATrans 1 (8 February 2022)

Last Updated: 9 February 2022

[2022] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H7 of 2021

B e t w e e n -

CITTA HOBART PTY LTD

First Appellant

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

Second Appellant

and

DAVID CAWTHORN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON TUESDAY, 8 FEBRUARY 2022, AT 10.00 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ: I will announce the appearance of the parties and the interveners.

MR D.J. BATT, QC appears with MS J.D. WATSON for the appellants. (instructed by Page Seager Lawyers)

MR R. MERKEL, QC appears with MR S.A. BECKETT, MR C.J. TRAN and MS L.E. HILLY for the respondent. (instructed by Hobart Community Legal Service)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MS F.I. GORDON and MS R.S. AMAMOO for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales, appears with MR M.O. PULSFORD for the Attorney‑General for the State of New South Wales intervening. (instructed by NSW Crown Solicitor’s Office)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, appears with MR S.R. PACK for the Attorney‑General for the State of Western Australia intervening. (instructed by Solicitor‑General’s Office (WA)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland, appears with MS F.J. NAGORCKA for the Attorney‑General of the State of Queensland intervening. (instructed by Crown Law (Qld))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, appears with MS K.M. SCOTT for the Attorney‑General for the State of South Australia intervening. (instructed by Crown Solicitor’s Office (SA))

MS R.J. ORR, QC, Solicitor‑General for the State of Victoria, appears with MR M.A. HOSKING for the Attorney‑General for the State of Victoria intervening. (instructed by Victorian Government Solicitor’s Office)

MS S.K. KAY, SC, Solicitor‑General for the State of Tasmania, appears with MR D.R. OSZ for the Attorney‑General for the State of Tasmania intervening. (instructed by Office of the Solicitor‑General (Tas))

MR C.L. LENEHAN, SC appears with MR D.P. HUME appears on behalf of the Australian Human Rights Commission as amicus curiae. (instructed by Australian Human Rights Commission)

KIEFEL CJ: The interveners do not appear on our panels on the screen but can see and hear what is occurring. The Court will also take its morning break. Yes, Mr Batt.

MR BATT: Your Honours, by way of brief overview, the intended course of our oral address is as follows. As to ground 1, we will commence with some general observations to frame the submissions. Having done so, we will go briefly to the points of claim and defence and the Tribunal’s decision. We will then take your Honours to the Full Court’s judgment and address upon its error. Next, we will deal with the correct jurisdictional test, including why the respondent’s “no reasonable prospect of success” construct is, in our respectful submission, to be roundly rejected. In conclusion on ground 1, we will submit that the Tribunal would have been exercising judicial power if it heard and determined the proceeding contrary to the argument put by the Australian Human Rights Commission by the respondent in his second notice of contention filed last week.

Finally, your Honours, we will deal more shortly with ground 2, analysing the relevant provisions and explaining why, in our submission, the present is a case of direct inconsistency within section 109 of the Constitution.

Your Honours, as to the grounds in the respondent’s first notice of contention filed on 3 September and found at tab 10 of the appeal book we would propose, if we might, to deal with those matters in reply if and as may be necessary, having heard our learned friend Mr Merkel’s oral submissions on them.

We turn then, if we may, your Honours, to the first ground of appeal. Especially in light of the multiplicity of written submissions before the Court and the divergence in their approach and content it is, if we may say, desirable to seek at the outset to identify with precision the questions which arise for this Court on ground 1.

Stating it first at the level of some generality, the issue which the ground presents may be described as follows. What approach is properly to be followed by a State tribunal exercising judicial power, which is not a court of a State, in determining whether the tribunal has jurisdiction to entertain a proceeding in which a federal claim or defence is raised by the parties? Your Honours, we use in so saying, if we may, the shorthand expression “federal claim or defence” to mean a claim or defence, the subject matter of which is referred to or is of the nature identified in section 75 or section 76 of the Constitution.

As the Court is of course aware, that issue arises in circumstances where, at least as relevantly stated for present purposes, this Court’s decision in Burns v Corbett (2018) 265 CLR 304, at volume 5, tab 32 of the joint book of authorities, has established that such tribunals cannot exercise adjudicative authority in respect of the matters in those provisions of the Constitution.

However, your Honours, my statement a moment ago of the issue presented by ground 1 was in a sense a broad one. Of course, for example, not all aspects of the required approach of a tribunal arise for consideration in this hearing. My statement did not identify with specificity the particular questions for the Court’s determination – to seek to address with more specificity those matters – and given the reasoning of the Full Court and having regard to how the appeal is now framed by the submissions of the parties and interveners – we respectfully submit that within that broadly stated issue there are two particular questions which arise for decision by this Court.

The first, your Honours, which is necessitated by the reasoning – or precipitated by the reasoning of the Full Court – is this. In order to determine whether it had jurisdiction – I am sorry, your Honours, I will rephrase that – in order to determine whether it has jurisdiction may or must a tribunal of the nature to which I referred earlier consider and conclude upon whether on its merits the instant federal claim or defence would succeed or fail.

Now, pausing there, unless the answer to that question is in the affirmative, the Full Court erred, for, as your Honours are aware, in its judgment, the Tribunal should have assessed our client’s federal defence on its merits. As your Honours know from the written submissions, we say, as does the Commonwealth and as do all States other than Western Australia who are intervening, this particular question is to be answered in the negative, and thus the Full Court’s approach was erroneous. Indeed, with all respect, your Honours, we submit that there can be no doubt of that.

We turn then, your Honours, to the second particular question which we would articulate as arising for decision under ground 1. It presupposes that the first question is indeed to be answered in the negative. The question is this, if your Honours please. What test is to be applied to identify the.....in which, although a federal claim or defence is raised on the face of the proceeding, it is properly to be concluded that the proceeding does not involve a matter within section 75, or section 76, of the Constitution.

Now, your Honours, in our respectful submission, so far as concerns ground 1, that question is the real substance of the appeal in light of the various submissions that your Honours have received in writing. This Court has not previously addressed the question directly and in detail and how it ought be resolved is not settled.

Self‑evidently, your Honours, the question is of real importance, not just in respect of State Tribunals after Burns v Corbett, but also for proceedings in Federal Court and it will be part of our submissions, your Honours, on the proper test that this Court might adopt, that full account be given, not just to the Tribunal ramifications, but to how the test will play out in the Federal Courts.

KIEFEL CJ: Mr Batt, the Full Court in this case did not follow the test propounded by the respondent and some of the interveners in this case. The Full Court applied the test, whether or not the matter was colourable and then proceeded to determine whether the defence was misconceived. That is some distance from the tests which are propounded by the respondent and some of the interveners here. Should this Court determine that wider question of what the test is, or just determine whether the Full Court was wrong in the approach it took?

MR BATT: Your Honour, this Court ought and must determine first whether the Full Court in its approach was in error, and I have addressed in overview on that point. Having concluded that it was in error, all that your Honours need to do to determine that whatever be the test, colourability or something further, here the instant federal defence, the defence under section 109, was on any view not such as to fall within the ambit of that test.

In other words, your Honours may determine it to be desirable to settle upon the precise test to be adopted, but to resolve this matter all that the Court needs to do is identify the error in the Full Court’s approach which turned on an assessment of merits per se and then take the further step of forming the view that whatever be the precise verbiage to articulate the test where a federal defence or claim which is pleaded is so lacking in substance as not to form any part of the real controversy that the current defence, the section 109 defence, could not, on any view, be said to have fallen within the ambit of that test, and that would resolve the matter.

So, I suppose, your Honour, when I say that the second question arises on the court’s decision I should not probably have said that the submissions of the interveners, and in a sense our written submissions, seek to have the Court determine that question in the course of resolution of the matter, but your Honours may not need to go that far.

Indeed, I was just about to come, your Honour the Chief Justice, to ‑ and I will still do so – but to make the submission that whatever test be adopted under that second particular question if this Court answers it, whether the colourability alone test which we espouse all the way to the widest of the tests now proffered, which is that constructed by our learned friend, Mr Merkel, no reasonable prospect of success, whichever of those tests be adopted, in our submission, it is abundantly claimed that in this matter the section 109 defence would not be caught by that test. That is to say, on any view the section 109 defence raised a matter within section 75, or more properly stated section 76(i) and (ii), and that is enough.

So, your Honours, we seek to assist the Court today by formulating and seeking to justify what we would, having analysed the matter, consider as counsel to be the proper test, but in a sense our clients’ interests do not need us to go that far. We do so to seek to assist the Court because on any approach proffered by the parties, even that of the respondents, we say it would be clear that ground 1 ought be upheld.

So, your Honour the Chief Justice, if I return to my attempt to bring these issues to some.....overview, as your Honours know our clients’ position has always been, and it remains, that where a federal claim or defence is raised, pleaded or otherwise raised, the entirety of the matter is in federal jurisdiction save only if the claim or defence is colourable. As we understand it, the Attorney‑General for New South Wales submits to the same effect.

We make that submission, your Honours, having regard to several principles of federal jurisdiction, dicta of this Court, established Federal Court authority and consideration of underlying principle.

EDELMAN J: Mr Batt, stated in those bald terms the proposition might be too broad, might it not? So if, for example, there was a matter that was potentially within federal jurisdiction because what was raised was, say, an issue of diversity between the parties, would it not be open for the Tribunal to, even on your approach, determine for itself on the merits whether or not the defendant was a resident of a different State, assuming that matter to be disputed, and it might even be raised as a defence but it is not a matter that is in dispute inter partes, so to speak, but rather a dispute about the jurisdiction of the Tribunal.

MR BATT: Yes, I follow, if I may say, your Honour, and indeed early this morning I turned my mind to this very question because it is true the test or the question as we have formulated it really was prompted by subject matter claims. Your Honour hypothesises a different source of jurisdiction, diversity jurisdiction.

But, your Honour, we would still submit that the test we articulate is apt to be applied if, for example, the only claim – I will go back if I may – contemplate a proceeding between two persons within the same jurisdiction. One of those persons then brings in another person who is resident in a different State. If the claim under which that occurs is colourable then it may be that the court would properly conclude, or the relevant tribunal, that jurisdiction is not engaged because there is no controversy between those parties within one of the heads of section 76.

But having said that, your Honour, we do accept that, as articulated by us a few moments ago, the question we have sought to propound to focus the inquiry and submissions we would make was precipitated by a matter that turns on subject matter jurisdiction.

GORDON J: Mr Batt, does that mean that there are really two questions that you have – and they are what is the test and if it is colourability, what does “colourability” mean?

MR BATT: Your Honour, we would submit that the meaning and content of “colourability” is well established in the authorities and not in dispute. As your Honour Justice Gordon would have seen, both in the Tribunal and the Full Court, there was no question that the section 109 defence is colourable. Perhaps if I could seek to put it this way ‑ ‑ ‑

GORDON J: You mean is not colourable.

MR BATT: I am sorry, yes, thank you, your Honour. So, for the purposes of our appeal – our client’s appeal on ground 1 – we need go no further than to persuade your Honours that the Full Court erred in adopting an approach that turns on assessment of the merits of the claimed federal defence and taking the further step to persuade your Honours that whatever be the ambit of the narrow test that might filter the rare case where despite a pleading of a federal matter in truth there is no such controversy, in the present case the test would not have been satisfied.

We say, your Honour Justice Gordon, that that is evidently so if colourability is the test. But we say, too, that even if this Court ventured into the matter and determined to adopt the test which included a further element – whether that be the Commonwealth’s “so clearly untenable that it could not possibly succeed” test – or going down the spectrum of Queensland’s real and substantial test to the widest proffered, which is our learned friend Mr Merkel’s “no reasonable prospect” – whichever of those tests be adopted, if they were – plainly, the section 109 defence in the present matter would not fall foul of it.

That is all we need, your Honour, with respect, to make out ground 1. But, if the Court decided to venture into which precise form of verbiage should be adopted, then there are a number of considerations of authority and principle that we sought to marshal that might be thought to bear on that.

So, your Honours, you are faced – as your Honour the Chief Justice identified with your Honour’s first question – with a range of formulations of the test that might be adopted but with a circumstance where, whichever of them be adopted – if one be – we say, ground 1 would prevail. So, in a sense, your Honours, that is an oddity – not, perhaps, the only oddity of this matter – but a striking one – that, even on the respondent’s position, we say it is inevitable that ground 1 would prevail.

As part of that, your Honours, we should make clear that the position of the respondent has moved. At the special leave stage the attempt was to defend the reasoning of the Full Court. That is, in substance, no longer the case despite some faint suggestions to the contrary and, instead, our learned friends for the respondent proffer the summary dismissal test of no reasonable prospects of success.

Your Honours, against the background of those broad observations by which we seek to orientate the more detailed submissions, we would now take your Honours briefly to the points of claim and defence before the Tribunal and to its decision before turning to the judgment of the Full Court.

Your Honours, the points of claim are found in the book of further material – which I trust your Honours have available – and commence – using the pagination in that book – at page 22. We do not seek to tarry here at all, your Honours. All we would seek to do is to note that, starting at page 24, your Honours will see paragraphs 17 through to 23 – your Honours do not need to their absorb their content, but just to appreciate that it is by these paragraphs that the complainants alleged direct and indirect disability discrimination in relation to access to Parliament Square in Hobart, contrary, it was said, to section 16 of the State Act.

Then your Honours will see at page 27 at about point 4 of the page the orders sought by the complainants and apropos of the issue sought to be raised by our learned friend, Mr Lenehan, your Honours will note that, in this case, the relief sought included declaratory and injunctive relief, such relief being within the heads of power available to the Tribunal under section 89 of the legislation.

Then, your Honours, if we could pick up the points of defence, which commence overleaf at page 30, and again without traversing all the denials of the allegations in the points of claim, could we take your Honours please to page 36 where your Honours should pick up at about point 6, paragraph 21A. Your Honours will see, particularly in subparagraph (a)(ii), (iii) and (iv) of that paragraph, 21A, pleadings in relation to the disability standards – to which standards we will return - and then particularly overleaf at (vi) and (vii) on page 37, the assertion of compliance with those standards.

Off that platform the points of defence then proceed to paragraph 21A(b), at point 7 of the page, and after some three subparagraphs as to the scheme, your Honours will see saliently, at the top of the next page, page 38 of the book, two pleadings which do not have attached to them any paragraph designation, but form part of paragraph 21A(b). First, it is pleaded that:

by complying with the DSP, there can be no discrimination under the -

State Act. Albeit, a little elliptically, your Honours, that, in effect, is an allegation that compliance with the Commonwealth scheme of itself obviated a successful claim under the State legislation. Now, whatever one might think about the soundness of that defence, we would say, if we had to, that of itself it raises a matter within section 76(ii). But we do not really need to rest on that, your Honours, because you will then see immediately after that pleading, the lines:

if there is inconsistency between –

and I interpolate, the State and federal schemes:

then, to the extent of the inconsistency, the ADA is invalid pursuant to s 109 -

Now, although as a matter of form, starting with the conditional “if”, that is the allegation of inconsistency. Nothing turns on the use of the conditional and outlines have at all times positively alleged – including in the Tribunal – a case of inconsistency. Now, your Honours, those, while short in their compass, are the pleadings which give rise to the matters now before this Court.

Having identified them for your Honours, might we take the Court to the Tribunal decision, which starts in the core appeal book – or as I will call it, if I may, the appeal book – at tab 1, page 6. Again, we can be tolerably brief in addressing upon it, but we would respectfully consider it to be of use that it be brought - its relevant paragraphs and its course be brought to your Honours’ attention.

So, your Honours we pick up the decision on the jurisdictional application at paragraph 34, which is found on page 14, using the numbers at the top right corner. What your Honours will see is really a two‑stage process. At paragraphs 34 and 39, your Honours will see the Tribunal sets out a succinct and, we say, pertinent and accurate recitation of the relevant principles and authorities. Then, your Honours, the Tribunal’s conclusion founded upon the application – we say the proper application of those principles and authorities - is then seen commencing at paragraph 40 and running through to paragraph 45.

We will not parse those 12 paragraphs, your Honours, but rather draw particular attention to these aspects of them. First, the opening six lines of paragraph 40 which recite the raising of a federal defence, and your Honours will see the opinion expressed at the fourth to sixth lines there, we then draw attention, your Honours, to the last sentence in the last two lines of paragraph 41.

Next, as to paragraph 42 – and mindful of your Honour Justice Gordon’s question - your Honours will see at the start of paragraph 42 the Tribunal identifies that with federal jurisdiction having been engaged it only remains to consider whether the federal issue was colourable and as the Tribunal says, and we say eminently correctly, in the last sentence of that paragraph:

The merits of the federal issues raised by the respondents not otherwise relevant.

Your Honours, we then direct attention to the first line of paragraph 42, the unqualified view that the federal matter raised by our clients was not colourable. Then, if I can do it this way – and I apologise, your Honours – but lines 7 through to 11 of that paragraph where your Honours will see a sentence commencing:

The constitutional issue this raises is not one that on any view can be said to have been invoked to fabricate jurisdiction –

through to the end of the sentence four lines from the end of the page. That is the Tribunal’s reasoning, and it is then summarised in paragraph 45 overleaf. We submit, with respect, your Honours, that that reasoning was impeccable and the conclusion plainly correct.

We would then, if the Court please, take your Honours to the judgment of the Full Court, still in the appeal book, now at tab 4 beginning at page 25. If we may, we would take your Honours to the following paragraphs of the Chief Justice’s judgment, noting that at paragraph 29 at page 35 of the appeal book, her Honour Justice Wood relevantly agrees with his Honour the Chief Justice. So, in his Honour’s judgment we commence, if we may please, at paragraph 4 at page 28 of the appeal book. What your Honours will see here is a paragraph in which the Chief Justice seeks to summarise the Tribunal’s reasoning to which I just took this Court. Your Honours will see in the chapeau the last line:

Essentially it –

the Tribunal:

reasoned as follows -

We would just seek, if we may, your Honours, to draw out these aspects of the dot points that then follow. First, it may be noted, with respect, that his Honour the Chief Justice makes no mention of the important principles establishing that federal jurisdiction arises upon the making of a federal claim or defence and upon arising renders the whole of the matter in federal jurisdiction, regardless of the fate of the federal claim or defence.

Now, those matters, as your Honours have seen, were squarely appreciated, and articulated by the Tribunal, but with the greatest of respect to his Honour the Chief Justice, they find no place in his Honour’s recitation of the reasoning of the Tribunal and, indeed, no place in his Honour’s own reasoning which one sees in the ensuing parts of the judgment.

Perhaps more notably, if the Court please, in this paragraph, there is no mention of section 109. In particular, your Honours, we draw attention to the second and third bullet points which really seem – if we may say, with the greatest of respect – to proceed upon an apprehension – indeed a misapprehension – that it was the positive defence under section 34, the first of those two couplets to which I took the Court in the points of defence that gave rise to the federal issue.

Your Honours will see in the second bullet point squarely a reference to that provision – but not to section 109 – and then coupled with that, in the third bullet point, his Honour moves immediately to that part of section 76 – the second paragraph – relating to when a matter arises under a law of the Commonwealth – without reference to section 76(i) or its phraseology.

Now, we do not mean to make, your Honours, too much of this but it is almost as if, with respect, that his Honour the Chief Justice had not appreciated that the section 109 claim itself was a federal matter, the evaluation of which necessarily would involve the exercise of federal jurisdiction. Certainly, his Honour never articulates that – or addresses how any such evaluation might be permissible on established principle. If it is indeed fair to describe his Honour’s approach in that fashion, it may in part perhaps explain, with respect, what we would characterise as patent error, but it does not alter that error.

Your Honours, having sought to summarise the Tribunal’s approach, his Honour at the following paragraph – paragraph 5 on the next page of the appeal book – then summarises his own reasoning, having said that in his view the Tribunal have erred in its reasoning, and his Honour squarely says in the prefatory lines of that paragraph:

In summary, my reasons for that conclusion are as follows -

and, indeed, we may say this paragraph does summarise.....and in doing so, with respect, it clearly identifies the error of it. As the Court will see, his Honour’s reasoning was – as he identified it to be – first the view that there was on the merits of the question no section 109 inconsistency. That appears from the first three.....which address direct and indirect inconsistency. Then, your Honours will see, in the fourth bullet point – from that foundation, his Honour then states:

It follows –

that is to say, it follows from the absence – in his Honour’s view – of a valid section 109 defence:

that no defence based on s 34 of the DD Act is available in proceedings under the AD Act.

That is to say his Honour concludes upon the availability of the pleaded defence – his Honour rests his approach on a determination of the merits of the section 109 contention. Then, as one sees from the final two bullet points, his Honour reasons that because the defence is misconceived, on account of its perceived lack of merits:

the Tribunal was not called upon to exercise federal –

jurisdiction, and his Honour notes that the defence was not colourable, but that did not matter because of his view of its merits. Now, as we will elaborate, we say that it is an approach, with respect, moored in error.

Between paragraphs 6 and 25, your Honours, one sees the Chief Justice’s analysis of the section 109 question on its merits, and we will not rehearse those paragraphs but rather, if we may, take your Honours straight to the concluding paragraphs of his Honour’s relatively brief judgment, which are to be found at appeal book page 34, at paragraph 26 through to 28. In effect, really, your Honours, we may say these paragraphs reiterate the reasoning that has been recited more shortly in paragraph 5, the summary paragraph. His Honour says:

Because there is no inconsistency between the provisions of the AD Act relied upon by the –

now respondent, the complainants:

and any Commonwealth law, a finding as to whether the design of Parliament Square complies with the Disability Standards is unnecessary. A finding that the Disability Standards were complied with would not preclude the Tribunal from making findings of discrimination –

and then to pick up the paragraph at its conclusion, his Honour says at the end of that paragraph:

However the Tribunal is not bound to make findings as to whether the Disability Standards have been complied with, and is thus not required to exercise federal adjudicative authority.

It follows that the Tribunal erred –

Now, your Honours, I have identified I think that for relevant purposes Justice Wood agreed with the Chief Justice. One sees that at paragraph 29 overleaf, and there only remains in taking the Court to the judgment to make reference to the judgment of Justice Estcourt which commences at paragraph 40 on page 37, and if we may seek to deal with this briefly, with all respect to his Honour, his Honour reasons differently in respect of section 109 and, indeed, at some length, but for present purposes really may be treated as having proceeded in a cognate fashion to the other judges because as one sees at paragraphs 102 to 103 commencing at page 53 of the appeal book, the essence of his Honour’s basis for forming the same ultimate conclusion as the other members of the court is a view that the section 109 defence failed on its merits and that accordingly federal jurisdiction was not engaged.

In other words, his Honour, as the other two members of the Full Court, assesses the section 109 defence on its merits and holds that the Tribunal should have concluded it had jurisdiction for the reason that in his Honour’s view that defence ultimately ought not have prevailed.

Now, with respect, your Honours, we submit that in proceeding on a basis which involved determination of the merits of the federal defence and the forming of a conclusion that whether federal jurisdiction would be attracted in the matter was to be disposed of by the results of that merits assessment, the Full Court plainly erred.

May I interpolate, your Honours, of course what the Full Court was doing was conducting a rehearing of the Tribunal decision and in effect identifying what it considered and held the Tribunal ought have done. In other words, there can be no suggestion that the Full Court as itself a Chapter III court could determine the federal matter, hold that it was shorn away and send the matter back to the Tribunal devoid of it. Rather, the nature of the Full Court’s judgment is to establish, purportedly, what the Tribunal ought have done itself and in adopting the course it did in that respect we say, with respect, that the Full Court erred.

In our submission, your Honours, established authority of this Court to which the Full Court made little, if any, reference compels the conclusion that its approach was fundamentally wrong. To the contrary of that approach the merits of the federal defence were irrelevant to the question of jurisdiction.

Now, your Honours, we should pause to clarify that unqualified proposition I just propounded as to the entire irrelevance of the merits. That unqualified statement is subject to any limited gloss that might arise from this Court adopting any test of the nature which I discussed in response to answers from the Chief Justice and Justice Gordon as to circumstances where despite the pleading of a federal claim or defence, in truth that pleaded claim or defence is to be properly considered to involve no real controversy and thereby not attract federal jurisdiction.

EDELMAN J: Mr Batt, there may also be the limit – I think which you accepted at the start, although I am not sure – that your submissions are concerned with subject matter jurisdiction and not locality or personal jurisdiction. There may be very different questions as to whether the Tribunal can finally resolve for itself questions of locality such as diversity or personal jurisdiction such as whether somebody is a consul or an officer of the Commonwealth. But your submissions are only concerned with subject matter jurisdiction.

MR BATT: Thank you, your Honour. We accept that and, of course, in the circumstances presented by this matter we do not need to, and I ought not have, addressed in terms that extended quite so broadly. We accept that proposition, if we may say, with respect, your Honour. So, what I was seeking to do, your Honours, was, having boldly enunciated the proposition that the merits of the pleaded matter were entirely irrelevant, I just sought to attach some precision to that by acknowledging that, at the very narrowest degree – whether it is colourability alone or, for example, the test propounded by the Commonwealth, were it adopted – there may, in a sense, be a relevance of the merits because even that test formulated by the Commonwealth may, in a sense, be said to involve some very discrete and narrow reference to the merits to establish if it is met.

But, beyond that extremely limited compass, the merits of the pleaded defence were not relevant to the question of jurisdiction, in our respectful submission – and most certainly an approach which turned on deciding the merits of the very thing which the Tribunal could not determine in its jurisdiction is, on established principle, we say, wrong.

Your Honours, given the detailed written submissions that have been provided to the Court by some 10 parties and interveners and the telling circumstance that in substance even the respondent’s written submissions no longer seek to defend the reasoning of a Full Court, we ought – and we hope that we can – be brief in the additional submissions we need to make.....and we would say only the following to seek to make good our case.

We do want to make clear, your Honours, that, in our submission, it is established principle of this Court which compels the conclusion that the Full Court erred. Prompted in a way, if I may go back to it, to your Honour the Chief Justice’s question, to make good the proposition of error in the Full Court – dispositive error – we do not, with respect, need to make – or ask your Honours to make – new law to propound a new test. We do want to be clear. It is established authority of this Court that we look to to support the proposition that the Full Court’s approach was in error.

May I seek to indicate why that is, your Honours. Three preliminary points are not in dispute in that respect but bear mentioning. First, there is no doubt that the Tribunal was able and was required to determine the question of its own jurisdiction. Nothing in our submissions gainsays or detracts from that proposition.

Secondly, your Honours, having regard to the terms of Chapter III and the decision of this Court in Burns v Corbett, the question for jurisdiction was whether entertaining the proceeding would involve the Tribunal exercising judicial power with respect to a matter identified in section 75 or section 76. That is – and harking back to your Honour, Justice Edelman’s question – it was an inquiry turning on the subject matter of a controversy that comprised the matter.

The third anterior or the introductory proposition that does not bear dispute is that the pleaded section 109 defence was, on any view, a matter involving the interpretation of the Constitution within the meaning of section 76(i) of it and also was a defence which, relevantly understood, arose under the Constitution also within the meaning of that provision, that is to say, in subject matter the federal defence put forward was within the compass of that paragraph of the Constitution.

Now, your Honours, these matters – those preliminary matters accepted, in our submission, decided authority of the Court, of this Court concerning federal jurisdiction, dispositively establishes that the Tribunal’s task of resolving the jurisdictional question did not extend to considering the federal defence on its merits, but rather extended no further than identifying that the presence of that defence, and the principles to which we allude in advancing that proposition and the authorities that give rise to those settled principles, shortly stated, are these.

First, it is the very raising of a federal claim or defence that gives rise to federal jurisdiction. As to that proposition, perhaps does not even need me to do this, your Honours, but I will not for a moment seek to take your Honours to these cases but we rely, inter alia, on: Baxter v Commissioner of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 at 1136 - your Honours will find that at tab 29 of the book; Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 373 to 374 - that is at tab 40; and Moorgate Tobacco v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 476, which is at tab 53.

The second of the trifecta of propositions to which we hark is this. If any part of the matter is within federal jurisdiction, the entirety of it is. For that proposition we refer to Felton again at 373 and Moorgate at 472, 476 to 477, with the Chief Justice, Justice Barwick, agreeing at 467. The third of the propositions is, once a matter is within federal jurisdiction it remains so, whatever the fate of the federal claim or defence, whether that claim or defence fails, is disclaimed, is not determined or otherwise. There we refer to Moorgate again, the same pages, and R v Bevan; Ex parte Elias [1942] HCA 12; (1942) 66 CLR 452 at 466 in the judgment of Justice Starke and found at tab 59.

Your Honours, off the platform of the preliminary.....circulated, we submit that, taken together and leaving aside colourability or such other gloss as may be added to it, those principles compel the conclusion that the Full Court erred because the very raising of the section 109 defence necessitated the conclusion that the whole of the matter arose in federal jurisdiction and, as such, on the count of the authority in Burns v Corbett, at tab 32 of the book, the whole of it was beyond the Tribunal’s jurisdiction, and that was so regardless of the merits. Indeed, it was not open to the Tribunal – it would not have been open to the Tribunal to purport to decide the merits.

In short, your Honours, as his Honour Justice Leeming said in Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at paragraph 20, to be found at tab 94 of the book of authorities:

It is basal that, where jurisdiction turns on the subject matter of a dispute –

as here it did:

what matters is the nature of the litigant’s claim, as opposed to its strength or otherwise.

Here, by contrast, on the Full Court’s approach, the Tribunal’s opinion on whether it had jurisdiction would be formed by deciding the very claims that it lacked jurisdiction to deal with. Such circular reasoning is incompatible with and would substantially undermine the operation of the principle in Burns v Corbett. So, your Honours, those are the submissions we would advance orally, in addition to our written submissions, on the question of error in the Full Court.

STEWARD J: Just before you move on, Mr Batt – I am sorry to interrupt you – how do you say one tests or determines whether a federal claim is colourable?

MR BATT: Indeed, your Honour. As the authorities in the Full Court of the Federal Court explicate, one does that by an assessment of – unhelpfully, if I can start with – all relevant circumstances, because they may turn on any given case. For example, there may be – one conceives – some material before the court which evidences an actual improper purpose in the claimant or defendant raising the claim. But, ordinarily, your Honour Justice Steward, one will do so – the court will do so – by reference to the claim or defence itself, and an assessment of whether it is to be concluded on the face of it, in the context of the proceeding more broadly, that it was – its presence is occasioned by an attempt to fabricate jurisdiction.

Now, to pre‑empt my own submissions on the tests that this Court might adopt, an important part of those submissions, your Honour, is that that process itself may and, indeed, most commonly will, involve regard to the merits – and by that I really mean the complete lack of merit – of the instant pleading because, as some of the Full Court authorities say in terms, an inference will be drawn from a view on the face of the pleading or defence that it is so hopeless that it has no proper basis to be present, an inference stands to be drawn of improper purpose.

So, your Honour, indirectly – oftentimes at least – the self‑evident lack of basis, and I mean severe lack of basis, the ex facie lack of basis of a pleading – will feed into a conclusion of colourability. It is for that reason, your Honours, perhaps really ultimately, that we – Ms Watson and I – seeking to assist the Court, would suggest the test of colourability alone has the gloss on the lack of a merits assessment because we say, your Honour Justice Steward, that the colourability test thereby accommodates some regard, but not undue regard, indirectly, to the question of the merits of the defence or claim, without turning of its nature or operation on the merits or lack thereof directly per se.

With the greatest of respect to the learned interveners and the tests that they propound, all of them, even the Commonwealth’s, in our respectful submission, are tests which by their nomenclature and in their undertaking, direct regard to an assessment directly of lack of merit.

EDELMAN J: Mr Batt, colourability.....is ultimately premised in a conclusion of abuse of process, is it not?

MR BATT: Your Honour, if we might, we would seek to express it slightly differently, without in substance disagreeing with your Honour. It is a form of abuse. But, your Honours, we submit that its role in this context has been given to it in at least the Full Court of the Federal Court, not on account of it being a form of abuse, but because by its nature it is apt to identify claims and defences which in truth give rise to no federal controversy.

To put it differently, and I trust this is responsive to your Honour’s question, it would, in our respectful submission, be logically erroneous and, with respect, the respondent seeks to do this, to reason as follows. Colourability is an abuse, therefore any other form of abuse will be, and should be, sufficient to form part of the test, for present purposes. That, your Honour, is a logical syllogism.

Colourability is an apt notion for the purposes of the test in question because where one ought properly conclude, including by reference indirectly to the lack of merit, that a claim is brought for the improper purpose – objectively considered – of establishing or fabricating jurisdiction, as a matter of human discourse, such a claim or defence, in truth, represents no part of a controversy between the parties.

So, your Honour, we say it is an abuse, but the driving relevance of it is, pure and simple, such an inquiry assists one to identify cases that in truth embody no controversy, a matter in which no part of the controversy between the parties requiring to be quelled by the application of judicial power involves the matter which on its face is pleaded in the instant claim or defence and I was going to come back ‑ ‑ ‑

GORDON J: Is that to say anything more than it is an objective assessment and, second, that questions like lacking in substance or phrases like that might be unhelpful? I raise that for this sense, because if you look at Burgundy Royale they adopt language like “could not be said to be unarguable”. In Johnson Tiles in the Federal Court they raised it – there had to be, by its very nature, denied its character as an element of any matter. Do you accept that sort of objective assessment?

MR BATT: Thank you. Your Honour, we embrace those propositions, and they form part of our argument. We say, contrary to what is put at one point in the respondent’s written submissions, colourability, although it is a purpose inquiry, is an objective conclusion and it does, as those dicta to which your Honour refers, state – it does embrace an important element of regard to the merits from which indirect inferences are drawn.

At the end of the day, your Honours, in submitting to seek to assist this Court that the adoption, if it occur, of any test of the nature under consideration ought be limited to colourability alone, a significant part of our analysis is that any test that looks further to the merits and turns on them is – if your Honours will pardon this language – a slippery slope, and unduly wide. Conversely, colourability is tightly controlled by its fundamental nature as an objective purpose inquiry but does accommodate regard and sufficient but not excessive regard to the merits.

KIEFEL CJ: Mr Batt, is it important to bear in mind that the question here is what the Tribunal is to consider, not a court, and that in particular may have relevance to the question of abuse of process?

MR BATT: Yes, with the greatest of respect, we would agree, your Honour. Of course, were the Court to adopt any formulation for what I am calling this test, it would be a test that fell to be applied both in the Federal Courts and in the tribunals of States that are not courts of a State but exercise judicial power, but we embrace the proposition, your Honour. Indeed, part of our submissions would be that – take, for example, the formulation proffered by the Attorney‑General for Queensland, real and substantial. Now, on some views that phraseology in truth means no more than colourable but, on its face, it would seem to extend further.

KIEFEL CJ: That raises a question of whether or not this Court in this case should proceed to determine a rule to be applied for all purposes across the courts or whether it focuses upon the Tribunal in this case.

MR BATT: Yes, your Honour, and we for our part in making these broader submissions are really seeking to address matters raised by the interveners in circumstances where our position has always been colourability alone, but as I sought to articulate earlier, for the purposes of disposition of this appeal and disposition in our clients’ favour we quite agree, your Honour, that it is not necessary for the Court to pronounce with that width.

What, perhaps not entirely responsively to your Honour the Chief Justice’s question, I was seeking to elicit is that because the test if it were to be formulated would fall to be applied in the courts and in State tribunals we would submit that it is important to pay regard to how it might fall to be applied in those tribunals, and for that reason, your Honour, I was alluding to the Queensland formulation. One would have State tribunals asking themselves, I will have jurisdiction to hear this matter if the federal claim or defence is not real and substantial. We say that is an invitation to – well, unpredictable results and a broad limitation of federal jurisdiction, a broad erosion of the operation of the negative implication arising from the Constitution which Burns v Corbett established.

Now, your Honours, with those questions having been asked of me and answered I trust, at least to some degree, it may be that I can move somewhat more quickly through what I had been about to come to, namely, what ought be the proper test, what test ought be adopted if one be adopted. No doubt the Court will indicate if it does not seek to be addressed upon those matters on account of the consideration that it may not be necessary for them to be decided in order for this appeal to be disposed of.

As I think, if I may say, would have emerged from the course of submission and question to date the underlying point of principle which gives rise to this question in circumstances where Burns v Corbett has been decided is that there will be some ostensible federal claims and defences which, although raised on a face of the proceeding, as a matter of substance do not, in truth, represent any true controversy between the parties which requires to be quelled by the application of judicial power and, as such, do not, by their presence, render the matter in federal jurisdiction.

I used the phrase earlier, “as a matter of human discourse” – substantively analysing the matter, some claims really on their face though they may lead to one effect, do not, in truth, give rise to a federal claim or defence.

Your Honours, as I think has been established or identified rather, all parties and interveners accept that that will be the case where the federal claim or defence is colourable. There is no opposition to the deployment of that notion as articulated and elucidated in the authorities. The question – and, perhaps it is not a question that your Honours will feel necessary to decide – but the question, if it be entertained, is whether colourability adequately identifies the relevant class of cases or whether this Court will recognise any additional category where the same conclusion is to be reached and, if so, how that category ought be described.

Perhaps it is apparent, but I should note in any event for completeness that in this regard we are not addressing claims and defences that are so entirely disparate as not properly to be seen to be part of the matter. That is a separate inquiry. We are looking to the substance of the claims.

What we would particularly seek to do – to the extent your Honours wish to be addressed upon these issues – is to deal with and to identify why, anything else aside, the “no reasonable prospect of success” formulation now landed upon by the respondent, is to be rejected.

In doing so, your Honours, we should note that although at paragraph 7 of the respondent’s written submissions it is said that he adopts the submissions and the reasoning found in the written submissions of the Commonwealth at certain paragraphs – viz 13 to 22 - in fact the respondent’s position and his reasoning are quite different from and are incompatible with the content of those paragraphs of the Commonwealth’s submissions. The respondent’s contention can in no way be reconciled with or said to amount to the same as that of the Commonwealth nor can it be said to be ostensibly supported by the same considerations.

So, your Honours, turning as briefly as we are able to to the submissions of the respondent favouring, or supporting the adoption of the “no reasonable prospect of success” test, we say these things. First, on analysis, the written submissions of the respondent give no basis in authority or principle which supports the adoption of any such test and there is none. To the contrary, for a number of reasons to which I will now come, the respondent’s construct is demonstrably unsound.

First – and, your Honours, we would submit decisively – the respondent’s formulation is by its nature fundamentally inappropriate for fulfilling the task at hand, that is, for identifying claims and defences which in truth represent no controversy. Why is that? The formulation is no reasonable prospect of success. That does not mean no prospect. It means some prospect but not any reasonable prospect.

Your Honours, the “no reasonable prospect of success” formulation was considered in the context of summary dismissal – which is its provenance – by this Court in Spencer v Commonwealth (2010) 241 CLR 228, found in volume 11, tab 77 of the book of authorities. It was there made clear that the conclusion that a proceeding has no reasonable prospect of success does not require that the proceeding be said to be – or seem to be untenable or hopeless. One sees that at paragraph 24, in the judgment of Chief Justice French and Justice Gummow, and through paragraphs 53 to 60, in the judgment of Justices Hayne, Crennan, your Honour the Chief Justice, and Justice Bell.

Put another way, your Honours – as Spencer makes clear, particularly at paragraph 54 – the “no reasonable prospect of success” test turns on an assessment of prospects of success, not on certainty of outcome. At the level of English language – at the level of principle – a federal claim or defence that is not bound to fail and rather has some prospect – however unreasonable that might be thought to be – is a part of the instant controversy. It cannot be said to be so devoid of content that in truth it gives rise to no question in issue. That is our first point, and we say, really, enough.

But then we say this, if we may, your Honours. The respondent materially in his submissions seeks to place reliance on the doctrine of abuse of process to support the adoption of his proposed test. With respect, that ought be rejected. I partially touched on this in answer to Justice Edelman’s question and I will shape my oral submissions at this juncture accordingly, but we say briefly these things, if your Honours please. Abuse is not an apposite concept for present purposes. As was said at paragraph 22 of the respondent’s own submissions:

abuse of process is always concerned ultimately with the protection of the court’s processes –

Picking up my response to Justice Edelman, we are not here concerned with that – albeit that it may not lack relevance – we are concerned with identifying the arising or otherwise of federal jurisdiction.

So, as a broad umbrella notion, we say abuse is not, of its nature, an all.....ought not be seen to be of relevance, rather colourability is relevant, albeit a species of abuse for the particular reason that I identified or sought to identify in answer to your Honour Justice Edelman’s question to me a little while ago. Then, your Honours, we note this. Paragraph ‑ ‑ ‑

EDELMAN J: Mr Batt, just before you move on from that, why could it not be said that anything that amounts to an abuse of process, whether it is for a particular category of being unjustifiably vexatious or oppressive, or so on, is a matter which the court determines should not be adjudicated between the parties, because to do so would involve an abuse of its processes?

MR BATT: Your Honour, taken in those terms, we would not cavil with the proposition, that is to say courts are always – all courts are in control of their processes, and that doctrine exists to prevent them being abused – to prevent matters coming before them – and being entertained by them – which by nature are abusive.

But, your Honour, what we would seek to say, with respect, is that that is not so much to bear upon the present question which is what is the proper articulation of the class of cases which, despite the presence of some federal pleading, do not in truth involve a controversy of that nature. That, we would submit with respect, is one inquiry.

More broadly – relatedly, but distinctly, your Honour – would be the question of whether a matter is sufficiently an abuse that the Court should strike it out – or dismiss it for that reason. So, yes, if a matter is an abuse, it is liable to be summarily dismissed or otherwise put out of the court’s purview, but that need not be for jurisdictional reasons.

So your Honour, I was going in a way to elaborate some matters of tort from that question immediately. But we would submit that, in summary terms, the doctrine of abuse is broad, it is open‑ended, it is developing, and to adopt such a broad approach would very substantially alter and widen the range of matters that might still be said to be within the jurisdiction of State tribunals, albeit that they involve a federal claim. Now, it may be that nevertheless such matters will be dismissed as abuses but not, we would submit, on jurisdictional grounds. I trust that is responsive to your Honour’s question?

STEWARD J: Mr Batt, before you go on, just so that I understand, your test of colourability, does it necessarily require a conclusion about the objective purpose for why the claim has been put up, namely, to fabricate jurisdiction, or is it sufficient that it is objectively utterly hopeless, without any conclusion about purpose?

MR BATT: The answer to your Honour is the former. Colourability turns on a conclusion of the proscribed purpose and can only be said to be established when such conclusion is reached. How one might reach that purpose is not foreclosed to a court but will commonly turn on indirect inferences drawn from an ex facie complete lack of merit, but there may be cases where the conclusion is drawn for other reasons.

EDELMAN J: So a person who the court is satisfied is genuinely and honestly raising a claim that is utterly hopeless and that is, say, a sovereign citizen claim that has been raised consistently by that person in a number of cases, but is not doing so for the purposes of fabricating jurisdiction, then that would preclude the exercise of authority by the tribunal?

MR BATT: Your Honour, if the Court were of the view that – or the tribunal – that there was not objectively considered the proscribed purpose of an improper fabrication of jurisdiction, that would preclude a finding of colourability and thereby mean that jurisdiction in the tribunal was unavailable. It might be said, your Honour – and we accept this very much – it might be said for the Commonwealth that a principal consideration in support of its propoundment is that there may be cases where colourability is not engaged because the court or tribunal for some.....on account of some material can conclude there is not improper purpose despite the lack of merit in the claim, and it might be said that that is a principal reason for adding more beyond colourability, for example, the limited formulation that the Commonwealth suggests.

I was going to come to it, but I should say at this juncture, your Honours, we very much accept that the test for which the Commonwealth contends and Victoria.....is open to be adopted by your Honours. We do not seek to submit overly strongly against it. We would seek to do no more than to identify some considerations which may bear upon whether it ought be adopted and which we would perceptually submit militate ultimately in favour of colourability alone.

But we very much accept there are bases in authority and principle and analysis that support the Commonwealth’s test and that it is open to your Honours of course to adopt it and, as we principally emphasise, if it be adopted, on any view, and as the Commonwealth itself explicitly says in its submissions, our clients would still succeed on ground 1.

What we do submit more firmly, more committedly, is that the respondent’s construct, whilst our clients would still succeed on it if it were adopted, the respondent’s construct is demonstrably unsound, in our respectful submission. Your Honours, I see the time. Would now be convenient?

KIEFEL CJ: Yes, it would, Mr Batt, thank you. The Court will adjourn.

AT 11:14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ: Yes, Mr Batt.

MR BATT: Thank you, your Honour. To continue as briefly as possible with our treatment of the respondent’s suggested formulation, and to conclude on his attempted reliance on the doctrine of abuse of process, we note, your Honours, that in his own submissions at paragraph 20, the respondent avers that the scope of the abuse of process doctrine is not fixed, continues to develop and that how it is to be applied will vary over time, including in accordance with statutory modification.

Your Honours, we agree that that is the case, but we submit that such a changing doctrine is singularly inappropriate to be used as a base upon which to fashion the test for determining the immutable question of when a federal matter arises.

All other things apart, so far as concerns abuse of process, it is to be borne in mind the nature of the present matter and, contrary to paragraph 11 of our learned friend Mr Merkel’s written submissions which seeks to characterise generally matters which are palpably weak or misconceived as being abuses of process, we say that is too broad a brush but, in any event, would not be apt in the present case to pick up the circumstances of this matter.

The final proposition we advance in respect of the respondent’s formulation is this, if your Honours please. The formulation of no reasonable prospects of success is, for present purposes, foreign in its provenance and would be deeply problematic in its operation, and we make these remarks in aid of that.

First, as your Honours would of course have to mind, the formula proposed by the respondent is the modern test for summary dismissal which was in the federal sphere, for example, introduced into the Federal Court of Australia Act by section 31A only 16 or 17 years ago in 2005 and into the Federal Court Rules 2011 by rule 26.01(1).

We submit, your Honours, having regard to the function of the putative test under submission, that there is no basis to adopt such a test of such provenance here and, indeed, none is given by the respondent. We are concerned with a constitutional test. A statutory formulation recently adopted by certain legislatures has no place.

Moreover, your Honours, we submit that it is immediately conceptually problematic to contemplate that the test that might apply for these Chapter III purposes both in non‑curial State tribunals exercising judicial power and Federal Courts, as being the same test which courts adopt and apply to dismiss claims and defences on the basis that their merits are so weak that they ought not be permitted a final hearing.

Then we say, your Honours, that by its nature the respondent’s construct would materially narrow federal jurisdiction, thereby both leading to proceedings remaining in State tribunals which on established principle do involve federal matters, and at the self‑same time significantly restricting the authority of Federal Courts in matters that come to be assessed by them.

We note, your Honours, that the contemplated test - the test contemplated by the respondent, that is – is materially wider than the Commonwealth’s test, itself drawn from the form of summary dismissal formulation in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at tab 44 of the book. Indeed, our learned friend Mr Merkel’s written submissions at paragraph 14 are candid and frank as to this width. In our submission, the width of the test is singularly inapposite.

Finally, your Honours, we submit that involving as it does plainly an assessment of merits, the test would be inappropriate and problematic in its operation. It would draw tribunals of States into dealing with issues that under the Constitution are preserved to Chapter III courts. In practice, it would substantially undermine the rule in Burns v Corbett. It would be unpredictable and uncertain in outcome. Your Honours, to conclude on it, importantly it would frequently involve lengthy hearings and such hearings would be apt to permit evidentiary and factual disputes.

To be clear what I mean by that, your Honours, is that the deployment and the termination of the test in any given matter is a task which, at least in the appropriate case, permits of factual and evidentiary disputes. A court or tribunal tasked with applying the test propounded by the respondent is, in effectuating it, able and, where relevant, would assess matters of fact and evidence, and so much is explicit from the remarks of Chief Justice French and Justice Gummow in Spencer v Commonwealth to which I have already referred at paragraph 22 where their Honours said that this self‑same test – how their Honours were considering it in the context of summary dismissal – their Honours said this test would:

include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case –

No test of that nature ought be entertained for present purposes, in our respectful submission.

Your Honours, can I then move – and I think I can do this more briefly in light of the exchange between Bar and Bench that has occurred prior to the break – can I then move more briefly to the test propounded and proposed by the Commonwealth, Victoria and Queensland. In doing so we will focus on the Commonwealth’s formulation, Victoria’s manifestly untenable phraseology is essentially to the same effect, and for reasons of time we will not deal with it separately but we will make some brief remarks on the real and substantial test proffered by Queensland.

Your Honours, as I think I have acknowledged but I would wish to be clear about this, it is with a certain circumspection that we advance a proposition that your Honours, if adopting any test, ought adopt a test of colourability alone. First, for the reason that for our clients’ interests it does not matter which test might be adopted but at the level of substance we have that circumspection, your Honours, because as a matter of authority, as I said, the question is open, we entirely accept that there are dicta of this Court and other courts that support to some degree the Commonwealth’s position, we accept that to a limited degree at least the section 78B jurisprudence does likewise, and we accept that the level of underlying analysis and principle there is basis in the Commonwealth’s formulation.

So, your Honours, we do not for a moment make a submission that the formulation of the Commonwealth ought not be entertained. All we seek to do is put forward relevant considerations and submit that, on balance, colourability alone is a preferable endpoint. But having made those remarks in favour, as it were, of the Commonwealth’s formulation, unless it be thought that Ms Watson and I are here to make out the Commonwealth’s case ‑ ‑ ‑

KIEFEL CJ: Just before you go on, Mr Batt, what do you say the test for colourability is?

MR BATT: Your Honour, the test for colourability – and I do not mean not to answer your Honour directly, but can I say at the outset it is to be seen in terms in Burgundy Royale or Johnson Tiles and Rana v Google, the test for colourability is where it is to be concluded that the federal claim or defence owes its presence for the proscribed purpose of improperly fabricating federal jurisdiction and I will come to a conclusion on this topic in a moment, your Honours, to the considerations which – although I have touched on some of them, we bring to mind in supporting a test that looks only to that notion as so analysed.

GAGELER J: Mr Batt, first you find your federal claim or defence, I suppose, and then you will determine whether it is colourable. To have a federal claim or a defence, surely you need something that is articulated and as articulated is not incoherent.

MR BATT: Yes, your Honour. We accept that with one gloss, if I might. As authority establishes, it may be that the Court itself identifies a federal element that the parties have not themselves identified and that would serve to produce the conclusion that the matter is in federal jurisdiction. But where one is looking – as we – as your Honour contemplates – are looking at claims and defences made by the parties, that is so. If it is not there on the face of the constituent elements of the proceedings – the pleadings or.....a claim or the like – the inquiry does not arise. If it is there – and, perhaps, if one contemplates the extreme scenario where it is not in English or it really is in language that no sensible person can decipher, well that, of course does not involve a federal claim.

So, of course, your Honour, it is a spectrum and the hard task is what formulation captures what should be captured but does not go too far. At the end of the day, at the heart of our contention, is that all of the interveners’ tests embrace too widely an assessment of merit whereas colourability – in the way that I have sought to describe in answer to earlier questions – does permit of assessment of merit or lack thereof but in a circumscribed, limited and we say appropriately indirect manner.

GORDON J: Mr Batt, may I just ask one more question that I will not ask again? I notice in answer to both the Chief Justice and Justice Gageler that you did not extend it to that which had been adopted by Johnson Tiles in respect of something which fell within, as I understand, paragraph 88 – colourability being something where the very nature of the claim denied it having the character as an element of any matter or controversy. Do you accept that?

MR BATT: Your Honour, we do accept that – save to say that if a view as to such matters was fought in the instant case properly true in turn lead to a conclusion by inference of improper purpose, one would have colourability. But it is the essence of our distinction between the test we suggest and that for which the Commonwealth contends that, under colourability, merits or bases, or prospects, or whatever one might say, are not themselves directly the focus of the inquiry but, rather, may come in indirectly.

So, we agree, your Honour, that one first – to come back to Justice Gageler’s question of a moment ago – one identifies the federal claim and then one asks if it is colourable. That conclusion to be drawn from what is available to the court – particularly the pleadings – leading, ultimately, to a conclusion as to whether the proscribed purpose – to which I alluded in answer to the Chief Justice’s question – is or is not to be seen as satisfied and made out.

KIEFEL CJ: Would you say that the inquiry as to colourability is whether there is in truth a federal claim?

MR BATT: We say, your Honour, that ‑ ‑ ‑

KIEFEL CJ: I say “in truth” – rationally, not incoherently – on the face of it and objectively there is a federal claim.

MR BATT: Yes, your Honour. We say, where there is colourability, what your Honour has just articulated is a case. In truth, there is not a claim of that nature. So, to put it differently, colourability is, in our submission, an apposite notion to bring to bear to identify the cases where that which your Honour just referred to is the case. But, to put it differently, the task at hand is to identify this narrow class of cases which do not, in truth – if one wants to put it that way – involve a federal element despite what is on the face of the proceeding. Some articulation is necessary to identify what matters will or will not to be seen to be of that nature. We submit colourability is a notion apt to produce the requisite conclusion.

Where there is colourability there will not be, in truth, a controversy federal in nature. We say one does not need more than colourability to answer that inquiry. But we accept that it is a nice question, and that a test such as the Commonwealth is certainly one that can be entertained and has some support.

Apropos of that concluding statement of mine, your Honours, we though do point to these difficulties – if we, with respect, can put it that way – pertaining to the Commonwealth and Victoria’s formulation and, a fortiori, that of Queensland.

First we say it is not clear why a test for summary dismissal – that being what the Commonwealth’s formulation is – first formulated decades ago in General Steel – should now be adopted to resolve the constitutional question that I have identified. But, importantly, your Honours – even putting that provenance aside – we identify this. In General Steel itself, at page 130, Chief Justice Barwick referred to the test as being one not:

reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

Indeed, in General Steel, there was such argument to produce ultimately the conclusion of untenability. So, we respectfully submit that it might well be doubted that a test which is apt to involve such argument is appropriate for the jurisdictional inquiry to be undertaken in State tribunals as well as Federal Courts.

In alluding, as his Honour the Chief Justice did, to cases where argument is unnecessary to evoke the futility of the claim, one perhaps comes close to the type of motion – your Honour Justice Gageler – that we would apprehend may have been to your mind. What the Chief Justice is identifying is – narrow though this formulation is – it is not restricted to such cases. We say conversely the colourability test does not have that width.

Now, your Honours, we note that at paragraph 18 of the Commonwealth’s written submissions, its proposed test is described as a test of “demonstrated certainty of outcome”. That phrase is from Spencer at paragraph 55. But we do submit that care is needed with it – it sounds so final and determinative, but the word “demonstrated” we take to mean something that has been shown – potentially as the Chief Justice said in General Steel, after argument.

Then finally, your Honours, as to the reliance of the Commonwealth and Victoria and other interveners on the section 78 jurisprudence – which of course is a section which, by its language, replicates some of the phraseology in section 76 – we submit, your Honours, that the dicta that have fallen from courts, including this Court, in respect of the inquiry that that section mandates, and a desire for consistency with such dicta, should not drive the Court’s conclusion – if it determines to make such a conclusion – on the constitutional question under discussion. Those authorities are diverse in their approach and their language, and they may in due course, in our respectful submission, themselves attract further attention.

We also say these things propositionally, your Honours. First, the section 78B cases are for the most part intermediate or lower courts or decisions of single judges of this Court. They use a variety of terms, frequently wider than the Commonwealth’s conception – and thereby not directly supportive of it – for example, “substantial” or “real and substantial”.

Thirdly and conversely, when those cases are examined, it is evident that a number of them are in fact cases of a type that Chief Justice Barwick referred to in General Steel in the passage to which I alluded – cases where argument is unnecessary to evoke the futility of the plaintiff’s claim – cases that do not bear argument on the question that is, whereas the Commonwealth’s formulation goes wider than such cases.

Although they are not in the joint book, we as examples of such matters refer to two cases cited in our learned friend the Solicitor‑General for the Commonwealth’s written submissions in footnotes 46 and 48 – Daniels v Deputy Commissioner of Taxation [2007] SASC 431 and Danielsen v Onesteel Manufacturing [2009] SASC 56.

Finally, your Honours, we observe that some of the section 78 cases on which the interveners have sought to place reliance are in truth of another genre again where the varying nature of the pleaded ostensible federal matter was just as a question of subject matter not within section 76 of the Constitution.

Green v Jones at volume 14, tab 104, and the judgment of Justice French as his Honour then was, in Nikolic v MGICA at tab 109 are examples. Nikolic, for example, was an allegation that the Constitution was itself invalid and his Honour said well, that does not even come within the classes of cases to which the Constitution itself alludes. So there is a disparate group of authorities within the section 78B field and we say it provides most limited assistance in support of the Commonwealth’s formulation.

Finally and briefly on the real and substantial formulation of Queensland, we just say these things if we may. Firstly, we are conscious of the recent deployment of that formulation in a particular context in Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 which is in the book of authorities. But we suggest, with respect, that linguistically from consideration of real and substantial formulation it may not be the optimal phraseology to use to direct attention to whether a particular pleaded claim or defence is in truth any part of a justiciable controversy between the parties. We say the formulation is protean one, less specific and less clear in what it encompasses, and thus less predicable in supplication and with evident potential to be applied unduly widely.

Apropos of that last remark, for example, your Honours, and with respect, it is unclear from the submissions in writing of the Queensland Attorney themselves at paragraphs 23 and 25 whether the formulation is used to mean no more than claims that are horrible and hopeless, in which case one is back to the Commonwealth’s conception - and we submit that with its greater specificity it would be preferred – or whether a wider ambit is needed, in which case the difficulties we suggest would obtain.

Finally, your Honours, on that formulation of Queensland, we would refer this Court to the extrajudicial writings of Justice Leeming in his work Authority to Decide, 2nd edition 2020 which has been added – we apologise for the lateness - yesterday into the supplementary book of authorities and materials. Your Honours do not need to go to it, but it is to be found at page 87 and following of that supplementary book where at pages 94 and 115 to 117 his Honour suggested extrajudicially but, we submit persuasively that the notion of real and substantial is for present purposes a problematic one unclear in meaning and to be eschewed.

Your Honours, in conclusion on the proper test which has been the subject of submissions from us for the last period, we would at any rate as succinctly as we can draw together why it is that we on balance would urge the adoption of a colourability test alone, whilst accepting other conceptions are open and emphasising that on any of them our clients would travail on ground 1.

First, there are dicta of this Court supporting such an approach and so at the level of the High Court of Australia itself we refer, for example, to two decisions in the joint book. We will not take your Honours to them. The first is Hopper v Egg and Egg Pulp Marketing Board (Vic) [1939] HCA 24; (1939) 61 CLR 665, the dictum of Justice Evatt at page 681. That is in tab 45 where his Honour said:

The legal validity or strength of the plaintiff’s constitutional point is quite immaterial so long as it is genuinely raised.

We interpolate oftentimes in the authorities one sees, especially the older cases, the notion of “genuine” used as a contradistinction to “colourable”. We also refer to Rogers v Jordan [1965] HCA 25; (1965) 112 CLR 580 at 591, found at tab 75, in the reasons of Justice Windeyer.

Our second submission is that at the Federal Court level, colourability is well established as the relevant criterion, and your Honours will have seen from our written submissions some treatment of those decisions. We will not rehearse it, but we refer particularly to Burgundy Royale, Johnson Tiles, Rana v Google and Qantas Airways v Lustig, all of which are in the joint book.

Finally, at the level of principle or fundamental analysis, we submit that when one has regard to the purpose or function of the test under consideration and the articulation of colourability in the authorities, the notion of colourability is apposite and sound in principle, and sufficient. I have addressed a number of aspects of that. A claim which is colourable or defence colourable is clearly not part of the controversy, so the notion is apt to answer the inquiry in question. Despite suggestions to the contrary in the respondent’s written submissions, colourability is an objective conclusion, bearing in mind that in Agtrack this Court established that the inquiry must be objective.

Colourability, by turning on purpose but embracing reference indirectly to merits would, we submit, be a test, your Honours appropriate in its metes and bounds without going – or without danger of being applied too widely and sufficient in its operation to capture the ambit of matters that ought be subject of this very narrow assessment.

EDELMAN J: Mr Batt, you mentioned a moment ago that you accept that the colourability test is objective. Can I just ask what you mean by that because, depending on what one means by an objective approach to colourability, your approach and the Commonwealth’s approach seemed to almost coalesce. Do you mean on the one hand that it is a.....analysis in all of the circumstances of what the Court would conclude the subjective purpose of the litigant is, or is it an objective analysis in all the circumstances of what a reasonable person in the litigant’s position would take, so that a reasonable litigant raising a hopeless claim would be taken to do so for improper purposes if the claim is hopeless to such a degree that that inference could be drawn of a reasonable person even if not of this particular litigant.

MR BATT: Your Honour, we mean the former, but that is not to gainsay that some of the inquiries to which your Honour alluded in expressing the second alternative may still be the subject of advertence in deciding the inquiry in the former sense.

EDELMAN J: Just so I understand, your test is it is ultimately a subjective test then, but one is looking objectively at all of the circumstances to draw a subjective conclusion?

MR BATT: Yes, your Honour. So one to identify colourability does not need to have available evidence of the pleader saying, “I want to fabricate jurisdiction”. One imputes to the litigant that proscribed purpose as being his or her or its subjective intention, but by reference to the matters available for the assessment which by their nature are thought to be relevant in ascribing that intention.

Your Honour, I should clarify we do say it an objective matter for those reasons and therefore appropriate. The respondent seeks to ascribe to it the character of a subjective inquiry and say therefore it is inapposite. We say that is not at all what is in play.

Finally, and in conclusion on this area of the appeal, picking up your Honour’s reference to the potentially limited scope of difference between that for which we on balance contend, and the Commonwealth, we entirely accept that proposition, your Honour. There is little, and frequently will be no difference in practice, and much the same analysis at play in a way that can start to seem a matter of semantics. But we do say that the Commonwealth’s formulation and the others, by their very nature, their terminology and their unfolding, do direct themselves to the merits per se, which is, we submit, undesirable and not entirely appropriate. .....we emphasise, for the disposition of our client’s appeal, none of this will alter the result.

Your Honours, can I turn then to the issue raised by the Australian Human Rights Commission as to whether, had the Tribunal proceeded to entertain the proceeding, it would have been exercising judicial power, to which the respondent has yoked himself recently. The conclusion of that proposition of the Commission being that if the Tribunal would not have been exercising judicial power in entertaining the matter, had it done so, ground 1 in truth does not arise.

Now, your Honours, we do accept that if the proper conclusion is that the Tribunal would not have been exercising judicial power in entertaining the proceeding had it done so, we do accept that ground 1 would not arise, because ground 1, of course, is an issue stemming from Burns v Corbett and the implied limitation on the conferral of Chapter III jurisdiction on non‑curial State tribunals exercising judicial power.

Below at the Full Court and tribunal level, it was not in contest that the Tribunal would have been exercising judicial power, and contrary to opening observations in our learned friend Mr Lenehan’s written submissions, that was not just assumed but was remarked upon and the subject of expression of opinion, albeit not detailed analysis by both the Tribunal itself and in the Full Court. I took your Honours briefly to passages in the Tribunal’s reasoning that included remarks to that effect.

So, whilst we accept that were the proposition of Mr Lenehan’s client valid, it would produce the outcome suggested, we say that the proposition is itself to be rejected and rejected with dispatch. It is clear, your Honours, that the Tribunal would have been exercising judicial power had it entertained the matter and, with respect, the very limited basis which aspires to be in play in our learned friend’s written submissions to the contrary, seeking to justify a contrary conclusion is unsound. We will seek, your Honours, to deal with this recently raised issue as concisely as possible, but it is, of course, of fundamental significance, in light of the consequences were the proposition accepted.

At the outset, your Honours, we submit, that Justice.....analysis of the self‑same issue in relation to the self‑same Tribunal – the Anti‑Discrimination Tribunal of Tasmania – in Commonwealth v Anti‑Discrimination Tribunal [2008] FCAFC 104; (2008) 169 FCR 85, particularly if I give your Honours these references for the transcript, at paragraphs 205 to 207, and 249 to 255, that analysis and her Honour’s conclusions were sound and correct and, of course, they are fundamentally contrary to the conclusion that the amicus urges upon the Court. Her Honour found that it was clear that this Tribunal, in entertaining inquiries of the nature of the present matter, exercises judicial power.

The decision is found – and I will not ask your Honours to go to it – but it is found in volume 13 of the joint book of authorities, tab 99. The paragraphs to which I have referred where her Honour treats this issue are pages 5088 to 5089, and 5102 to 5103. Your Honours will find them in the course of a lengthy judgment of her Honour herself, and of other members of the Full Court. But I note, we note, the other two members of the Full Court did not address themselves to the question.

We note too, your Honours, that as Mr Lenehan’s written submissions themselves accept at paragraph 79, Justice Kenny’s approach and decision was approved in the context of the Victorian Civil and Administrative Tribunal in Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30; (2020) 60 VR 361, which is at tab 108 of the book.

So, our first proposition is Justice Kenny has carefully and correctly decided to the contrary of the submission and this Court, with respect, we submit, ought reach the same conclusion. Secondly – and this is explicit, your Honours, in the amicus’ submissions at paragraphs 57 and 67, the way in which our learned friend Mr Lenehan analyses the legislation is to proceed as follows. First – starting at paragraph 57 – he analyses how the question of whether the Tribunal would be exercising judicial power might be analysed and concluded upon if a key section – section 90 – was not present. That is an essential provision for these purposes. It is the one which provides for the Tribunal’s orders to be enforced as orders of the Supreme Court.

Having first undertaken an analysis airbrushing section 90 from being present, the submissions then turn at paragraphs 67 and following to addressing themselves to whether, with section 90 present, judicial power was being exercised. We say, with respect, that is not a proper approach to construction.

But, your Honours, pivotally, on this question, we then proceed to these submissions. The Australian Human Rights Commission in fact accepts that when section 90 is taken into account, the Tribunal’s function is judicial. That is squarely accepted at paragraph 67 of the submissions. Just to pause there. So, the argument that the power is not judiciable is, to that juncture, accepted. We would say that is the end of the issue.

What then occurs is that the amicus submits that whilst with section 90 present as it is, on its face, the power would be judicial, what should occur is that section 90 ought be read down so as to be unavailable in federal matters with the supposed result that in federal matters the Tribunal would not be acting judicially.

On this reading, your Honours, if in a federal matter, at the end of a tribunal proceeding – the matter involving a federal claim – on our learned friend’s reading, if at the end of the proceeding a person had obtained an order from the Tribunal under section 89 and sought to enforce it under section 90 as an order of the court, that section would be unavailable to..... The enforcement provision, it is said, would be read down so as to be unavailable in federal matters, but otherwise available.

Your Honours, we say, first, in addition to be productive of immense practical difficulty – and, with respect, that difficulty appears on the face of paragraph 75 of the amicus’ submissions where it is sought to explicate how the approach would work in practice – but in addition to those practical difficulties, the suggested approach of reading down is without any proper basis.

As your Honours would immediately have to mind, such an approach depends upon the notion that section 90 – the enforcement provision – is not an integral part of the legislative scheme and can be circumscribed in the suggested fashion. We submit, your Honours, without taking the Court through the entirety of the legislative regime pertaining to the Tribunal, that the true position is starkly to the contrary.

Her Honour Justice Kenny in the decision to which I referred – Commonwealth v Anti‑Discrimination Tribunal – addressed herself to this very submission and question and at paragraphs 249 to 255 rejected it – those paragraphs being found, as I said, at tab 99, pages 5102 to 5103. Your Honour, section 90, in our submission is an integral part of the scheme. It should be taken to be of general application as its terms convey it to be and insusceptible of reading down to achieve the goal of precluding the conclusion that in federal matters alone the Tribunal is not acting judicially.

In our submission, your Honours, there is no basis to emasculate the provision as regards federal matters and federal matters alone. To do so in effect to remove the ability to enforce the Tribunal’s orders as if orders of the court in federal matters alone but not other matters would centrally alter and impair the legislative scheme. It would mean that the effect and the effectiveness of a determination of a tribunal in a federal matter would be fundamentally different from in a State matter. In our respectful submission, there is no basis to consider that that was the legislature’s intent.

Second, your Honours, and more fundamentally, rather than doing as the amicus submits and rewriting the legislative scheme in order to avoid the anterior conclusion that that scheme confers judicial power on the Tribunal, the correct approach having ascertained that on the scheme of the legislation the power is judicial is to give effect to Burns v Corbett by reading down the State’s conferral of jurisdiction on this Tribunal that exercises judicial power such that it is not in power to adjudicate federal matters.

In that regard, we refer to Burns v Corbett itself, volume 5, tab 32 of the authorities at paragraph 64 in the judgment of your Honour the Chief Justice and Justices Keane and Bell and paragraphs 119 to 120 in the judgment of Justice Gageler because of course, your Honours, what is contrary to the Constitution, as Burns v Corbett explicates, is for a State to purport to confer federal jurisdiction on a body that under its constituent legislation exercises judicial power. Where that purported conferral occurs the conferring legislation is to be read down to preclude the transgression of the implied Chapter III limitation.

What is not contrary to the Constitution is for a State to create the instant body – here the Tribunal – and clothe it with judicial power. At the heart of it our learned friend Mr Lenehan’s approach seeks to reverse the anterior circumstance of the legislation having conferred judicial power on the body rather than to preventing the improper conferral of jurisdiction in federal matters upon that body. We say that is erroneous.

It is said for the amicus that in a way in which we would have the legislation construed the whole scheme will fall. That is not so at all. That submission is made twice, at paragraphs 72 and 79. Upon the approach which we urge, the legislation pertaining to the Tribunal would be given effect according to its terms, including particularly the central division for enforcement on its face would apply in all matters before the Tribunal. But consistent with Burns v Corbett, the Tribunal would have no jurisdiction in matters that involve federal claims and defences.

Finally, your Honours, and illustratively of these matters, we identify this circumstance. On the approach of the amicus, the Tribunal would be acting judicially in State matters and non‑judicially in federal matters. Indeed, that is the very endpoint of the submission as to reading down, to produce that result.

Indeed, your Honours, as the present case could have involved, if it were the case that federal jurisdiction only arose in the course of a hearing as were a federal defence came to be raised, on the contentions of the amicus section 90, which would have been available at the putative conclusion of the proceeding at all times prior to the federal defence being pleaded would cease to be available and the Tribunal would from that point onwards, from the point of the federal defence being pleaded, would move from acting judicially to acting non‑judicially because upon the pleading of the federal defence a reading down of section 90 would be invoked, and we say one only has to identify those circumstances to conclude upon their lack of soundness.

Finally, on this question, your Honour – on the judicial power question – even leaving aside all of those submissions as to why the fundamental proposition of the amicus that section 90 ought be read down in federal matters ought not be accepted an essential premise of that argument – even hypothetically if it were to be accepted – is that, upon reading section 90 down in the manner proposed, properly understood, the Tribunal would be seen then not to be acting judicially.

We take issue with that proposition, your Honours. We say that it is unsound. In other words, we submit that even without section 90 – if one can analyse the matter in this way – a proper analysis of the scheme of the legislation pertaining to the Tribunal would in any event produce the conclusion that it acts judicially so that even to read section 90 down in the impermissible fashion suggested ought not gainsay the conclusion that the Tribunal acts in a way that is judicial and exercises judicial power.

Justice Kenny also considered that issue and her Honour specifically concluded at paragraph 253 of her reasons, joint book page 5103, that even leaving aside section 90 – taking the legislative scheme as a whole, a number of other features in it conveyed and produced the conclusion that the Tribunal acts judicially, regardless of section 90. We respectfully urge the adoption of that conclusion as well.

So, your Honours, we say those things in support of the proposition that, had it exercised jurisdiction in this matter, the Tribunal would have been acting judicially and, accordingly, ground 1 does arise and.....to that problem is germane or the Burns v Corbett doctrine is engaged.

GAGELER J: Mr Batt, can I just ask a question about the orders sought in this case? They include declarations and I take it that you accept that a declaration is an order that can be made under section 89(1)(h) ‑ ‑ ‑

MR BATT: Yes, your Honour – I am sorry.

GAGELER J: Does section 90 have anything to say about a declaration? One does not normally think about enforcing a declaration. Whatever status it has would seem to derive from section 89 and not be affected, at least directly, by anything that happens under section 90.

MR BATT: Indeed, your Honour. May I answer that in stages. First, we do accept that the declaration sought in this matter – or within the scope of the relief the Tribunal was empowered to order under section 89 – as would other declarations. Secondly, we entirely accept – if we may put it in those terms – what your Honour suggests, that section 90 really in the nature of the relief perhaps has no work to do in respect of declaratory relief.

But, your Honours, as a third limb to my answer, we would positively rely upon those considerations in aid of my last submission which was that even absent section 90 the Tribunal should be seen to be acting judicially. As Justice Kenny said, even without section 90, there are a number of considerations in the scheme of the legislation which produce in contradistinction perhaps to the analysis that was apt in Brandy, which produced the conclusion that the Tribunal acts judicially.

One of those considerations, if your Honours please, is that the Tribunal could, under section 89, pronounce declaratory relief. In our submission, such declaratory relief would have been – so far as any declaratory relief may be said to be – binding and conclusive of the properly analysed position in law, no less than in any other body – that is to say, your Honour, that, even without section 90 which deals with the enforcement of orders with which there has been non-compliance, orders in our submission under section 89 in the scheme of this legislation are binding and conclusive.

In contrast, in Brandy – and I have not taken your Honours to it for reasons of time – but there was there in the relevant discrimination legislation a provision, section 25Z(2), from memory which said but for the enforcement provisions, the determinations that the Commission could make were not binding and conclusive.

There is no such provision in this legislation and, indeed, your Honours, that lacuna in the current legislative scheme was a matter to which Justice Kenny adverted in the paragraphs to which I referred a moment ago in support of her conclusion that even without section 90, in the present matter it ought properly be concluded that the Tribunal would be acting judicially in performing the types of functions here in question.

I have perhaps said a little much in answer to your Honour’s question, but I did want to explicate why we say that the premise of our learned friend’s submissions, that if section 90 is read down that is the end of judicial power, we say is not for one moment to be accepted. The current case is different in that sense from Brandy. We do, with respect, if we may, your Honour Justice Gageler, agree entirely with each of the matters that you put to me.

GORDON J: Can I ask one matter in relation to that. Is it not the position that, unlike the position in Brandy, you have section 90(1)(c) here which recognises the binding nature of the orders made by the Tribunal?

MR BATT: I am sorry, your Honour, I just missed a part of that question. Would your Honour mind repeating it - I am sorry?

GORDON J: Is it not the position that unlike Brandy, we have section 90(1)(c) here which expressly recognises the binding nature of the orders made by the Tribunal?

MR BATT: Yes, your Honour, we agree, if we may say. The role of section 90(1)(c), and that which it implicitly recognises, is that the orders of themselves pronounced under section 89 are binding and conclusive, and it is only if there is non‑compliance with them that the enforcement step is needed and it is because that is the proper analysis of the scheme that section 90(1)(c) is worded to say, or to direct itself to a person verifying an affidavit that there has not been compliance.

Now, apropos of that, your Honour, if I could have one further observation, it is perhaps, as we would apprehend it, fair to say that in the written submissions of the amicus, quite something is sought to be made of the fact that in this case, unlike in Brandy, the enforcement section, here section 90, is what our learned friend terms discretionary. Your Honours see it in section 90(1), which is at page 275 in tab 6 of the first volume of the authorities, that section 90(1) begins:

A person . . . may enforce an order made under section 89(1) . . . by -

and then the steps are set out which include giving an affidavit to which we have referred. Now, in our submission, nothing turns on what our learned friend calls the discretionary nature of the provision, first because the section empowers a person as a right to do those things and thereby by force of the provision, produce the outcome that the order is enforceable as if an order of a Chapter III court.

But further, the very circumstance that the section is worded in that permissive or empowering fashion – we would respectfully not adopt the notion “discretionary” – it is apt to turn attention to other inquiries – but the very reason we would suggest why the section is worded in that fashion, as compared to Brandy, where the order was automatically to be entered and enforced, is for the reason that unlike in Brandy, where the legislation had said orders are not of any binding effect subject to them being enforced, here, a proper construction of the legislation which lacks any such provision makes clear that under section 89, all orders under that section are by their nature binding and conclusive, itself an important indication of judicial power being at play.

The enforcement provision is expressed in those terms because it is only upon non‑compliance with a binding order that the separate enforcement falls to be taken. So, we say everything about section 90 reinforces that although it confirms that the power is judicial it is not necessary for that conclusion to be properly reached.

Your Honours, conscious of the time, I turn then if may, to ground 2, the section 109 inconsistency ground. May we, in doing so, make certain observations at the outset seeking to elucidate the role of this ground. Your Honours would have to mind that ground 2 is the Full Court erred in deciding, as it were on the merits, that the section 109 defence was not valid and ought not succeed.

Ground 2 is included in the appeal, your Honours, on account of the possibility – or the contingency, I should say – that your Honours are against our submissions on ground 1in a sense in which your Honours hold to have been correct the reasoning and approach of the Full Court. For the reasons we have given and with the greatest respect to the Full Court, we say your Honours would never do that. But, if your Honours were to do that, and ex hypothesi, therefore, be holding that the proper inquiry was to assess the defence on its merits, then we have, of course, to ground 2 to say if that is the proper approach, in any event the merits or otherwise – and the Full Court concluded – the defence was a good one and, therefore, even on an approach such as the Full Court adopted, the Tribunal ought, as it did, to have dismissed the matter for want of jurisdiction.

Of course, your Honours, the substantive merits of a section 109 defence would not arise for consideration in that same way on this appeal if, under ground 1, your Honours held that the Full Court’s approach to how a jurisdiction ought to have been ascertained in the Tribunal was in error and that some narrower approach, correctly, ought have been adopted.

In that circumstance, any relevant inquiry as to the section 109 defence itself and the nature and ambit of any such inquiry would depend upon the jurisdictional test which your Honours had held in respect of ground 1 ought to have been adopted. So, for example, your Honours, to, perhaps, make that a little clearer, if under ground 1 your Honours said that the Full Court had erred in its merits‑based approach and that the most that should properly be done by a tribunal in the position of the instant Tribunal ought to have been directed – would have been to have directed itself to colourability or to colourability under the Commonwealth’s proffered test, if that were your Honours’ holding on ground 1, the only inquiry as to the substance of a section 109 defence that might arise on this appeal would be to determine whether that test had been met or not met.

As your Honours know – and I am perhaps repeating myself – we say, fundamentally for our client, that on any of the tests propounded by the interveners or our client, or the respondent, the test is readily met. So, that inquiry would be an easy one.

GAGELER J: Mr Batt, may I ask a question about the way you formulate your argument for directing consistency? As you put it quite succinctly in paragraph 12 of your outline, it appears as a case of operational inconsistency – that is, you first have to find a factual basis of your client complying with the standards – and if there is compliance with the standards, you say that there is a detraction from the operation of the federal Act by the State law. Do you have a factual finding in your favour that there has been compliance with the standards? If not, how can you sustain the argument?

MR BATT: Your Honour.....this if I may, we do not have such a factual finding. We have no more than the pleadings of compliance to which I took the Court. But, your Honours, the way in which we put it – and it is a way which does not, in our respectful submission, depend upon the existence of such a factual finding – is that to analyse the two schemes at work – the State scheme comprised of the anti‑discrimination legislation and the federal scheme comprised of the federal Act and the disability standards, the task is to analyse how – in a general sense, not in a sense of the facts of this particular matter – both schemes operate.

Our submission is, as your Honour has picked‑up, that, in their nature, the nature of the schemes is such that the State Act purports to impair or detract from the operation of the federal scheme – and shortly stated, this is the nub of our argument, your Honour – that is because the State Act has the capacity, under section 16, to render unlawful, conduct which, in its operation, the federal scheme addresses itself to and establishes to have been lawful because under the federal scheme there was a standard with which there had been compliance and the general proscription, as such, of Commonwealth law did not apply.

Now, I should seek to put that more concisely, your Honour. We say we do not need – we do not have but we do not need a finding here in fact of compliance because one can ascertain on the face of the legislation in issue, the two sets of legislation, that in their operation they have the real conflict of which the Court spoke in the Jemena Case of operation. That is to say, the State Act purports to and does have the capacity to add additional obligations beyond the scope of those which the Commonwealth legislation specifically provides to be sufficient to be lawful.

There can be under the general State proscription on disability discrimination acts of discrimination impermissible under that law which in its operation Commonwealth schemes specifically provides to be lawful and not contrary to that Act’s general proscription. So, inconsistency of operation is seen in the scheme of the respective Acts. We can take your Honour, and we will, to the standard which here precisely addresses itself to the factual circumstances of access that are here or were here in issue in the Tribunal proceeding.

But, in our respectful submission, one does not need to have a finding of fact, just as in Dickson, as we would have to mind there was no such finding. Rather, the Court in Dickson looked at the Commonwealth and Victorian schemes as to conspiracy and identified that the State provisions in their nature undermined the effect of the Commonwealth legislation.

So, your Honours, if I might just conclude on the opening remarks I was seeking to make. The short point we were seeking to get to was that if ground 1 succeeds it may well be that that obviates the need for a full consideration of the soundness or otherwise of the section 109 defence and of determination of ground 2 in its terms. Of course, it would remain a matter, if we be permitted to so observe, for this Court whether to decide nevertheless to determine the question, and it may be perhaps that the presence of the Full Court’s extensive reasons concluding that the defence was unsound would be a relevant consideration in the Court’s assessment..... But ground 2 in effect need not be determined. It may be that it need not be if we succeed on ground 1. That is the short point.

But turning to the argument then, your Honours appreciate that we press only a contention of direct inconsistency. It may be, as we sought to report in our written submissions, that there is also a good argument of indirect inconsistency, and whilst the Solicitor‑General for the Commonwealth presses, persuasively in our submission, such an argument, but our clients confine themselves to direct inconsistency and as such, and as your Honour Justice Gageler has elucidated, our clients’ focus on the effect which the State Act has on the operation of the relevant Commonwealth law, whereas conversely without suggesting that the two streams of argument are disparate entirely, that conversely in its argument of indirect inconsistency the Commonwealth necessarily focuses on legislative intent.

Ultimately we say, your Honours, that when understands what the State Act purports to reserve to itself and what the Commonwealth Act by its terms and operation achieves there is a real conflict in the sense, as I have said, in the Jemena Asset Management case found at tab 47, paragraph 60.

May we take your Honours as briefly as we can sensibly achieve to the relevant legislative provisions and, of course, if your Honours were of the view that the treatment of them is unnecessary then we will act in accordance with any such indications. But subject to that may I take your Honours to the Disability Discrimination Act 1992 (Cth) which is found at volume 1 of the book of authorities at tab 4, and really partly before we reach the pivotal provisions just identify so that your Honours see the way in which the scheme proceeds these aspects of it.

If your Honours first can pick up section 4, which is at page 111 of the volume, your Honours will see just for your information at about point 2 on the page a definition of “disability” which relevantly includes in (b), relevantly for the purposes of the current matter:

total or partial loss of a part of the body –

and at the bottom of that page the penultimate definition, “disability standards” which merely takes one to section 31 to which I will come in a moment.

If we then move forward through the Act, past the rest of the definitions, to page 115 of the book where your Honours will see at sections 5 and 6 definitions of “direct” and “indirect disability discrimination”, disability discrimination being that which this Act addresses itself to. Then, your Honours, we move forward to section 13 at page 123 of the bundle. We will need to come back in a little more detail to these provisions but we, just to ensure they are before your Honours, identify section 13 which relevantly in section 2 provides what is meant by a “law of a State or Territory”, the shorthand phrase used in the rest of the section. Then more substantively in subsection (3), your Honours will observe that it is provided:

This Act is not intended to exclude or limit the operation of a law of a State or Territory –

which picks up the pre-set in subsection:

that is capable of operating concurrently with this Act.

I will seek to restrain myself from embarking into the argument now but we will come back to that provision, if your Honours please, albeit relatively briefly. What one then sees is in subsection (3A) immediately below the significant provision that:

Subsection (3) –

which I just read:

does not apply in relation to Division 2A of Part 2 –

which as we will come to is a disability standards division. Now, I hasten to point out, section 13 itself is in Part 1, we will move into Part 2 in a minute.

So there is a giving of a certain amount of concurrency and then a taking away of it in terms of these sections as regards disability standards. Then, your Honours – and we will come back to this by way of submission but we ought identify section 13(4) on which the respondent and some interveners seek to place some reliance. It is a section dealing with what happens when there is concurrency. We will be submitting it does not speak to whether there is concurrency and how broadly there is concurrency.

Rather, it is a section which takes as its premise an existence of concurrency and regulates how parties may proceed. The nub of it is to provide that where a State law “deals with a matter” including – and I will come back to this in submissions – “a matter dealt with” by a standard, and “a person has made a complaint” in respect of the federal scheme – I am paraphrasing and editorialising ‑ “the person is not entitled” ‑ I am sorry, your Honours, I should start again. Where a State law deals with a matter and a person has made a complaint, under that law, the State law, it is provided in substance that the person cannot then proceed under the federal regime to make a complaint. So there is an election rule. That is section 13.

If I can then move to Part 2, which your Honours will see starts at page 125, which in Division 1 contains the acts or broadly phrased proscriptions on discrimination, and relevantly for present purposes your Honours will pick up section 23 in Division 2 at page 131, Division 1 addressing itself to discrimination in work. Your Honours will see at page 131 Division 2, still within Part 2, “Discrimination in other areas” and saliently in section 23 a broad prohibition rendering unlawful access discrimination against persons on the ground that disability in relation to access to premises and the reach of the section is effectuated and apparent from subsections or subparagraphs (a) through to (f) at page 132.

So, that is the Act’s broadly stated general proscription on disability discrimination as regards access. As we will see, the State Act is cast in different terms but, for all intents and purposes, the same proscription. But that is not the end of the story, of course, your Honours, or we would not be dealing with the point. Still in Part 2, one then needs to go to Division 2A which starts at page 138 of the book and it is “Disability standards” – which your Honours saw referred to in the carve‑out of concurrency in section 13(3A).

Now, this short division entirely encapsulated at pages 138 and 139 does this. By section 31(1), it provides for the Minister – it empowers the Minister – does not require the Minister – but empowers the Minister to make, by legislative instrument:

standards to be known as disability standards, in relation to any area in which it is unlawful under this Part –

that is Part 2:

for a person to discriminate . . . on the ground of a disability –

So, relevantly, for present purposes – including as regards discrimination concerning access to premises – the Minister may make standards in relation to that area. Subsection (2) then provides, without limiting that subsection, a standard may deal in (a) with certain matters. Under (b):

provide that the disability standard, in whole or in part, is or is not intended to affect the operation of a law of a State or Territory.

We observe two things immediately. Under that paragraph, a standard might, but does not need to, address itself to that matter – or so provide and, (b), if it does make a provision as to that matter, the provision may be that there is an intention that the Act affect the State operation or not affect it. Here, your Honours, as we will see, the relevant standard Delphically makes no provision. It is silent. Then, subsection (3) provides for consultation. Then, we come to the final three sections of the division. Under section 32:

It is unlawful for a person to contravene a disability standard.

So that, on the one hand, in effect, requires compliance with a standard. Section 33, we need not deal with. Then, section 34 – which is fundamentally important and sits with section 32, provides:

If a person acts in accordance with a disability standard this Part (other than this Division) does not apply to the person’s act.

To wit, by means of section 32 – if there is a standard and one is subject to it – if one commits unlawful conducts, if one contravenes it – conversely, under section 34 – and assuming a standard exists and has application – if a person acts in accordance with it, the operation of a Commonwealth Act is to disapply Part 2 – other than Division 2A – and, thereby, disapply the general proscriptions, including that seen in section 23 on disability discrimination in relation to access.

GORDON J: Mr Batt, just so I am clear, that means, does it not, that none of the conduct – so long as it meets, for argument’s sake, a minimum Commonwealth standard – would render any of the conduct unlawful under the Commonwealth Act but says nothing about the lawfulness under the State Act, or otherwise?

MR BATT: Yes, your Honour, we accept that. Perhaps there are two parts – if we are appropriately apprehending your Honour’s question. That is the effect – Commonwealth Act says that within the Commonwealth scheme there is no role – no operation of the Commonwealth’s general proscription, rather, within the ambit of application standards, one must meet their requirements and if one does, one’s Act is not subject to the Commonwealth Act’s general proscription.

Secondly, and allied to that and really, perhaps, I think the latter part of your Honour’s question, it is true that in its terms – in its phraseology – those provisions, in their phraseology, do not speak in express language to the State Act. One does not see, for example, any statement “and such act will be not in contravention of a State Act”. If we had that language, the analysis would be a lot easier than it is.

Our contention, your Honour, is that the Commonwealth regime turns its attention to conduct that complies with a standard, as here exists, and quite deliberately effectuates the outcome that as long as you comply with the standard you will not be committing discrimination, which is unlawful, upon proper application of a general prohibition of such discrimination.

What then happens is that the State Act purportedly sits alongside that and arrogates to itself the capacity, despite that Commonwealth outcome, to produce the conclusion that nevertheless that same Act has been unlawful even in the State regime on account of the self-same general prohibition that the Commonwealth Act roll back in respect of such conduct. The State regime thereby purports to affect the operation of the Commonwealth Act by adding to the ambit of that which may be unlawful within this territory in a way that the Commonwealth Act in its operation has specifically disavowed. Your Honours, that is the nub of our argument.

GAGELER J: Mr Batt, I really do not understand the argument. Is it essential to the argument that section 34 is engaged in the present case?

MR BATT: We submit not, your Honour. If that were essential then there would not be sufficient foundation for our argument. What one can, on the materials before the Court, in our submission, do, your Honour, is to ascertain that there does exist a standard which in its terms and reach has application for the matters the subject of the proceeding as constituted in the Tribunal. One just does not have a conclusion of fact as to whether there had been compliance with the standard. But our submission is directed to the level of operation of the State scheme generally as legislation and its impact on the Commonwealth scheme.

KIEFEL CJ: I see the time, Mr Batt. The Court will now adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Batt.

MR BATT: Thank you, your Honour. It remains for us to complete our argument on ground 2 and in doing so we do wish to return to the questions which Justice Gageler was asking of us before the adjournment to seek to answer those questions more effectively than we apprehend we may have to date. But your Honour Justice Gageler, if you would bear with us, there is a more convenient and suitable juncture in the argument at which to do so and we will return to the point at that juncture which we will reach shortly.

May we first, as we ought, take your Honours to the Disability (Access to Premises — Buildings) Standards which is found at tab 5 of volume 1 of joint book of authorities and just identify for your Honours as briefly as possible the essential provisions and schema of operation of that instrument. Your Honours, as I say, will find it at volume 1, tab 5.

We would pick it, if we might, using the numbering at the top at page 186 under Part 1, Preliminary, just to note for your Honours the presence of an objects clause at section 1.3. I will not read it. Quite something has been made of the terms of the objects provision in the written submissions. It may be fair to say, in our respectful submission, that this provision is of more significance for the indirect inconsistency argument and matters of intention and we do not seek to rely upon it in our submissions on the operation of the respective schemes.

We then take your Honours to Part 2 entitled “Scope of Standards” which starts at JBA page 188, and just refer your Honours to these features. First, section 2.1 sets out the buildings to which the standards apply and section 2.2, which your Honours find at page 189, sets out the persons to whom the standards apply. Then overleaf, coming at it from another level, at page 190 one sees section 2.3 which then specifies the actions to which the standards apply.

What one divines from the text of that provision is in short that the standards apply to an action taken by a person which concerns the provision of access to relevant buildings to the extent that the provision of access to those buildings is (a) covered by the code – the access code which is Schedule 1, and I will come to it; and also within the scope of the general prohibitions in.....of the Act.

Then at the very next page of the instrument, one sees Part 3 entitled “Requirements of Standards” and in particular in section 3.1(1) a provision that relevant persons must in short – or the effect of which, I should say; it does not read this way – but the effect of the provision your Honours see there is that relevant persons much ensure that relevant buildings comply with the access code.

Your Honours will see overleaf at page 192 of the book section 3.2 which provides that for building developers and certifiers – but just to seek to assist your Honours, it is not a provision that applies to building managers, but for the limited class of certifiers and developers, compliance with the access code will be achieved by compliance with the stipulated provisions without need to comply with the remainder. That is really just to explain the limited scope of section 3.2. The more pertinent provision is the antecedent one, 3.1, which in effect requires compliance with the access code in Schedule 1 of relevant persons and buildings.

So in short, your Honours, for relevant buildings and persons, where the general prohibitions of Part 2 of the Commonwealth Act would have applied and the access code covers a particular action concerning access to premises, that action will not be unlawful by operation of Part 2 of the federal Act if the minimum prescriptions in the access code are complied with.

Now, I will take your Honours to the access code, but may I just reiterate that as I foreshadowed before luncheon, the standard contains no statement either way, pursuant to section 31(2)(b) of the federal Act, as to whether it is or is not intended to affect the operation of relevant State or Territory laws. It is silent in that respect. I will come back to that if I might briefly when I make some brief concluding submissions having traversed the access code.

The access code, your Honours, is in Schedule 1 which starts in the joint book numbering at page 200. It is a quite lengthy schedule and I do not for a moment wish or propose to deal with it in great detail, but to seek to assist the Court I ought just identify these aspects. In short – and I trust I do it justice in short compass – in short, your Honours, the access code contains a mixture of performance requirements which have to be met, and what are called or referred to as “Deemed‑to‑satisfy provisions”, the effect of which is if one satisfies those provisions, the performance requirements will be taken to be met.

Just to try to make that good by an example, if your Honours move forward to page 209 in the book of authorities, your Honours will see Part D as to “Access and Egress”, which contains through that page and overleaf, some five numbered performance requirements with the designation DP followed by a number, and then, if one goes past that to page 211 one sees Part D3, which has, in section D3.0, the title “Deemed‑to‑satisfy provisions”, the verbiage that:

The Performance Requirements –

to which I have just referred:

are satisfied by complying with:

(a) Clauses D3.1 to D3.12 -

and for a certain class also what is referred to in paragraph (b). So that is the schema, your Honours. What we would wish, and this will then take us to come back to the questions of which we were asked by Justice Gageler before lunch - we do want to note to precipitate that submission, that the standard deals explicitly with the very circumstances that were at issue in the Tribunal proceeding and the present matter. What we allude to in making that statement is seen at page 215 of the joint book where one has deemed‑to‑satisfy provision 3.2 “Access to buildings”. Your Honours will see – and I will not go through it all, but by subsection (1) it is provided:

An accessway must be provided to a building required to be accessible:

(a) from the main points of a pedestrian entry at the allotment boundary; and

(b) from another accessible building connected by a pedestrian link; and

(c) from any required accessible carparking space on the allotment.

Now, of course there is a whole lot embraced in those defined terms which it would be unprofitable to rehearse, but the short point is, your Honours, that by this provision it was established within the Commonwealth scheme that if a subject individual provided access meeting those minimum requirements, which do not amount to a requirement to give access from every entry point or boundary, that person would have satisfied the access code and therefore the standard and, accordingly, having met its requirements, could not be proceeded against or found to have contravened the general proscription as to access in section 23.

That was the Commonwealth scheme’s operation, so far as concerns the matters in issue in this proceeding as it was constituted in the Tribunal. So, with that identified, we return, your Honour Justice Gageler, to the questions you raised of us, and make these submissions. First of all, we would respectfully repeat that of course these issues only arise because the Full Court saw fit to determine the section 109 defence on its merits and if insofar as ground 2 is reached, and that inquiry is ex hypothesi found to be necessary and appropriate for the jurisdictional questions resolution then our submission is, in so grappling with that question and determining it, the Full Court erred. That is the territory within which we make these submissions.

Then, we further say these things. It is apparent, in our respectful submission, that although under the Commonwealth regime, compliance, so far as concerns the matters pleaded in the instant matter with clause 3.2 would immunise relevant persons, including our clients, from a finding of unlawfulness under section 23 of the Commonwealth Act because upon such compliance that provision would have no application, it remained the case – subject to application of section 109 to disavow this result – it remained the case – ascertainably so – that the State Act, by its general proscription might still be said and clearly has a capacity to be found to have prohibited the conduct.

Indeed, your Honours, that was the very content of the Tribunal proceeding as constituted in this instance. Our client said in effect we have complied with these minimum prescriptive requirements under Commonwealth law – that is enough – and the complainant’s case was (a) no doubt to dispute that factual proposition but to say in effect that does not matter, you may have, but you are still engaging in unlawful discrimination under the State provision by not having provided more accessways at this development.

KIEFEL CJ: Mr Batt, the State Act does not prevent the Commonwealth provisions taking effect in their terms and so that Part 2 of the Commonwealth Act operates. The State Act simply requires more, does it not? It requires that there be no discrimination. The Commonwealth Act operates for the purpose of proceedings brought in the Human Rights Commission, but the State Act simply requires more – that is not direct inconsistency – your argument is really coming closer to an exclusivity argument, is it not?

MR BATT: Your Honour, we, if we may say respectfully, accept all that your Honour puts to us as to the nature of the argument, and the burden of our submission is that in those circumstances where the Commonwealth Act is operating with the State Act – it is said can still operate on its terms – we say the State Act is adding to that which is required in respect of this field of discourse, entrenching upon what in Dickson terms is an area of liberty. Put it another way, your Honour, if permitted to operate, the State law would impose upon the appellants – and I quote from Dickson, at paragraph 22:

obligations greater than those provided by the federal law.

Now, your Honour.....our argument, we say it is a case of real conflict. To put it another way, in our submission, perhaps rhetorically and colloquially, what would be the point of section 34 of the federal Act and of standards if one could then be caught under the State prohibition?

The Commonwealth legislation addresses itself to this field. It brings it about that certain things prescriptively stipulated are ipso facto such as to prevent unlawful discrimination under the Commonwealth Act, and yet the State Act purports to turn itself to the self‑same sphere and render that conduct unlawful.

In our submission, your Honour – and this is how we put it – that is direct inconsistency. Apropos of your Honour the Chief Justice’s concluding remarks in what you raised of me, we do accept certainly that there is not a complete separation of analysis between direct and indirect inconsistency notions – one looks at operation, one at intention – but there is a blurring, and there is an area of common analysis within the two.

We will not, your Honours, seek to be putting it as an implicit negative proposition of exclusivity in the sense of covering the field but rather that it self‑evidently alters in Dickson terms the operation of the Commonwealth scheme if the State Act can come back to this same conduct and render it unlawful as being disability discrimination generally so characterised.

KEANE J: Mr Batt, is not the effect of what you are saying that you are reading the Commonwealth Act as if it says that conduct that is not unlawful under the Commonwealth Act is intended to be otherwise lawful?

MR BATT: Your Honour, we would wish to put it as a detraction from the operation to that effect but picking up my remark a moment ago that notions of intention cannot be disentwined from this analysis, what your Honour says, or puts to me, with respect, has some force. Both the operational argument and the intention argument in a sense come to the same ultimate point of conclusion. I trust or I hope that that has in a sense at least answered your Honour’s question.

GORDON J: Consistent with that too, Mr Batt, is that not what 31(2)(b) is giving the Federal Parliament power to do, in effect to say, “Listen, to the extent to which we want to impact on and affect the operation of the State law, we are going to say so”, and here they do not. They do the opposite. They set up this minimum standard, disapply it where it is complied with, that is, the unlawfulness, but otherwise do not declare it lawful.

MR BATT: Your Honour, I certainly need to address section 31(2)(b), and I will do that now. In our submission, nothing can relevantly be taken from its presence and terms and the terms of the standard for these reasons, your Honours. As I took your Honours to, that provision provides that a standard may – it does not require that it must – make a statement that it is intended to or is not intended to affect the operation of State law.

One takes from that two things. In circumstances where, as here, there is an absence of any such statement, one takes from that that – I will rephrase myself, I am sorry, your Honours. One, in our submission, cannot take from that lacuna of any such statement an inference either way because the provision itself has said the statement may be made in one direction or the other. Justice Gordon, we quite accept that in light of section 31(2)(b) one cannot construe the Commonwealth Act of itself as conveying that every standard is to displace State law.

But what we do say is that here the relevant law is not just the Act, but also the standard – the Disability (Access to Premises — Buildings) Standard. One looks at that package together. It does contain no statement either way. We say that in those circumstances nothing arises from section 31(2)(b) for constructional purposes militating in either direction and one is left with an inquiry as to whether as a matter of operation, if one thinks of the effect that the Commonwealth Act seeks to achieve, is that altered by the operation of the State Act? In our respectful submission, it is, in a relevant sense.

GAGELER J: Mr Batt, you place a lot weight on Dickson. My understanding of the holding in that case is that it was said that the State law intruded into an area of liberty designedly left by the federal law. Now, being as precise as you can, what is the area of liberty that you say is designedly left by this statutory scheme?

MR BATT: Indeed, your Honour, the only liberty designedly left is such area of conduct as lies between, at the higher level, compliance with a general proscription on disability discrimination and achievement of minimum standards prescribed under the standard so that, if I could put it perhaps another way, under the standards where they apply, as they did here, one must achieve a certain specifically prescribed set of outcomes, if I can use that language. That is an obligation. But it is also an immunisation in that one does not have to go anywhere beyond that in order to be safe from an allegation or finding of contravention of the general prohibition on disability discrimination.

EDELMAN J: Mr Batt, do you draw anything in support of that argument from the level of detail and, in some circumstances, incredibly precise level of detail that is provided in the minimum standards?

MR BATT: We do seek to, your Honour. We say that the operation and effect of the Commonwealth law carefully adumbrated in these very detailed instruments is to stipulate exhaustively as one could or in as specific as one could imagine that which is sufficient to neutralise an allegation of disability discrimination.

Now, we accept that is so within the Commonwealth sphere but our point then is, that being the effect of the regime within the Commonwealth sphere, it must alter the operation of that law for a State Act to purport to apply a broadly stated general prohibition, the obverse of this detailed regime which ascertainably – and it is alleged in this very matter – stands in a given case to be held to require more than the Commonwealth regime. It was for that reason that I, a few moments ago, adverted to the dictum in Dickson of a regime imposing obligations greater than those provided by the federal law.

So, your Honours, to seek to conclude on the matters that Justice Gageler raised of us before lunch, we do say that no finding of fact of compliance with standards or, for that matter, breach of the State law is required for the present issue to be both open and able to be resolved. The Full Court entered upon it. We submit your Honours can and should enter upon it if ground 2 is reached but finding differently in the result.

If one wants to put it differently, we would submit that our clients clearly have standing or sufficient interest to raise the point in circumstances where the complaint and defence in the Tribunal make these very allegations of compliance on the one hand with the Commonwealth regime and, from the complainant’s end, the allegation that, well, that does not matter, the State Act goes further, requires more and you have contravened it.

Of course, were it the case that the question was only right for resolution upon a finding of fact of compliance of the Commonwealth regime or non‑compliance with the State provision, it would ex hypothesi be the case that the section 109 issue only arose to be and could be answered at the conclusion of the Tribunal proceedings.

In our submission, the authorities do not establish that that is the position when it comes to analysis of operational inconsistency in the Dickson sense because that is an inquiry directed to the operation of the schemes on the face of those schemes under the constituent legislative instruments.

Your Honours, that largely completes my argument on ground 2, save that I should respond in relation to one particular provision of the Commonwealth regime which is put against us. I will not, given the time, take your Honours to the State Act, but perhaps if I might just give your Honours these references. Sections 14, 15 and 16 of the Anti‑Discrimination Act 1998 (Tas) found at tab 6 of volume 1. Sections 14, 15 and 16(k) define “direct” and “indirect discrimination” and section 16 read with paragraph (k) of that section is the general prohibition. That is at book of authorities 254 to 255. Then section 22(1)(c) at page 256, read with the definition of “Services” in section 3 at page 248, is the effectuating provision.

But as your Honours know from the way I have been addressing the Court, in short that Act directs a general prohibition by those provisions on disability discrimination in relation to access to certain services and facilities including certain buildings, and it is for that reason we say that it impermissibly undermines the operation of the Commonwealth regime.

The one section that I said I should return to is section 13(4) to which I did take your Honours, but in light of the variety of provisions to which we have been since then I should perhaps just come back to its terms and remind the Court that it is the section found at page 123 of the book of authorities in the federal Act which, as I sought to characterise it, regulates how it is that a complainant may proceed in circumstances where the legislation has concurrent operation and, as I put in short terms, gives one, or imposes rather, a model of election.

The respondent – and I think I might say certain interveners – seek to rely upon this section as militating against the federal Act having the operation and attracting vis-à-vis to say that section 109 in a way that we say is the case. In our respectful submission, the provision does not assist the respondent and any such interveners in their contentions.

We submit, your Honours, that it is not a section or subsection that speaks to where there is or is not concurrency and when it may be thought that a State Act does or does not clash with a federal Act. Rather, it is a section whose function is to regulate the conduct available to complainants where there is concurrency. Its very premise of operation is that there is concurrency and as such it takes the respondent nowhere.

We so submit, your Honours, regardless of and conscious of the presence in section 13(4)(a), in parenthesis at point 6 on page 123 of the language:

(including a matter dealt with by a disability standard) –

We accept, your Honour, that the presence of those words conveys that the section is premised upon an assumption that areas of concurrency may exist, including so far as concerns matters dealt with by disability standards. Quite so, of course, because as your Honours know, pursuant to section 31(2)(b) of the Act, a given standard may explicitly state that it is intended to permit concurrency.

That being the case, it is readily explicable, in our submission, that this section 13(4), which regulates how a complainant may act and must act where there is concurrency would include in its verbiage a reference to matters dealt with by standards because in light of that provision in section 31(2)(b) there will in given cases be concurrent operation in respect of inter alia matters dealt with by standards. But, again, nothing in that, in our submission, speaks to when there will be concurrency and what it might be that is a clash of operation sufficient to attract the principles upon which we have sought to rely.

Your Honours, unless there are any other matters of which your Honours would wish to ask us, those are the submissions orally in‑chief for the appellants.

KIEFEL CJ: Thank you, Mr Batt. Yes, Mr Merkel.

MR MERKEL: Thank you, your Honour. We are allocated to go tomorrow, your Honour. I think the order would leave the Human Rights Commission to address your Honours now.

KIEFEL CJ: Yes, thank you. Yes, Mr Lenehan.

MR LENEHAN: Thank you, your Honour. Your Honours, the Commission wishes to address only on the first issue raised in our written submissions, and as your Honours have seen we contend, contrary to the view expressed by the Tribunal at paragraph 39, that the legislative scheme here is properly construed in light of section 6 of the Tasmanian Acts Interpretation Act as only conferring non‑judicial power in respect of a federal matter.

Now, our proposed application of section 6 is something that Mr Batt somewhat colourfully described as airbrushing. We say that that technique is orthodox and required in this case. Indeed, it is notable that his client also contends for – as does the Commonwealth – significant adjustments to the statutory scheme by the application of a similar technique.

Now, in developing that point can I first say something about the statutory scheme and in doing so respond to the matters that arose in argument from Justice Gageler and Justice Gordon before lunch. Can I first say that the function that the Tribunal was exercising at the time of its decision was that of inquiring into a complaint and your Honours know that such an inquiry could at that time have yielded various different results.

The Tribunal could have dismissed the complaint under section 99. It could refer the complaint to conciliation under section 94. In a different kind of case it could refer certain matters to industrial bodies under section 91 and of course if it made a finding that the complaint was substantiated it could also make one of the various orders identified in section 89(1).

So, can I then turn to, firstly, the question posed by Justice Gageler, and your Honour asked about the fact that Mr Merkel’s clients have sought a declaration that certain acts of discrimination had taken place in the points of claim. Now, those prayers talk about a declaration or finding, and we say that that properly appreciates that that kind of order is best understood using the text of the chapeau to section 89(1) as a finding that the complaint is substantiated. So that is, it is a condition that then enlivens the power to make various orders which we say are only enforceable under section 90.

But the making or declaration of such a finding is not, we say, necessarily the exercise of judicial power. Administrative decision‑makers make such findings regularly, and without an exercise of any such power. Now, consistent with that point, can I give your Honours the reference without taking your Honours to it, to Momcilovic. You do have it in the joint bundle at volume 8, tab 52, but it is sufficient for me to note something that is said by Justice French at paragraph 80.

His Honour there talks about the use of the term “declaration” in different contexts, including the notion of a declaration of some official finding or conclusion. That, as his Honour points out, does not involve an adjudication of disputes about existing legal rights and obligations. It is something that results in the creation of a new set of rights and obligations when made by a non‑judicial body and does not involve any exercise of judicial function.

Now, that in turn leads me to the response to Justice Gordon’s question about the operation of section 91C. That provision, it is true, reflects an apparent legislative understanding that the orders made by the Tribunal have a normative effect. That is in fact consistent with the point we make that the exercise of power under section 89 is properly understood as the Tribunal creating new.....referring back to what was said by Chief Justice French in Momcilovic, again, something commonplace in the exercise of administrative power.

Now, that in fact coheres with what was said in Re East, which again I am not going to take your Honours to, it is in the joint bundle at volume 10, tab 71. The Commonwealth Solicitor‑General is going to be taking you to that authority shortly. But it was made clear there by this Court that in this type of scheme it is the making of those orders that relevantly creates rights and duties.

Now, a person can choose to comply with those newly created laws. That is how we say it has a normative effect and that is what section 91C recognises.

EDELMAN J: Mr Lenehan, I do not quite understand this distinction between a declaration as one that creates new rights and a declaration as one that just acknowledges pre‑existing rights. I mean in one sense, every declaration, whether it be judicial or non‑judicial, creates new rights as a matter of normative force, does it not?

MR LENEHAN: Well, that is so, your Honour, and that is why declarations sometimes receive particular attention in the context of Chapter III.....

EDELMAN J: So, what is it then that you say is non‑judicial about the declarations or declarations of findings that are made by the Tribunal?

MR LENEHAN: Well, we say that all that is made, just as the AAT would make, is an administrative finding, which then leads to certain legal consequences prescribed by the Act. That, we say, is not the exercise of judicial power. The exercise of judicial power is only present, we say, when one has a binding and authoritative decision and for reasons that I am coming to, that is not the case here. Before I get to that ‑ ‑ ‑

GLEESON J: Mr Lenehan, I am sorry, maybe at a convenient time you could explain how that submission operates in relation to section 89(1)(f) which empowers the Tribunal to declare a contract void.

MR LENEHAN: Your Honour, we say that is a specific example of a provision which envisages the creation of rights. It is not, we say, the binding adjudication of existing rights. The challenge to the Tribunal’s jurisdiction in this matter was taken in the course of the inquiry and before – as your Honours know – one of the various resolutions provided for by the Act had been reached and, in particular, before any orders had been made under section 89(1). So, as things stand, it is not known whether, if remitted, the complaint will be substantiated and, if so, any orders will in fact be made under section 89.

It is also not known whether – even if orders are made under that provision – there will be an attempt to enforce them under section 90. So, we submit, at that point, that inquiry into the complaint – and even if one goes further making orders ultimately under section 89(1) – should that ultimately not happen – the Tribunal would not be, say, exercising judicial power.

Your Honours will have seen that we rely in particular on an analogy that we draw with Brandy – which your Honours have in the joint bundle in volume 5, tab 31. I do not need to take your Honours in detail through that decision, but can I make these points? That case, likewise, involved a scheme where the Commission inquired into complaints of discrimination and was then required to determine whether they were substantiated – which, in turn, enlivened the power to make orders. Those orders were then ‑ ‑ ‑

KIEFEL CJ: Mr Lenehan, may I interrupt you at this point? Your submissions are concerned with the Tribunal proceeding to hear and determine a complaint under the State Act.

MR LENEHAN: Yes.

KIEFEL CJ: This appeal is principally concerned with an anterior question as to whether or not federal jurisdiction arose and the consideration the Tribunal needed to give to that.

MR LENEHAN: That is so, your Honour.

KIEFEL CJ: Are you suggesting that the Tribunal could proceed if the matter was in federal jurisdiction – that the Tribunal could proceed to determine the matter, including the matter in federal jurisdiction?

MR LENEHAN: We say as long as the Tribunal was not exercising judicial power, your Honour, then it can proceed with its inquiry into the complaint.

KIEFEL CJ: But the question in this appeal is whether or not the Tribunal would be exercising federal jurisdiction. I am just not sure. I think you are talking – from my perspective, at least at this point, I am a little confused. You seem to be talking about the Tribunal proceeding to do something further down the track. I thought this focuses upon the consideration of the Tribunal to an anterior question about federal jurisdiction – not a later question about what power it is exercising if it proceeds to hear and determine the complaint itself.

MR LENEHAN: Your Honour, we say that what was said in Burns operates as a constraint on the legislative power of the States to confer State judicial power on an institution other than a court. It does not deny the capacity of State Parliaments to confer power other than judicial power – which is what I am saying is involved here – on a non‑court with respect to those subject matters. That is the point of our submission. I apologise if I have not been clear.

So, returning to Brandy, your Honours have seen from our written submissions we extract the passages at paragraphs 52 and 53 that, but for the provisions providing for the registration and enforcement of the Commission’s determinations, both sets of joint judgments said it would be plain that the Commission did not exercise judicial power. So, that is the holding of an inquiry; the making of a determination on discrimination; or the making of administrative orders were not, of themselves, an exercise of judicial power.

Now, we accept that that conclusion was no doubt aided by the express provision that Mr Batt referred to – that is section 25Z(2) of the Racial Discrimination Act which expressly stated that those determinations were not binding or conclusive. But that, we say, merely confirmed what is true of any exercise of administrative power under our constitutional arrangements, that is, that the validity and effect of determinations or orders made by such a body – that remains an open question until authoritatively determined by a court, either in judicial review proceedings, or in a collateral challenge – that is a point that we make in our written submissions at paragraph 78.

That we say is the significance then of section 90. This was the point that was made with some care, we say, by Justice Leeming in Burns, which your Honours are very familiar with and I do need to take you to. But his Honour there said, dealing with the equivalent New South Wales provisions, that is what means that a person can obtain:

a binding, authoritative and curially enforceable judgment independently of the consent of the persons against whom his complaints had been brought.

That was, in his Honour’s opinion, the key point in terms of judicial power.

We say likewise here – and this is where Mr Batt accuses us of airbrushing or inverting the inquiry – we say but for section 90 it would be clear that the Tribunal was not exercising judicial power. In making that point, we have identified a number of obvious propositions. First, it is an executive body. Its powers presumptively take its character from that attribute. It cannot enforce its own determinations, as in Brandy. As in Brandy it does exercise adjudicative functions, form opinions on matters of fact and law and make determinations – this is a point that Mr Batt emphasised – but that of course does not entail that its powers are judicial.

As I have said before, tribunals around Australia do exactly that. Executive power can involve the exercise of adjudicative functions and the making of determinations on matters of fact and law, see the AAT. That is the point, as we have noted in our written submissions, that was made by Chief Justice Gleeson in Luton v Lessels.

STEWARD J: Mr Lenehan, I am sorry to interrupt you. Just so that I can understand your argument a little bit better, are you submitting that the Tribunal here – and just focusing on a purely State claim – exercises administrative power when making the inquiry and then exercises judicial power for the purposes of enforcement?

MR LENEHAN: Your Honour, we say that the exercise of judicial power only arises at the point of enforcement, yes. I think that is what your Honour was asking.

STEWARD J: You say that is what happened in Brandy as well, that but for the fact that the provisions that were in question were ruled invalid this is a tribunal that exercises a blend of administrative and judicial power?

MR LENEHAN: That is how Brandy was in fact explained in Breckler. It was that provision which converted an exercise of administrative power into an exercise of judicial power in an impermissible way.

GLEESON J: Mr Lenehan, can I just understand that because as I read the Act, the Tribunal does not do anything when it comes to the point of enforcement of orders. Are you saying this is a bit like water turning into wine, that what was done that was previously the exercise of an administrative power becomes the exercise of a judicial power once someone seeks to invoke section 90?

MR LENEHAN: Your Honour, it is why one cannot read the Act as conferring that capacity or privilege on a person in the position of Mr Merkel’s client. So, we do say that it is no exercise of judicial power, all the way up to the making of orders under section 89, and if one then is able to, as we say – is required by section 6 of the Acts Interpretation Act to disapply section 90, then the Act has a valid operation in respect of that federal subject matter. That was the point I was ‑ ‑ ‑

GORDON J: Mr Lenehan, I am sorry to be slow about this, does that mean – so I am clear – are you saying that the making of the orders under 89 is in or outside the exercise of judicial power? I am not clear.

MR LENEHAN: Outside, your Honour, we say outside.

GORDON J: So, to answer Justice Gleeson’s question, your submission is that unless it is registered – or application is made for enforcement in the State court – it has no binding effect?

MR LENEHAN: Yes, it lacks – to use Justice Leeming’s words again – any binding, authoritative effect. That is so.

GORDON J: So if you compare the two schemes – you should not always compare them – you compare them with the Brandy scheme, not only do you not have the 25Z(2) provision which in Brandy said the orders were not binding, but we also do not have the requirement that was in 25ZAA in the Brandy scheme which required it to be registered for it to have effect.

MR LENEHAN: That is true. It is, as your Honour says, a discretionary privilege. That may well relate to the point that your Honour noted with respect to 91(c), that is, it was contemplated by the legislature that a respondent may well conform themselves to the orders made by the Tribunal and in that way comply with them.

EDELMAN J: So, does that mean, Mr Lenehan, that everything in 89(1)(d), (e), (f), payment of “compensation” by reference to past conduct, payment of “penalty units” by reference to past conduct, declarations of voidness of past contracts applying retrospectively, not just prospectively, that none of that is the exercise of judicial power, simply because without section 90 there is no enforcement mechanism?

MR LENEHAN: Yes. In a case where one has federal subject matter, that is how we say the Act should be construed, your Honour.

EDELMAN J: That submission is basically saying everything H.L.A. Hart has ever written about the difference between normative force of law and enforceability is wrong.

MR LENEHAN: Well, your Honour, what it does is that – it is a case where one has an administrative tribunal which has a recommendatory power, but the enforcement of those recommendations then depends upon another provision, section 90.

GORDON J: Mr Lenehan, for my own purposes, I find that really difficult to accept given that one is imposing a fine and whatever one thought, I cannot imagine the imposition of a fine has a recommendary effect.

MR LENEHAN: Your Honour, I have spoken too quickly. That provision may be in a different category, but, of course, many people – police officers not exercising judicial power do have the capacity to issue fines.

GORDON J: Here it is after an inquiry that a complaint has been substantiated in respect of past conduct.

MR LENEHAN: Your Honour, that is so, but then that was exactly the same as Brandy, and your Honour has heard how we would seek to apply Brandy to this case. So, if that proposition is correct and if the critical.....the engagement of the Burns limitation then in section 90, then that has important implications for what I have identified as the critical interpretation provision at the outset, that is section 6 of the Acts Interpretation Act, which your Honours know is a severance clause in essentially the same terms as section 15A of the Acts Interpretation Act (Cth).

Your Honours also know that the settled effect of such a clause is that it reverses the common law presumption that a statute is to operate as a whole, and the intention of the legislature is rather to be taken, at least prima facie, to be that any parts found constitutionally unobjectionable should be carried into effect independently of those that fail unless it is clear that the invalid provision forms part of an inseparable context.

That is so even if that involves placing - the authorities refer to an artificial construction on a statute found to be partially invalid in order to save so much of it as may have been validly enacted. Now, if we are right, the parts of the scheme that are constitutionally unobjectionable relevantly include, we say, all of the provisions in Part 6, Division 4, except section 90, and, for the reasons that I have given, it is only section 90, which, again to adopt what was said in Breckler explaining Brandy, converts a non‑binding administrative determination into a binding, authoritative and curially enforceable determination.

So that means that the prima facie intention of the legislature, subject to the question of any contrary intention, to which I am coming back shortly, is that all of those constitutionally unobjectionable parts of the statute are to be carried into effect.

The Court is well aware – including from a recent discussion of these ideas in Clubb – that that can be done in case where a law is intended to operate in an area where Parliament’s legislative power is subject to a clear limitation. Of course, in such a case, the law is read as subject to that limitation. That is the technique that your Honour Justice Edelman referred to as partial disapplication or your Honour Justice Gageler’s second category of severance.

We say that that technique has ready application to section 90. Your Honours will recall that section 91 is not self‑executing. That is the point that I made before. Nor, is it, per se, enforceable as an order of the Supreme Court. Nor is there any duty to file the order. Rather the order may be enforced by filing it. So that, seemingly, has in mind what I will call a statutory privilege which is effectively discretionary.

So, we say that discretionary capacity or privilege to file the order can be read as subject to the clear constitutional limitation recognised in Burns. So, if an order reflects the determination of a federal controversy, we say the order cannot be filed under section 91 and the discretion to file it can only be exercised in accordance with the Constitution.

In terms of Mr Batt’s point about practicability, we say there is no issue in terms of practicability or workability of a scheme. Where there is no federal matter the Tribunal can inquire into and determine a complaint and its orders attract section 90. Where there is a federal subject matter, the Tribunal can inquire into and determine a complaint and its orders do not attract section 90.

Now, it is true, to pick up Mr Batt’s point, that that situation – that is, the introduction of federal subject matter – may arise during an inquiry. But that is exactly the same for Mr Batt’s proposed construction of the Act with more dire consequences. The inquiry must cease.

Can I immediately acknowledge that what I have been saying – and our proposed construction is, as Mr Batt said, inconsistent with what was said by Justice Kenny in the Commonwealth v Anti‑Discrimination Tribunal Case. Your Honours do have that behind tab 19, in volume 13. Mr Batt referred your Honours before to paragraphs – sorry, that is at 5041 of the joint bundle. In paragraphs 250 and 251, your Honours would see a submission made by the Tasmanian Attorney‑General which is substantially similar to the one I make here. That is an order of the Tribunal – at least involving section 75(iii) subject matter – may not be filed under section 90.

Her Honour said at paragraph 253 that one reason for rejecting that submission was that it was not clear to her Honour that the application of that technique – be it severance, reading down or partial disapplication, would avoid the constitutional problem because there was no equivalent of section 25Z. But that is the point that I made before. That provision really only confirmed what is true of any administrative decision – that is, the validity of any orders made by such a body remains an open question until authoritatively determined by a court.

The further point which is put against by both Mr Batt and by the Commonwealth Solicitor‑General at paragraphs 254 and 255 is, in effect, that the resulting operation of the statute would be so different that it would produce a set of provisions that the Parliament did not intend.

Can I address that point by first noting that it is not uncommon for the application of section 15A – or other severance clauses to result in the statute operating on the remaining subject matter in a manner which varies in some fashion from that which the provision would have without partial disapplication. Indeed, that was, in fact, what happened in Brandy in a way that we say is not dissimilar to our proposed approach in the current case. The Court’s answers to the questions reserved were that the registration provisions - that no other provisions of Part 3 of the Racial Discrimination Act were invalid, leaving in place the non‑binding administrative scheme.

Now, no party or intervener suggests that Brandy was wrongly decided insofar as it adopts that technique of severing the registration provisions and only those provisions. That indicates that statements in the authorities on which we anticipate that our friends for the Commonwealth rely, to the effect that severance is impermissible where it alters the operation of the Act on the remaining subject matter, are not to be taken too absolutely.

Severance or partial disapplication will only pose a difficulty in such a case where the effect would be to distort the legal operation of what would remain of the statute. That is what your Honour Justice Gageler said in Clubb at paragraph 148 and that, we accept, may then cross the line between adjudication and legislation. It is that class of case – to pick up what your Honour Justice Edelman also said in Clubb – that your Honour had in mind in referring to the possibility of altering the scheme or policy of the Act in an impermissible way. Your Honour dealt with that at paragraphs 431 to 433.

Putting that aside, all that arises is what your Honour Justice Gageler described as the straightforward question of whether there exists a positive indication of legislative intention that the particular law is not to have a distributive operation.

Can I then note at that point that what was done by both Justice Kenny and what is proposed by our friends likewise involves the Act not operating fully and completely according to its terms. It is clear that Justice Kenny did in fact conclude that the Act should be read down or severed. That is clear from the form of order that she proposed in paragraph 256 where she talks about a declaration that the Tribunal had no jurisdiction over the Commonwealth or Centrelink.

Can I reflect on that. Each party on either side of this issue is arguing for the Act to have a different operation by reason of severance or disapplication. But in fact the severance or disapplication sought by the appellants and the Commonwealth results, we say, in even greater differences in the operation of the Act as compared to that prior to disapplication, the now proposed approach.

More problematically given the command in section 6 of the Acts Interpretation Act, if we are right about the central place of section 90 in relation to judicial power, it goes considerably further than is necessary to remain within constitutional limits.

So that is, on the appellants’ and the Commonwealth’s approach, where federal subject matter arises the Tribunal cannot even inquire into the complaint, whereas on our approach where federal subject matter arises the Tribunal can inquire. It just has less power at the end of that inquiry. It cannot make orders which then attract section 90.

Now, the point that we have then made in our written submissions is that there is no reason to think that the Tasmanian Parliament would have wished either section 90 in its operation outside federal matters or in the balance.....to fall if section 90 were denuded of operation ‑ ‑ ‑

KIEFEL CJ: Mr Lenehan, am I mistaken in my recollection that the Human Rights Commission was limited to 15 minutes in its argument?

MR LENEHAN: Your Honour, you are not, and I should conclude my – if your Honour would give me leave to take a couple of further minutes to conclude my submissions we would do so very shortly. My apologies.

KIEFEL CJ: Yes. That is subject, of course, to any further questions my colleagues wish to ask.

MR LENEHAN: Yes. So we would say that in fact the operation to which our friends contend differs in a significantly greater fashion as compared to previous application than the approach that we propose, and we do say for the reasons that we have given in our written submissions that your Honours would not identify any clear contrary intention to the application of section 6 in the way for which we contend.

Unless your Honours have any further questions, those are the submissions that the Commission seeks to make.

KIEFEL CJ: Yes, thank you. Solicitor‑General for the Commonwealth, I think that you are to speak next.

MR DONAGHUE: That is right, Chief Justice. Thank you. Your Honours, the Commonwealth’s oral submissions will address four issues. First, was the Tribunal exercising judicial power, the issue that Mr Lenehan has just addressed. Your Honours will understand that that was an issue raised by the Commission after both the appellant and the Commonwealth had filed their written submissions in this matter but it was then adopted by the respondents and by Queensland so it is an issue upon which we have not had an opportunity to say anything before now but it is a matter that we can address adequately reasonably briefly, and that is the matter with which I will commence.

Second, we will turn to the limits of the proposition that it is the raising of a federal argument that brings a matter within federal jurisdiction. This is the question of whether the limit is colourability only and some question of what exactly that test means on the one hand, or whether there is also an objective limit for untenable claims using a variety of possible descriptors that the parties and interveners have put forward.

Third, I will make one very brief point in response to a submission Western Australia have made about the Tribunal’s task when a federal claim is raised. Fourth, I will ask Ms Gordon to address the inconsistency argument that the Commonwealth has raised as to indirect inconsistency between the Disability Discrimination Act and in particular the standards made under it, and the Anti‑Discrimination Act (Tas).

Can I start then with the judicial power point and ask your Honours to go immediately to Justice Kenny’s judgment in the Full Court of the Federal Court in the Commonwealth v Anti‑Discrimination Tribunal Case [2008] FCAFC 104; (2008) 169 FCR 85 which your Honours will find in volume 13, tab 99. When your Honours have that, can you turn to paragraph 201 where her Honour summarises the argument to which her reasons then respond.

Your Honours will see in paragraph 201 a summary of the Commonwealth’s argument and if your Honours go down to numbered point 5 within that paragraph you will see that the Commonwealth in that case anticipated the limit that this Court held existed in Burns v Corbett. So it was a Burns v Corbett argument before Burns v Corbett existed, but that was the legal framework within which her Honour was evaluating the arguments about judicial power.

Having then summarised the arguments of the other parties, including the Attorney‑General for Tasmania – and I will not ask your Honours to read it but if you just note in paragraph 203, points 6 through to 10, you see an argument very similar to the argument that Mr Lenehan is developing in this Court which her Honour then rejects in some paragraphs we will come to later.

Then at 204, having considered the issue carefully, her Honour says, “this case admits of a relatively straightforward answer”. Then under the heading “The Tribunal exercises judicial power” her Honour starts by saying:

I accept as clear that, under the Anti-Discrimination Act, the Tribunal exercises judicial power.

It is clear, as her Honour then explains over the next few paragraphs because of a culmination of the nature of the function that the Tribunal performs and that the Tribunal here is the Anti‑Discrimination Tribunal of Tasmania - that is, the very same body under the same legislation that your Honours are now considering. So first, the nature of the functions and second the procedure for enforcement. In 205 from the fourth line her Honour then describes two categories of function and from about eight lines down:

Its second function, which is relevant here, is to conduct an inquiry into a complaint referred to it by the Anti‑Discrimination Commissioner — ie, to determine whether a provision of the Anti‑Discrimination Act (here, s 16) has been contravened ‑

and a list of sections again relevant here:

The authorities recognise that this is in the nature of an exercise of judicial power –

and her Honour cites quite a number of cases. So partly the analysis turns on the nature of that function, determining whether there has been a breach of the law. Then the Tribunal has a broad power to make various court‑like orders, and there is a summary of many of the orders under section 89 that your Honours have already raised with my learned friends. Then in the next paragraph, having dealt with the functions and the orders, her Honour turns to the enforcement issue and the potential to file a certificate under section 90. Her Honour notes some of the differences including the circumstance in which the order of the Tribunal once registered becomes enforceable as an order of the Supreme Court, and then discusses Brandy.

You will see conveniently in the quote from Brandy that appears at the end of paragraph 206 that - there is a quote from the joint judgment of Justices Deane, Dawson, Gaudron and McHugh in Brandy to the effect that if it were not for the provisions providing for registration and enforcement it would be plain that the Commission does not exercise judicial power. That is because of section 27Z(2).

Now, I will not ask your Honours to go back to Brandy, but if you read 269 of Brandy, the first half of page 269 of Brandy is an analysis just like the analysis Justice Kenny conducts in paragraph 205. Then, having conducted that analysis, their Honours say, but 25Z(2) would change the position because it says that orders are not binding and conclusive as between the parties. So it was because 25Z(2) changed the position that the court then went on to say – but then it has changed back again by the registration provisions in section 90.

So, it is a very material and important difference between this legislative regime and that in Brandy that there is no need to navigate the problem created by 25Z(2). There is just the nature of the functions and then the fact that if registered they take effect as orders of the Court. Her Honour then says in paragraph 207 it is the combination – while there are differences, there are sufficient similarities:

to justify the conclusion that, in combination with the factors already mentioned, an exercise of judicial power is involved.

There is a discussion particularly then of section 90(1)(c) that your Honour Justice Gordon drew attention to. I will come back to the reading‑down analysis, but just pausing there, that analysis commencing with the proposition that it was clear that judicial power was exercised was endorsed by a unanimous Victorian Court of Appeal constituted by Justices Tate, Niall and Emerton in Meringnage, an international enterprise case that we have cited in paragraph 2 of our oral outline, and I have given your Honours the pinpoint references there, but their Honours completely endorse the analysis of Justice Kenny that I have just taken your Honours through.

I also refer to a judgment of Justice Perry in the Qantas v Lustig Case to the same effect and conclude that it is clear that VCAT under a relevantly non‑distinguishable legislative regime exercised judicial power. Likewise, in the New South Wales Court of Appeal in the Burns v Corbett Case before it went on appeal to this Court, the parties had agreed that NCAT exercised judicial power, but Justice Leeming, with whom Chief Justice Bathurst and President Beazley agreed, expressly said that that conclusion was correct for effectively the same reasons.

I will not take your Honours to it, but in paragraph 30 he said NCAT was determining whether there had been a contravention of the Act and, if so, whether a remedy should issue. If NCAT made an order:

Mr Burns would be able to obtain a binding, authoritative and curially enforceable judgment independently of the consent of the person against whom his complaint had been brought.

That is exactly the position of the Tribunal in this case, unless section 90 is to some extent invalid or read down, as Mr Lenehan proposed. So in each of those cases, Justice Kenny’s judgment and then the two intermediate Court of Appeal cases, not only has it been accepted that a function of the kind in issue here is judicial, it has been regarded as obvious or clear that it was an exercise of judicial power.

In our submission, nothing said by Mr Lenehan this morning casts any doubt on that analysis. His argument ultimately turns entirely upon the proposition that your Honours should find that it is possible to read down section 90 and therefore obligatory to read down section 90 and that if read down in that way so that section 90 allows the Tribunal’s orders to take effect as judicial power in State cases but completely differently in federal cases, allows a regime to operate that results in effect in an opinion of an unenforceable kind then – so unless your Honours are prepared to read down section 90 of the Act in that way, his argument fails as contrary to a settled line of authority.

Now, the reading down that is proffered, as Mr Lenehan accepted towards the end of his submissions, reflects an argument that Mr Merralls advanced on behalf of the Tasmanian Attorney‑General in the Commonwealth v Anti‑Discrimination Tribunal Case. If I could ask your Honours to go back to that case – it is volume 13, tab 99, this time to go to paragraph 251, or actually 249 on the same page, at the top of page 146.

Your Honours will see that the Commonwealth’s contention was that the declaration that should be made was that the Tribunal had no jurisdiction in a matter in which the Commonwealth was a party because the source of - the federal jurisdiction issue in that case was a party‑based issue rather than an issue concerning the nature of the substantive law that was in play.

Mr Merralls on behalf of Attorney‑General of Tasmania resisted that argument by saying, no, do not declare that there was no jurisdiction, read down the registration provision instead. In the second half of paragraph 251, you see that argument recorded. In effect, it said just read down the provision that makes the order binding so that it stays non‑binding or it cannot be filed in the Supreme Court under section 90, just as Mr Lenehan has put to your Honours. Her Honour says at the end of 251:

I would not accede to this submission.

She explains why not in the next four paragraphs. So, we start with the relevant severance or reading‑down provision, section 3 of the Acts Interpretation Act (Tas), which is in the standard form. Her Honour then notes the authorities in this Court, particularly picking up Justice Brennan in Ex parte Wagner identifying two limits:

The first was that “the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of the law”: see Pidoto –

that one not too relevant here, but second, very importantly to her Honour’s conclusion:

the operation of the law upon the subjects within power was not changed by placing a limited construction upon the law –

citing various authorities, including at the bottom of the page, Victoria v Commonwealth, the Industrial Relations Act Case, which is probably the most commonly cited authority in this area.

So, having identified the legal limits of the reading‑down process, her Honour then applies that at 253 and 254. There is a discussion that I will not trouble your Honours with at 253 about Brandy and the role of 25Z(2) in Brandy and her Honour doubts whether reading down section 90 would actually solve the problem. But your Honours do not need to decide that because 254 is then sufficient to resolve the case:

if the Court were to declare s 90 . . . ineffective (or invalid) to the extent that permitted a person . . . to enforce an order . . . against the Commonwealth, then the effect of the Tribunal’s orders under s 89 would be fundamentally different depending on whether they were made against the Commonwealth or some other person. Reading down or severing s 90 so as to have no application at all would alter the legislative scheme even further.

So, her Honour is making two points there. One is that if you just read down section 90 a bit so that it does not apply in those cases where federal jurisdiction is engaged, you produce a situation where the section has a – where the Act rather, had a radically different operation on the people who remain bound by it contrary to the second of the limits that her Honour identified in 252 because the people who remain bound by the Anti‑Discrimination Act, instead of having a right to an order that takes effect and is enforceable as an order of the Supreme Court, instead have a right to a non‑binding dispute resolution regime where they cannot obtain enforceable orders.

It is a dramatically different effect upon them, whereas if you adopt the alternative reading down that the Commonwealth urged there and urges here, for some people the reading down of the jurisdiction has the effect that they are just not within the regime that the Anti‑Discrimination Act (Tas) creates. They are wholly outside it. But the people who are still inside the regime are bound by the Act in exactly the way as they were before and so it does not infringe the limit that her Honour identified and that then is the conclusion that her Honour favours at paragraph 255.

Now, your Honours, from there, in our submission it is critical to appreciate that the argument that the Commission has advanced in this case would equally have been good in every one of the authorities in this area – Meringnage, Burns v Corbett, and Burns v Corbett in this Court ‑ and had that reading down been adopted in Burns v Corbett it would have produced a radically different outcome to the outcome that your Honours’ orders actually produced because your Honours will recall that you held that the jurisdictional provisions of the Anti‑Discrimination Act (NSW) should be read down in cases of diversity jurisdiction so that that Act did not apply at all where federal jurisdiction was engaged, whereas, if Mr Lenehan were right, the answer should have been no, the Tribunal could still hear cases involving diversity but it is just that its orders could not have been enforced under section 114 of the Anti‑Discrimination Act which is the New South Wales equivalent to section 90.

The Court did not, in our submission, or should not be treated - this Court should not be treated as having proceeded in ignorance of the possibility that there was an ‑ an argument could be made in favour of reading down of the kind that Mr Lenehan has now advanced, and we say that, your Honours, because the Commonwealth in Burns v Corbett expressly drew your Honours’ attention to that possibility.

I hope that you have attached to our three‑page outline a one‑page extract of the submissions that the Commonwealth made to this Court in that matter. There are a couple of cover pages but the last page of our outline should include a page that includes paragraph 67 of the Commonwealth’s submissions there. If your Honours have that you will see that at 66 we submitted:

A question arises as to the consequence of those conclusions –

basically, if the implication was accepted:

for the validity of provisions of the AD Act –

and then at 67 on our primary argument, which was the implication argument:

to the extent that [those Acts] purport to authorise the Tribunal to exercise judicial power . . . within s 75(iv) of the Constitution they would be invalid. However, those Acts can be (and therefore must be) read down or severed so as to remain within the constitutional limits. It might be thought sufficient to avoid invalidity to read down the registration provisions, which would produce the result that the Tribunal would not exercise judicial power in such a matter. However, for reasons explained by Kenny J in the Tasmanian ADT Case, reading down or severance of that kind would produce a result that was “fundamentally different” to the operation of those Acts in other cases, and would result in a “set of provisions” that the Parliament did not intend”, meaning that such a reading down is not possible.

So, your Honours heard submissions and there were many State interveners specifically flagging the possibility, discounting it for the reasons that Justice Kenny had given and favouring a reading down of the jurisdictional provisions. What your Honours did, and I will not take you to the orders in Burns, but at 64 in the joint judgment of your Honour the Chief Justice, Justices Bell and Keane, and at paragraph 120 in your Honour Justice Gageler’s judgment, is that your Honours read down the jurisdictional conferring provisions so that the Tribunal just could not exercise jurisdiction at all once federal matters had been raised - there diversity jurisdiction but in principle any 75 or 76 matter.

So that our friend’s argument not only collides with intermediate court authority but is fundamentally inconsistent with the way that Burns v Corbett itself was decided. Quite separately from the questions of authority it is also, in our submission, inconsistent with settled principles in relation to the way reading down works and there really for the sake of convenience can I ask your Honours to go to a passage in Justice Edelman’s judgment in Clubb v Edwards which you will find in volume 6 behind tab 34. It is [2019] HCA 11; (2019) 267 CLR 171 and when your Honours have it if you could go to page 321, paragraphs 431 and 432.

There, your Honour Justice Edelman, if I might respectfully submit, summarises by reference to the main authorities in this area, some of the limits on the operation of provisions such as section 3 of the Tasmanian Act. The first, at 431, dealing with the limit that there cannot be partial disapplication:

if it would alter a statute’s general policy or scheme –

and then, in the latter part of that paragraph, your Honour gives an example of that:

An instance where the policy of the statute or provision could be altered might be if there various equally available methods of partial disapplication, so that the provision could “be reduced to validity by adopting any one or more of a number of several possible limitations”.

Just pausing there, your Honours, if the Court in Burns v Corbett had thought we could reduce the Anti-Discrimination Act (NSW) to validity by doing the reading down that we have adopted – limiting the jurisdictional provisions – but another way that would be open would be to read down the registration provisions, then that would have presented a problem because your Honours would have been confronting a situation where there were two ways of limiting the statute to validity – that would produce quite radically different operations of the statutory scheme.

In our submission, that in itself supports the proposition, particularly in circumstances where both possibilities were raised by the arguments before the Court that your Honours accepted, in my respectful submission correctly, that Mr Lenehan’s proffered reading was not available – as Justice Keane found it was not. The reason is the reason identified by your Honour Justice Edelman in paragraph 432 – a second limit, where:

after partial disapplication, [the scheme] would operate differently upon the remaining subject matter from how it would have operated without partial disapplication. For this reason, “the enactment, when read distributively, must operate upon the persons and things affected by it in the same way as it would have operated if it had been entirely valid”.

This is, in my submission, exactly the point that Justice Kenny made in paragraph 254. It would not have operated in that way, because for people who remained bound by this statute on the Human Rights Commission’s argument – some of them get an enforceable judicial order, and some of them do not – quite differently from the position pre- the reading down.

That contrast is really made blindingly clear by paragraphs 74 and 75 of the Commission’s submissions – I do not need to take your Honours to them, but there it is submitted in terms that in wholly State matters, the Tribunal can make enforceable orders, whereas it is said in paragraph 75, in matters where federal issues are raised, they cannot.

Now, there is then a rather elaborate argument developed in paragraph 75 about how, in a federal case, the orders create new rights and obligations which it is asserted could be enforced by a court even though section 90 is not available. Our friend’s oral outline suggests that maybe that they had gone a little cold on that argument – they invite your Honours not to decide it unless it is necessary to do so.

The basic point that we make in short answer to that paragraph is that looking at the scheme of the Anti-Discrimination Act, it is not a scheme that creates rights or duties that are enforceable by court order outside the scheme that the Act itself creates. That was the holding of six Justices of this Court in Re East, Ex parte Nguyen which we cited in our oral outline – and I probably do not need, I think, to take your Honours to it – we have given you the references to the relevant paragraphs.

But in effect, what that case was about was an attempt by someone in the context of the Racial Discrimination Act (Cth) to enforce in a county court proceeding obligations imposed by that Act. The court said no, you cannot do that, because the Act provides its own – this is paragraph 32, I am paraphrasing – the Act provides its own exclusive regime for remedying contraventions. The only right that the Act creates is a right to engage in the processes prescribed by it, and the duties or liabilities that are created are correlative to that right.

So that if you cannot enforce rights under sections 89 and 90 within the scheme of the ADT Act because it has been read down, as Mr Lenehan suggests it should be, the proposition advanced in paragraph 75 that you can then just go to a court and enforce them outside of that regime is wrong, for the reasons given in Re East.

So I have dealt with that reasonably quickly, your Honours, but for the reasons given by Justice Kenny, approved multiple times thereafter, it is clear that the Tribunal exercises judicial power both because of the functions and because of the enforceability provisions in section 90, and section 90 cannot be read down for the very reason given in the authority and at least implicitly accepted by this Court in Burns, so that there is nothing in the proposition that the Tribunal here would not have been exercising judicial power and, because it was exercising judicial power, the Burns v Corbett negative implication would have been engaged once federal jurisdiction was triggered.

So unless your Honours have any questions, those are our submissions on the first point, the judicial power point, being the point we had not addressed in writing, and I will turn then to the second part of our oral submissions concerning the limits of the circumstance in which federal jurisdiction might be engaged.

Can I do that, your Honours, by starting with – and I probably do not need to take your Honours back to it, but you will remember Mr Batt took you to paragraph 5 in the Full Court’s reasons where the Chief Justice with the agreement of her Honour Justice Wood said that the Tribunal should have proceeded because, even though the federal defence was not colourable, it was misconceived. That was the essence of what his Honour said. So can I take those two elements in turn – colourable, and then misconceived.

By “colourable” what the Full Court meant, consistently with what the Full Federal Court meant in Burgundy Royale, now some 35 years ago – and I will not take your Honours to Burgundy Royale, but at the bottom of page 219 their Honours make it clear that when they said “colourable” they meant “for the improper purpose of ‘fabricating’ jurisdiction”. That is, they meant exactly what my learned friend Mr Batt meant when he used the word “colourable” and he answered questions I think from your Honour the Chief Justice and Justice Steward about what is colourability by saying it means for the improper purpose of fabricating jurisdiction.

Now, Mr Batt was then careful to say that, while that is a subjective improper purpose, there does not need to be direct evidence of the improper purpose; it can be inferred from the objective surrounding circumstances. But the question, as your Honour Justice Edelman clarified in some exchanges with my friend, is about whether the objective surrounding circumstances support an inference of a subjective improper purpose. That was how he was putting the case and that, in my submission, is consistent with the way the Federal Court for a long time has used the word “colourable”.

Everybody before the Court except we think Western Australia accept that a claim that is colourable in that sense does not engage federal jurisdiction. So if a colourable claim in that sense was made to the Tribunal, it could have continued to discharge its judicial function without infringing the Burns v Corbett limit.

In our submission – and Victoria we think puts this in much the same way – the principal basis for that limitation is that if a claim has actually been made for the improper purpose of fabricating jurisdiction, then it is not truly part of the controversy between the parties. It is not one of the real issues to be resolved. It has been added as a device in order to try to achieve a jurisdictional benefit, so that as a matter of substance, looking at the content of the matter, it does not include the colourable claim.

So that in principle is why, in our submission, one can leave such a claim out of account. But the Full Court found, and nobody disputes, that the section 109 defence based on federal law was not colourable. So the existence of that colourability limit does not really take us very far in the context of resolving this case.

So what then of misconceived? In particular, if a claim is not colourable in the sense just described, but it is misconceived, leaving aside the precise language used to describe it for a moment, then does it engage federal jurisdiction?

Now, we respectfully agree with Mr Batt, that when the Full Court of the Supreme Court of Tasmania used that word in paragraph 5, they appear to mean wrong on its merits, because the analysis that follows is then directed to actually deciding whether the argument is right or wrong. In our respectful submission, that approach is clearly incorrect for the reasons that Mr Batt has given, and I do not seek to add to what he has already said about that.

But if this Court agrees on that point and therefore decides to allow an appeal against the Full Court in this matter, in our submission it is highly desirable that the Court identify the error that the Full Court made with precision, and therefore that it clarify the relevance, if any, of the fact that a federal claim is objectively entirely without merit to the question of whether or not federal jurisdiction has properly been engaged or not.

This is really where we part company with the appellant because the appellant, as we understand Mr Batt’s submissions, prefers the view that it is only where one can infer a subjective improper purpose that federal jurisdiction is not effectively engaged. So, he points to cases – and we agree that this is sometimes an available mode of reasoning where it is possible to say because this claim is so hopeless, the only reason it can have been raised was for the purpose of fabricating jurisdiction, and therefore the hopelessness of the claim supports an inference of the subjective improper purpose.

The problem with that, at a practical level, your Honours - and it arises particularly clearly in the context of Tribunals - is that, as your Honours know, over recent decades, I think all of the States have created state administrative Tribunals that have been invested with a combination of administrative and judicial power. They are often intended to be lower cost, less formal environments in which to determine disputes, and it is not uncommonly the case that parties are either unrepresented, or they are represented by practitioners who can be expected, with no disrespect, to have little appreciation of the constitutional niceties that govern federal jurisdiction.

But if we take, for example, an unrepresented litigant in a tribunal, with little or no legal knowledge, it would usually be impossible to establish that an argument was being advanced colourably in the sense of subjectively for the improper.....jurisdiction. It is often hard to do that even in the superior court because it is akin to an allocation of bad faith and practitioners understandably are reluctant to make allegations of that kind against other practitioners.

But that is not to deny, and your Honour Justice Edelman gave the sovereign citizen example, and one could give others, that there may be people – self‑represented parties in particular – raising arguments that they genuinely and honestly believe are good but which are nevertheless, objectively, manifestly hopeless.

In the context of that particular fact scenario, one that in my submission can reasonably be expected to be a common one, if colourability is the only limit, understood as it has been since Burgundy Royale, then the practical effect is that a State Tribunal, constituted under a State law, perhaps giving exclusive responsibility within the State for resolving particular kinds of disputes, might be totally unable to discharge its function because of a totally hopeless, utterly misguided argument that is genuinely advanced by the party concerned and colourability will not solve that problem, even though, in our submission, there is no reason the Constitution should be interpreted as depriving the Tribunal of the capacity to discharge its functions in a situation of that kind.

The reason we say that is because there may be cases in effect where the argument is so weak that there is really nothing to decide. All the Tribunal needs to do – all the Court needs to do is to say this argument is obviously hopeless. So, it does not as a matter of substance, colour or affect the proper characterisations of the issues in dispute because there is really only one answer to the argument that has been ‑ ‑ ‑

GORDON J: Sorry, Mr Solicitor‑General, is that to pick up, in effect, the reverse of what Chief Justice Gibbs said at General Steel and, in effect, put it as if it is – cases where argument is unnecessary to establish futility? On the face of it, it does not require argument because it is – you can see on the face of it, it is futile. So, for example, we have occasionally in this Court, but otherwise claims, for example, that the Constitution has no force - those kinds of arguments.

MR DONAGHUE: Yes, your Honour. So, from the conceptual position that I have tried to articulate, we then tried to give some thought to how should one articulate this limit. If there is, in addition to the subjective fabricating jurisdiction limit, also a limit objectively based on an argument being very bad, how should we describe it?

The parties and interveners have done that in various different ways, but it seemed to us that rather than introduce a new verbal formula into the law, it may be productive of clarity to use one that was already there, and that had an established and understood meaning and that which we selected was drawn from the joint judgment of this Court in Spencer, where, describing the common law summary judgment test, four members of the Court said that a claim that is so clearly untenable that it cannot possibly succeed was one that was apt to satisfy that test.

EDELMAN J: Mr Solicitor, you are talking about a level above a summary judgment test, though, are you not? I mean, you are really talking about something that is so clearly untenable that it cannot possibly succeed on its face, rather than something that after, to use Chief Justice Barwick’s language, substantial argument, becomes clear that it is so clearly untenable that it cannot possibly succeed.

MR DONAGHUE: Yes. Well, your Honour, the examples that I have given thus far are the very obvious on their face examples and, in my submission, that is the core of what we are trying to get at with the test that we identified. In the passage in Spencer that we have drawn from, which is at paragraph 55 in the judgment, I will not take your Honours to it now, but the four members of the Court, in giving that formula, added their own italics – those words are Chief Justice Barwick’s words from General Steel, but the Court added italics to “clearly” before “untenable” and to “possibly” before “succeed”. So, their Honours were taking Chief Justice Barwick’s formulation and doubling down on those modifying words, and then their Honours said, it is a test:

of demonstrated certainty of outcome

So, if the summary judgment test in the common law context was understood in the way that we understand paragraph 55 of Spencer, it seems it is a very high bar. We formulated it intending it to be so.

The question of how much argument you can then have is a perhaps somewhat vexed one. We would expect usually very little. But it might be the case sometimes that some argument is necessary in the sense that from time to time – I can remember one example from my own professional experience about a decade ago where there was an issue arising under the Water Act, the Water Act (Cth), which intersects with State Water Acts, and the legislative regime is just complex. It is an extremely complex legislative regime, but once one understands how the bits fit together, it was obvious that the claim should have been under the State Act, when it had actually been made under the Commonwealth Act.

Now, it took a couple of hours of argument to a judge who had never seen this regime before, to explain how the bits fit together, but the moment one sees how the regime fits together, it was totally obvious beyond any argument that the claim had been made under the wrong Act. Maybe a claim of that kind could be articulated, but in the end that is not essential to my submission. We are just trying to identify a scenario where claims that are obviously bad can be dealt with without depriving the Tribunal of jurisdiction, but in our solution ‑ ‑ ‑

KIEFEL CJ: Mr Solicitor, does one need to go any further than the Court said in Burgundy Royale itself, when talking about what was colourable, when it said that the matter might be unarguable?

MR DONAGHUE: Yes. So, thank you, your Honour. In the end, in my submission, the words that one uses – I accept there is a range of possible views about the words that one uses – “unarguable” – it captures the kind of idea that we have in mind. For some reason that phrase in Burgundy Royale has not really been picked up and, in our submission, it is perhaps an interesting case study in the way that the law can develop in that that language, “unarguable” in Burgundy Royale, was picked up from a judgment of this Court in R v Cook; Ex parte Twigg, which we have also cited in paragraph 5 of our written outline, and there Justice Gibbs, with Justices Stephen, Mason and Wilson in agreement, was discussing the jurisdiction of this Court on a claim for prohibition and said the claim for prohibition had not been made colourably, and then went on to observe:

that claim cannot be said to have been unarguable, although I need express no opinion on its correctness.

So in this Court in Twigg Justice Gibbs for a majority of the Court seems to contemplate that in addition to colourability, you had an unarguability standard. Burgundy Royale picks it up, expressly citing that same passage, but in the years since then, colourability and the subjective improper purpose has assumed significance and the unarguability has somewhat dropped away in the understanding of the profession as to how this limit works.

One can go back to Hopper, which we have also cited, where Chief Justice Latham also used language that suggests that in addition to colourability there was an unarguability inquiry to be made there, Justice Starke in dissent even more strongly. Mr Batt mentioned Justice Evatt who perhaps went the other way and said colourability was the only limit. But certainly one can find within the authorities recognitions that really weak claims are not sufficient in order to properly enliven federal jurisdiction and one sees ‑ ‑ ‑

GORDON J: Mr Solicitor, can I ask one question. Do you accept that in Johnson Tiles that was the kind of concept that Justice French, as he then was, and Justice Beaumont were addressing when they were looking at it and describing it as by its very nature denying its character of having an element of a claim?

MR DONAGHUE: Your Honour, I do not. In my submission, in Johnson Tiles in paragraph 88 I think that his Honour, or their Honours, had in mind an even narrower class of case of the kind your Honour put to me in example before an argument that the Constitution does not exist, because I think the reason a claim like that of its very nature denies its character as an element of the controversy is a matter can hardly arise under the Constitution if there is no Constitution, so that the claim was ‑ ‑ ‑

GORDON J: I think that is what I was putting to you. So when you say it is unarguable, it seems as though it has been picked up in subsequent cases on a narrower basis, like the sovereign citizens, like the case where the Constitution has never been enacted, et cetera.

MR DONAGHUE: Yes, indeed. So that means ‑ ‑ ‑

GORDON J: As an element – sorry, just to complete, so when we talk about colourability, to pick up the Chief Justice’s question, not only in Burgundy Royale do we have “unarguable”, but it has been explained and demonstrated in subsequent cases by reference to this narrower class of case which is, on its face - not give rise to a claim because of the very nature of the claim made.

MR DONAGHUE: Yes, your Honour, but perhaps in that explanation the concept has been narrowed a little more than it should have been, because there may be claims that are not ‑ ‑ ‑

GORDON J: Or a little narrower than you would like it to be.

MR DONAGHUE: Well, in my submission, yes, your Honour. In my submission, as a matter of principle a little narrower than it should have been. The reason that Johnson Tiles is an interesting case here is that in Johnson Tiles there was one federal claim, a section 52 claim which was struck out applying the General Steel test. Then the Federal Court said, well, we still have accrued jurisdiction in relation to the matter, even though applying the General Steel test, the only federal claim had failed, so that Johnson Tiles is relied upon against us as a case that suggests that the strikeout‑type standard is not appropriate.

EDELMAN J: Mr Solicitor, the very narrow approach does have the benefit, does it not, that it aligns with your submission about what the rationale of this limit is in relation to subjective improper purpose in that both the objective or the subjective approach are concerned with the court saying on its face or due to the motivations, there is no real controversy about this issue. There is no dispute that the court needs to adjudicate upon, not even a really weak one. It is so manifestly hopeless that the court does not need to adjudicate upon it.

MR DONAGHUE: Yes, but it can say that, even though it has before it a person who earnestly believes that this is part of the dispute that they want to have agitated. Really, all I was trying to put in answer to Justice Gordon is that that might be so in relation to claims that are internally self‑defeating such as that there is no constitution, but it might also be so in relation to other kinds of arguments that, for various reasons the Court can look at and say there is nothing to be said on the other side of this point. There is nothing of substance to decide.

We would urge upon the Court the proposition that the moment that there is something that actually does call for a decision, then Burns v Corbett means that decision should be made by a court. But it is at the level where there really is not enough that calls for a decision of that kind that we submit that the Court should recognise a limit other than colourability.

It should not, in our submission, try to squeeze that objective inquiry into colourability because colourability has such a settled meaning now over 35 years that that is likely to be productive of confusion in the profession as a whole. In our submission, it would be better to recognise that there is this objective cast.

Now, your Honours, can I say in relation to Johnson Tiles that, to the extent that it is – if it had been thought that Johnson Tiles was inconsistent with the point that we are making, we submit that your Honour should not follow it and we are fortified in making that submission by the way the story in Johnson Tiles ended, which was that there was an application for special leave from the judgment of the Full Court, which was granted by Chief Justice Gleeson, Justice Gummow and Justice Hayne.

Appearing on that application for special leave – and we have given your Honours the transcript in the supplementary bundle behind tab 1 – Mr Beach, as his Honour then was, made an argument a lot like the argument I am putting to your Honours now. He said colourability is not the test, there is also an objective component to it. Mr Burnside, resisting special leave, said no, no, colourability is the test, it is subjective in proper purpose only. At the end of all of that, Chief Justice Gleeson said to Mr Burnside, well, assume we might be against you on this, what do you say about various undertakings to preserve the positions of the parties - and special leave was granted.

So, the question your Honours are facing now would have come up in that appeal. What then happened was that the trial judge, Mr Merkel in his earlier manifestation, said, the High Court having granted special leave, there does now seem to be a real risk about the jurisdiction of the Federal Court in this matter – this was a case involving millions of dollars – huge legal resources were being spent on it. So, the matter was ordered to be transferred to the Supreme Court of Victoria, where there would not be any doubt about jurisdiction, and that having happened, the High Court appeal was discontinued.

So, we never found out the answer to the question, is colourability the only limit or is there this further objective matter. But at least, back then, the correctness or otherwise of the approach that Justice French took as a member of the Federal Court was regarded as a live issue and, for reasons that I have sought to develop, we submit that it..... I will not take your Honours ‑ ‑ ‑

GLEESON J: Mr Donaghue, is one way of looking at this that the starting point is to look at what is alleged on the face of the claim – to see whether or not there is a controversy and, once there is a controversy you then look for whether there is a genuine controversy and that is where the question of colourability comes in, but then it is not necessary to ask a third question which is about tenability.

MR DONAGHUE: Well, it might depend, your Honour, on what the question at the first step means as to whether there is a controversy or not. It might be that that would pick up the same kinds of consideration. But, in my submission, it is easy enough to ask the question and everybody understands what the question colourability means – if it is about whether you can show the jurisdiction has been fabricated. But experience suggests that it is not often that people even make that allegation let alone establish it.

It is easier, in my submission, to say, objectively, that an argument purporting to raise a federal claim is so bad that it does not really do so and that matters now in a way that it has not mattered before since the Burns v Corbett implication was recognised because it means that people raising really hopeless arguments might pose a real impediment to the capacity of State Tribunals to do their jobs.

The Burns v Corbett implication – as a negative implication from Chapter III – is designed to make sure that only courts decide the kinds of issues that had been reserved exclusively to federal jurisdiction. But the purpose of that implication does not require that manifestly hopeless arguments only be decided by courts. So, it makes sense as a matter of principle, in our submission, to recognise some limit around tenability for the reasons that I have tried to capture.

The Court has – I will not take your Honours to them, I think, in light of the time – but the Court has needed to grapple with this issue in a related context in the 78B context where – as your Honours are well aware – not only do notices need to be given but the Court needs to adjourn when a matter arises under the Constitution in using the same language as is relevantly used in section 76(i), so, in our submission, the whole point of the scheme being to make sure that the Commonwealth and State Attorneys are alerted when a constitutional issue arises.

The test that determines whether a matter arises under 76(i) and the test that determines when 78B is engaged should, relevantly, be the same. But in the context of 78B, the courts have recognised that there is a threshold based upon the objective strength or not of the argument. Your Honour Justice Gageler in Re Culleton – which we have cited in the third bullet point under paragraph 5 – collected a number of the authorities in this area, including Justice French in Berbatis Holdings where his Honour had said there – in the 78B context – that the Court did not have a duty not to proceed no matter how trivial, unarguable, or concluded the point may be in some memorable language in ‑ ‑ ‑

GAGELER J: Mr Solicitor, can I just something about section 78B? The question that arises in relation to section 78B is whether a court, having jurisdiction, can proceed to exercise the jurisdiction immediately or has to wait until notices have been given? That stream of authority to which you refer – at least on my understanding – is based on a purposive construction of section 78B in which the textual work done is not – the textual burden of the holdings lies in the word “involves” – “truly involves” or “genuinely involves” or “substantially involves” a matter arising under the Constitution rather than simply there being a matter arising under the Constitution. So, there seem to me to be two distinctions. One is section 78B is concerned with the exercise of jurisdiction and, two, there is a textual distinction in that it has this additional word.

MR DONAGHUE: Yes – “involves” a matter arising under the Constitution. Your Honour, I accept what your Honour says but we do submit that if the rationale for holding that a very bad argument does not require the Court to adjourn is that the raising of the very bad argument does not mean that the matter – with respect to which the Court is presently seized – involves a matter arising under the Constitution it must be because the point is sufficiently weak that it cannot properly be described as affecting the character of the matter so as to give it the character of a matter arising under the Constitution.

If the argument was sufficient to mean that there was a matter arising under the Constitution, then the proceeding would involve a matter arising under the Constitution, and people should be told about it, in my submission. So, while I do accept that that textual distinction can be drawn, it does – the points that your Honour has made, picking up Justice Toohey, I think, in one of the cases in Finlayson, said, well, a matter does not arise under the Constitution just because someone says it does. There is separately from the claim, an evaluation of the substance of it in answering the question, does this matter arise under the Constitution or not, and the Court has been prepared to say, on numerous occasions, the argument is bad enough that it does not and, therefore, I can proceed anyway – usually then to immediately dismiss the claim that is being made.

So, the Court is taking what is, in my submission, an understandable pragmatic approach that says, well, I do not need to adjourn this because I can tell that I am going to dismiss it because it is so weak that there is no substance to it so what is the point running up the cost of the parties and time by adjourning only to then reach the inevitable answer? Those cases, I accept, are not squarely on point but as a matter of substance they involve a not dissimilar analysis to that that we have put forward.

As Mr Batt has mentioned, I think, in his submissions, the authorities including Agtrack, amongst others, establish that the question of whether federal jurisdiction is engaged or not is one for objective assessment, and we submit that that having been recognised, it is quite consistent with all of the cases that I have mentioned for the Court to accept that, separately from the colourability limitations, there is a limit of the kind for which we contended.

As I have sought to develop, we are not ultimately committed to the verbal formulation that we used to try to capture those tests. We proffer “so clearly untenable” also, so clearly untenable that it cannot possibly succeed for the reasons that I have endeavoured to explain, and I do not think I need to take your Honours to Spencer in order to develop that. Your Honours can see Spencer [2010] HCA 28; (2010) 241 CLR 118 in volume 11 at tab 77 if you wish to go to it.

Your Honours, can I, in the two or three minutes remaining, deal with our third and final points that I intend to make before handing over to Ms Gordon which – she will now need to be tomorrow – concerning the limits of the Tribunal’s role. We have addressed this in writing at paragraphs 23 to 28 in terms that I do not seek to add to, and we also adopt the submissions that New South Wales have made from paragraphs 23 to 25 and 32 to 38.

The only point that we would seek to add is in response to Western Australia at 41, 42 and 46, which is a submission to the effect that the Tribunal should have determined the merits of the inconsistency argument as part of the process of forming an opinion as to its own jurisdiction.

The short point we make is that while we accept that the Tribunal is entitled, and perhaps obliged, to form an opinion as to the limits of its own jurisdiction, an opinion as to the merits of the inconsistency argument would only form part of that process if the limits of the Tribunal’s jurisdiction depended upon the answer to the substantive argument that had been raised, but they clearly do not because, for the reasons that Mr Batt has developed it is the raising of the federal issue that enlivens federal jurisdiction and so potentially enlivens the Burns Corbett implication, not the resolution of the substance of the federal issue.

So all that the Tribunal can properly do in the course of forming an opinion as to the limits of its jurisdiction is form an opinion as to whether the federal argument has been raised, and in addition to the cases that Mr Batt cited, Palmer v Ayres is another example of that at paragraph 27.

EDELMAN J: Mr Solicitor, that is a distinction between heads of jurisdiction that are concerned with subject matter and those that are concerned with locality or person?

MR DONAGHUE: It is, your Honour. I was skating over things quickly, but that is certainly so. So that in the ADT Case, for example,
Commonwealth v ADT, it was the Commonwealth as a party that enlivened the issue. It could be that. It could be diversity, as it was in Burns v Corbett. But all of my submissions about the raising of the issue and indeed about untenability are concerned with subject matter jurisdiction under 71 or 72 and do not go further than that.

But we do submit – and this is my last point – that the Court, having been clear in Burns v Corbett, particularly at paragraphs 45 to 47, that the implication identified there is part of the working out of the Boilermakers implication, that is, it is part of the negative implications to be derived from Chapter III, it would make no sense for the raising of a federal issue to be sufficient to engage federal jurisdiction, in a Federal Court, for example, but to have a different principle apply on the flipside to define the scope of the negative implication. In other words, what is granted affirmatively by Chapter III must be the same as what is negatively extracted from the jurisdiction of a State tribunal and WA’s submission, in our respectful submission, does not grapple with that point.

Your Honours, unless the Court has any questions, those are the submissions that I sought to address, and Ms Gordon will deal with the inconsistency argument when it is convenient to your Honours for her to do so.

KIEFEL CJ: Yes, thank you, Mr Solicitor. The Court will now adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 9 FEBRUARY 2022