Appeal Panel - Internal CITATION: Sunol v Collier [2009] NSWADTAP 34 APPELLANT John Sunol PARTIES: RESPONDENT Henry Collier FILE NUMBER: 099002 HEARING DATES: 6 April 2009 SUBMISSIONS CLOSED: 28 April 2009 DATE OF DECISION: 4 June 2009 BEFORE: Britton A - Deputy President; Furness G - Judicial Member; Gill M - Non-Judicial Member CATCHWORDS: Question of law, whether to refer to Supreme Court DECISION UNDER APPEAL: Collier v Sunol [2008] NSWADT 339 FILE NUMBER UNDER APPEAL: 081045 Administrative Decisions Tribunal Act 1977 LEGISLATION CITED : Interpretation Act 1987 Judiciary Act 1903 (Cth) CASES CITED: Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385 APPELLANT M Robinson, barrister REPRESENTATION: RESPONDENT F Berglund, barrister ORDERS: Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 the following questions of law are referred to the Supreme Court for the opinion of the Court: Whether eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters?Whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires?Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters? REASONS FOR DECISION 1 On 21 January 2009, the appellant filed an appeal against a decision of the Tribunal (Collier v Sunol [2008] NSWADT 339). The appeal was listed for hearing on 6 April 2009. 2 On the day of the hearing, the appellant filed an Amended Notice of Appeal seeking to argue a number of matters said by him to raise issues under the Commonwealth Constitution. 3 Having done so, he sought an order from the Appeal Panel that these questions of law be referred to the Supreme Court pursuant to s 118 of the Administrative Decisions Tribunal Act 1977. That section provides that an Appeal Panel may, of its own motion or at the request of a party, refer a question of law to the Supreme Court. 4 The Amended Notice of Appeal raises five contentions. They raise the following questions that the appellant seeks to have determined by the Supreme Court: Whether eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters? Whether s 49ZT of the Anti-Discrimination Act 1977 should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters? Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 are unlawful or ultra vires? Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters? Respondent's submissions 5 The respondent submits that the order sought ought not be made. He says that none of the questions the appellant seek to have referred were raised expressly or implicitly during the primary hearing and that s 118 affords the Appeal Panel a discretion whether it will refer questions of law. He argues that the discretion enables the Appeal Panel to prevent abuse of process and futile Supreme Court references. 6 He contends that the questions raised at the last minute by the appellant have limited chance of success. He concedes, however, that the Administrative Decisions Tribunal has no jurisdiction to determine questions of constitutional law and that, if the Appeal Panel is persuaded that the appellant has raised legitimate questions of constitutional interpretation relevant to the appeal then it may be appropriate to refer the appellant's questions to the Supreme Court. 7 The respondent, however, strongly contends that if the questions are referred to the Supreme Court that the appellant should pay the respondent's costs of the referral and any subsequent costs of the appeal. Should the questions be referred? 8 The Appeal Panel, as an administrative body, is required by the terms of s 115(1)(b) of the Administrative Decisions Tribunal Act and s 31(1) of the Interpretation Act 1987 to have regard to any limits placed on NSW legislation by the Commonwealth Constitution when making its own decisions. 9 But, unlike State courts, the Tribunal may not exercise the judicial power of the Commonwealth. It cannot make judicial pronouncements on where those constitutional limits lie. If those limits are in contention, it is for a court vested with Federal jurisdiction to determine the question: Attorney-General (NSW) v 2UE Sydney Pty Ltd (2006) 236 ALR 385. The Supreme Court is such a court: s 39 of the Judiciary Act 1903 (Cth). 10 While we note the respondent's contention that the appellant has little chance of success in his constitutional argument, the question whether the argument has merit is, obviously, not a question for us to decide and is irrelevant to the determination of the question whether we should refer the matter to the Supreme Court. Although the application comes very late in the day, there is no suggestion that this is an abuse of process. 11 The questions raised by the appellant cannot be answered by the Appeal Panel. They are also questions of general importance and involve substantial argument. It is therefore appropriate that they be referred to the Supreme Court for its opinion and determination. 12 In our opinion, to prevent delay in the Supreme Court proceedings, it would be appropriate also to direct that the appellant immediately issue notices under s 78B of the Judiciary Act to the Attorneys-General of the Commonwealth and States and Territories. Costs 13 In written submissions the respondent foreshadowed that he will seek an order for the costs of the referral to the Supreme Court if the appellant is unsuccessful in respect of any or all of the questions of law the appellant now seeks to have referred. Furthermore he advised that even if the appellant were to be successful he will strenuously oppose any costs order being made against him. He points out that none of the questions sought to be referred were raised during the primary hearing and that in respect of the appeal, the referral was only raised at the eleventh hour –on the day of the hearing of the appeal. 14 In our view it would be premature to determine the issue of costs at this stage of the proceedings. Leave is granted to the respondent to make an application for costs in respect of the hearing on 28 April 2009 once the Supreme Court has provided an opinion on the questions of law referred. Orders Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 the following questions of law are referred to the Supreme Court for the opinion of the Court: Whether eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters? Whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters? Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires? Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters? DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.