Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sunol v Collier [2012] NSWCA 14 Hearing dates: 31 October 2011 Decision date: 20 February 2012 Before: Bathurst CJ at 1; Allsop P at 1; Basten JA at 1 Decision: (1) Direct that the applicant, within 14 days of the date of this judgment, file an amended summons seeking relief in such form as he thinks fit, in place of the questions referred by the Tribunal. (2) In the event that the applicant does not seek to take such a step, direct that the applicant notify the Court and the Attorney General within the same period, namely 14 days of the date of this judgment. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - tribunals - Administrative Decisions Tribunal - procedure - referral of question of law to Supreme Court - Administrative Decisions Tribunal Act 1997 (NSW), s 118 - whether appropriate for the Supreme Court to answer CONSTITUTIONAL LAW - federal judicial power - whether Administrative Decisions Tribunal has jurisdiction to determine constitutional questions - whether constitutional questions can arise before the Administrative Decisions Tribunal Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), ss 108, 114, 118 Anti-Discrimination Act 1977 (NSW), ss 91A, 49ZT Constitution, s 77(iii) Constitution Act 1902 (NSW), cl 5 Interpretation Act 1987 (NSW), ss 12, 31 Judiciary Act 1903 (Cth), ss 79, 80 Cases Cited: Attorney General (NSW) v Radio 2UE Sydney Pty Ltd [2006] NSWCA 349; 226 FLR 62; 236 ALR 385 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30 Collier v Sunol [2005] NSWADT 261 Collier v Sunol [2008] NSWADT 339 Felton v Mulligan [1971] HCA 39; 124 CLR 367 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581 South Australia v The Commonwealth [1942] HCA 14; 65 CLR 373 Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77 Category: Procedural and other rulings Parties: John Christopher Sunol - Applicant Henry William Collier (Estate of the late Henry William Collier) - First Respondent Administrative Decisions Tribunal, Appeal Panel - Second Respondent Attorney General of New South Wales - Intervenor Representation: Counsel: Mr N J Owens - Applicant Submitting appearance - First Respondent Submitting appearance - Second Respondent Dr J G Renwick SC/Ms S Cirillo - Intervenor Solicitors: AMC Lawyers - Applicant Gilbert & Tobin Lawyers - First Respondent I V Knight, Crown Solicitor's Office - Second Respondent I V Knight, Crown Solicitor's Office - Intervenor File Number(s): CA 2009/298492 Decision under appeal Jurisdiction: 9113 Citation: Sunol v Collier [2009] NSWADTAP 34 Date of Decision: 2009-06-04 00:00:00 Before: A Britton - Deputy President; G Furness - Judicial Member; M Gill - Non-Judicial Member File Number(s): ADT 081045 Judgment 1JUDGMENT of the COURT delivered by BASTEN JA : This is an interim judgment in a proceeding presently pending in this Court. The proceeding involves four questions of law referred to this Court by the Appeal Panel of the Administrative Decisions Tribunal, pursuant to the Administrative Decisions Tribunal Act 1997 (NSW) ("the Tribunal Act"), s 118. It is necessary to provide a short history of the procedural steps by which the matter came to this Court. 2On 25 October 2004, the late Mr Henry Collier lodged a complaint with the Anti-Discrimination Board in relation to a number of statements published by Mr John Sunol on the internet which, according to Mr Collier, vilified homosexual people, in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW). The Equal Opportunity Division of the Tribunal upheld the complaint in part: Collier v Sunol [2005] NSWADT 261. Further proceedings ensued in relation to appropriate relief. 3In November 2007, a conciliation agreement was executed by the parties, pursuant to which Mr Sunol agreed not to post on any website material referring to homosexual people or homosexuality in a manner which breached relevant provisions of the Anti-Discrimination Act . 4Believing that Mr Sunol had breached the conciliation agreement, in September 2008 Mr Collier sought to register the agreement. On 22 December 2008 an order was made registering a key provision of the agreement (being cl 3 thereof), pursuant to s 91A of the Anti-Discrimination Act : Collier v Sunol [2008] NSWADT 339. 5On 21 January 2009 Mr Sunol lodged an appeal against the decision to register the conciliation agreement on the basis of an error of law. That matter came before an Appeal Panel in April 2009. In the course of the proceedings before the Appeal Panel, it became apparent that Mr Sunol sought to raise questions as to the constitutional validity of the provisions of the Anti-Discrimination Act which formed the basis of the registration of cl 3 of the conciliation agreement. Although the Appeal Panel accepted that it had no jurisdiction to determine the constitutional questions, it acceded to Mr Sunol's request to state four questions of law for determination by this Court: Sunol v Collier [2009] NSWADTAP 34. The four questions referred were as follows: (i) 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? (ii) 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? (iii) 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? (iv) 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? 6The questions referred by the Tribunal arise in a context which needs to be articulated before they can be answered. Relevantly, the context includes the following assumptions: (1) a question having been raised as to the constitutional validity of s 49ZT of the Anti-Discrimination Act 1977 (NSW), for the Tribunal to proceed to deal with the matter would involve the exercise of federal jurisdiction; (2) the Tribunal not being a "court of a State" within s 77(iii) of the Constitution, the Tribunal could not provide a binding and authoritative answer to the question; (3) for the Tribunal to make any order in the proceedings would involve the exercise of federal jurisdiction and would therefore be invalid; (4) once the constitutional issue has been disposed of by this Court, the Tribunal can resolve the remaining issues between the parties, and (5) if the Tribunal lacks jurisdiction to address the Constitutional issue, it nevertheless is a question of law arising in the appeal which it can refer to this Court. Exercise of federal jurisdiction 7Federal jurisdiction is the authority exercised by a court to determine an issue in federal juridical power. A matter will involve the exercise of federal judicial power if, for example, one party has a defence which owes its existence to a law of the Commonwealth Parliament: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581. The resolution of any matter arising under the Constitution or involving its interpretation will constitute an exercise of federal judicial power: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30. Once such a matter is identified, the whole of the jurisdiction being exercised by the court is federal jurisdiction: Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 373. Accordingly, the applicable law must be that identified under Commonwealth law: it may be a State law picked up and applied by a Commonwealth law, such as ss 79 and 80 of the Judiciary Act 1903 (Cth). However, such provisions operate only in respect of federal jurisdiction being exercised by a court of a State or Territory. 8The Tribunal is not a court for the purposes of s 77(iii) of the Constitution, and therefore is not the recipient of powers conferred by Commonwealth statutes effecting an investiture in accordance with that provision: Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77. However, it does not follow that the powers and authority conferred on the Tribunal by State law in some way evaporate immediately an issue is raised in a case, as to, for example, the Constitutional validity of a provision of the State law under which a claim has been made. Pursuant to covering cl 5 of the Constitution Act 1902 (NSW), the Tribunal is bound by the Constitution. If the law is invalid, it is not invalid because a court has declared it to be such: it is invalid because a "pretended law made in excess of power is not and never has been a law at all": South Australia v The Commonwealth [1942] HCA 14; 65 CLR 373 at 408 (Latham CJ). As his Honour continued, "[a]nybody in the country is entitled to disregard it". 9If the Tribunal is persuaded that a State law is invalid and cannot support a claim, it may decline to grant relief. Alternatively, it may grant relief, in which case the unsuccessful party may disregard the order or, more prudently, take steps to have the order set aside. In this respect, the decision of the Tribunal is, like the decision of an administrative official, effective only to the extent that it has understood the law correctly. However, it is not clear that this approach is consistent with the declaration made by this Court in Attorney General (NSW) v Radio 2UE Sydney Pty Ltd [2006] NSWCA 349; 226 FLR 62; 236 ALR 385 (" Radio 2UE") . That case involved a similar argument to that raised in the present proceedings, namely whether s 49ZT of the Anti-Discrimination Act contravened the implied constitutional protection for freedom of communication about government and political matters or, in the alternative, whether s 49ZT should be read down so as not to infringe the constitutional protection. The Attorney General, however, sought prohibition in this Court against the Tribunal, to prevent it from answering those questions. Prohibition was not granted, but the Court made a declaration in the following terms: "A declaration that the Appeal Panel of the Administrative Decisions Tribunal has no jurisdiction to determine whether s 49ZT 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." 10The reasoning of Spigelman CJ in Radio 2UE relied upon the fact that an order of the Tribunal under s 108 of the Anti-Discrimination Act could be enforced by a party obtaining a certificate from the Registrar as to the terms of the order and filing the certificate in the registry of the Supreme Court, with the result that the certificate so filed operated as a judgment of the Court: s 114(3). His Honour concluded that proceedings in the Tribunal, resulting in an order which could be enforced in that way constituted a purported exercise of judicial power, following the reasoning of the High Court in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245. 11Brandy involved a statutory regime arising under Commonwealth law whereby the Commission, which heard complaints of discrimination, made a non-binding determination which, in turn, could be registered automatically in the Federal Court. The High Court held that the scheme for registration was invalid as involving a purported exercise of judicial power, which had not in fact occurred. In Radio 2UE , the Chief Justice recognised that the doctrine of separation of powers "does not operate strictly in the case of State courts and tribunals", but that it is "often helpful when deciding such questions in the context of State legislation to first ask the question whether the matter in issue would fail to comply with the stricter requirements of Chapter III in its application to Commonwealth legislation": at [71]. His Honour then concluded at [75]: "In my opinion, a Commonwealth tribunal which performed the same functions as are in issue in the present case and which operated as part of a legislative scheme that did not have the registration provisions could validly do so. However, a scheme which gives judicial force to a Tribunal decision upon mere registration is not valid. It is the presence of such a provision, and only that presence, that converts what would otherwise be a permissible scheme into an exercise of federal jurisdiction which is impermissible. In my opinion a State Tribunal is in no different position." 12The reasoning in favour of the last proposition appears to be found in the following paragraph which read as follows: "From the perspective of Chapter III, the Appeal Panel is a manifestation of the Executive. The rigour of Australian Chapter III jurisprudence does not permit a distinction to be drawn between a quasi-judicial tribunal and any other executive agency. The position of the Tribunal is no different to that of a Minister. Consider the case of a statute which provides that a Minister's opinion about the Constitutional validity of a State Act can be registered as a judgment of the Supreme Court, enforceable as such against the persons involved in a dispute. It is only necessary to state that proposition to realise that it cannot be right. The Tribunal and Appeal Panel are in no different position." 13His Honour continued at [80]: "A State tribunal may, in my opinion, consider the Constitutional validity of State legislation in the course of the exercise of its statutory powers. However, no State tribunal can exercise the judicial power of the Commonwealth. The registration provisions to which I have referred have the consequence that if the Tribunal and Appeal Panel proceed to do the former, they will purport to do the latter." 14In his concluding paragraphs, the Chief Justice suggested that legislation could provide an alternative to automatic registration in any case involving a constitutional issue. His Honour continued at [90]: "There are of course a number of ways in which the issue sought to be agitated before the Appeal Panel can be resolved. Given the stage which the present proceedings have reached a reference of a question of law to the Supreme Court pursuant to s 118 of the ADT Act would appear to be the most efficacious. However, that is a matter for the parties and the Appeal Panel. The Constitutional issue having been raised the Panel cannot proceed to determine the matter on an assumption that there is no Constitutional question." 15Although the reasoning of Hodgson JA in Radio 2UE is differently expressed, the discussion at [112]-[115], accepting the conclusion of the Chief Justice in respect of the declaration, is to substantially similar effect and emphasised that the scheme for registration of orders made by the Tribunal was the invalidating factor. In Radio 2UE , the Court was apparently not invited to consider the validity of the registration provision. Nevertheless Spigelman CJ noted that one way of resolving the problem revealed may have been to provide "an alternative to automatic registration in any case in which an issue arises before the Tribunal under s 75 or s 76 of the Constitution": at [89]; see also Hodgson JA at [116]. 16In Brandy (at 260), in a passage relied upon by Spigelman CJ in Radio 2UE at [72], Mason CJ, Brennan and Toohey JJ stated: "An exercise of executive power by the Commission and the performance of an administrative function by the Registrar of the Federal Court simply cannot create an order which takes effect as an exercise of judicial power; conversely, an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination." 17What is not fully explained in Radio 2UE is why that analysis holds in respect of a State tribunal and the Supreme Court. On one view, the relevant constitutional doctrine in respect of State arrangements must involve an application of the principles set out in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 , involving the incompatibility of the function conferred on the Supreme Court with the constitutional role of the Court as a recipient of invested federal jurisdiction. More troubling is the dictum at [90] that, once this Court has resolved the constitutional issue, the matter can return to the Tribunal, for it to exercise its statutory powers, as if no federal issue had been raised. First, if there were an issue as to the constitutional propriety of a Tribunal judgment being registered in the Supreme Court and given effect as a judgment of that Court, it would presumably arise whether or not there was a constitutional issue underlying the validity of the judgment. Secondly, the possibility that the Tribunal could, in circumstances where a federal issue had arisen, continue to deal with the matter as if it were no longer exercising federal jurisdiction, would appear to be incompatible with Felton v Mulligan : until resolved, the whole of the matter must involve an exercise of federal jurisdiction, if it be an exercise of judicial power at all. 18There is, however, a more fundamental difficulty with the procedure proposed by the Chief Justice in Radio 2UE at [90]. If the jurisdiction conferred on the Tribunal by its constituting Act does not permit it to determine constitutional questions, that is the result of two propositions: first, that the operation of the Constitution involves an exercise of federal judicial power and the State cannot confer such power on its own courts or tribunals and, secondly, that the Commonwealth, which has power to invest the court of a State with federal jurisdiction, has not done so in respect of the Tribunal, because it is not relevantly a court of the State. 19Properly understood, s 118(1) empowers the Appeal Panel to refer to this Court "a question of law arising in the appeal", being a question of State law. That construction is consistent with the principle that a reference to any matter or thing in a New South Wales Act is a reference to such matter or thing "in and of New South Wales": Interpretation Act 1987 (NSW), s 12(1)(b); and the requirement that the Act be construed so as not to exceed the legislative power of the Parliament: s 31(1). Thus, although the Tribunal must take account of constitutional limitations, in accordance with covering cl 5 of the Constitution Act , it does not follow that such questions arise in an appeal before it, nor that it has power to refer such questions to the Supreme Court. The better view is that they do not arise in the appeal because they are not matters in respect of which it has jurisdiction under the Administrative Decisions Tribunal Act . 20Contrary to the suggestion in Radio 2UE at [76], a decision of the Tribunal in respect of a particular matter may depend upon a view about the constitutional validity of State legislation, but that opinion is not registered as a judgment, nor is it enforceable as such against any person. If the opinion led the Tribunal to decline to make an order, the unsuccessful party might challenge that result by seeking in the Supreme Court an order in the nature of mandamus, or a declaration as to the constitutional validity of the law sought to be enforced. If the Tribunal makes an order, on the basis that the law was indeed valid, the other party, being unsuccessful, could challenge the order by seeking to have it set aside on the ground that the law which supported it was constitutionally invalid. In each case, the Tribunal acted on the basis of an opinion as to the validity of the law in question, but its decision was not in any legal sense determined by that opinion. It did not have jurisdiction to determine the question: the validity of the order will depend upon the conclusion of the Supreme Court (and if challenged, the High Court) as to the correct answer to the constitutional question. Conclusions 21It follows from that analysis that the procedure adopted in the present case, involving a referral of a question pursuant to s 118 of the Administrative Decisions Tribunal Act was itself inappropriate. Each of the questions should therefore be answered, "Inappropriate to answer". 22To allow for the resolution of the present dispute by reference to the issues which remain in contention, it may be noted that, in the course of oral argument before this Court, no party sought an answer to questions (iii) and (iv). The proceedings can thus be resolved by the grant of declaratory relief in terms of the answers sought to questions (i) and (ii). 23To regularise the procedure, it is convenient to invite the applicant to file an amended summons seeking declaratory relief, and, if thought necessary, an order restraining the Tribunal from further considering and determining the matter before it, on the basis that s 49ZT was invalid. It is not anticipated that any further submissions would be required: the Court could then dispose of the proceedings by granting or refusing relief sought in that form. The Court anticipates that it will be in a position to deliver its principal judgment in the matter expeditiously, upon that procedural step being taken. 24Accordingly, the Court gives the following directions: (1) Direct that the applicant, within 14 days of the date of this judgment, file an amended summons seeking relief in such form as he thinks fit, in place of the questions referred by the Tribunal. (2) In the event that the applicant does not seek to take such a step, direct that the applicant notify the Court and the Attorney General within the same period, namely 14 days of the date of this judgment. ********** Amendments 24 February 2012 - Corrected hearing date from 2012 to 2011 Amended paragraphs: Coversheet 24 February 2012 - Corrected hearing date from 2012 to 2011 Amended paragraphs: Coversheet 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. Decision last updated: 24 February 2012