CATS, COURTS AND THE CONSTITUTION: THE PLACE OF SUPER-TRIBUNALS IN THE NATIONAL JUDICIAL SYSTEM.

• Date: 01 April 2020
• Author: Ananian-Welsh, Rebecca

CONTENTS I Introduction II Chapter III and the Integrated Judicial System III The Constitutional Character of Super-Tribunals A Methodology 1 The Balance Sheet Approach 2 The Constitutional Expression Approach 3 A Reconcilable Framework? 4 The Role of History B Parliamentary Intent: A Court Is Called a Court C The Essential Characteristics of Courts 1 A Court of a State Is Independent and Impartial 2 A Court of a State Is Composed of Judges D The Independent and Impartial Judge: Appointment, Tenure and Remuneration 1 A Snapshot of Existing Protections 2 The Requisite Protections for a 'Court of a State' E Further Factors: Practice, Procedure and Powers F A Framework for Determining Constitutional Character IV Critique and Implications A Doctrine B Policy V Conclusion I INTRODUCTION

Since the creation of the Victorian Civil and Administrative Tribunal ('VCAT') in 1998, most state and territory governments have taken the step of amalgamating their networks of discrete subject-matter tribunals to create 'super-tribunals'. The Queensland Civil and Administrative Tribunal ('QCAT'), for example, was established on 1 December 2009 and 'absorbed virtually all the tribunals in Queensland' (1) including the Anti-Discrimination Tribunal ('ADT'), Fisheries Tribunal, Guardianship and Administrative Tribunal, Commercial and Consumer Tribunal, and a further 15 Queensland tribunals. (2) Similar amalgamations led to the creation of VCAT, as well as the New South Wales Civil and Administrative Tribunal ('NCAT'), South Australian Civil and Administrative Tribunal ('SACAT'), Australian Capital Territory Civil and Administrative Tribunal ('ACAT'), Northern Territory Civil and Administrative Tribunal ('NTCAT'), and the State Administrative Tribunal of Western Australia ('WASAT'). Only Tasmania has, to date, resisted the temptation to introduce a super-tribunal of its own, instead maintaining ten discrete subject-matter tribunals, including the Tasmanian ADT, Mental Health Tribunal, and Guardianship and Administration Board. (3)

The Commonwealth has also embraced the trend towards amalgamation. Indeed, '[t]he creation of the Commonwealth [Administrative Appeals Tribunal ('AAT')] has informed much of the subsequent development of tribunals in Australia'. (4) However, the creation of a federal super-tribunal analogous to the state Civil and Administrative Tribunals ('CATs') has been impeded by the strict fetters that ch III of the Constitution places on the combination of judicial and non-judicial powers in a single federal institution (5)--a combination that fundamentally characterises the nature and work of state and territory super-tribunals.

Australian super-tribunals are responsible for hearing and resolving a staggering number of administrative and civil disputes. For example, in the 2017-18 financial year, a total of 31,229 cases were lodged in QCAT alone, of which 16,210 were characterised as minor civil disputes. (6) One of the primary attractions of a super-tribunal lies in its focus on the resolution of a wide range of matters in a way that is 'accessible, fair, just, economical, informal and quick. (7) An outcome of this approach is affordability, with QCAT reporting that the average cost per matter in 2017-18 was just $717. (8) Moreover, super-tribunals reflect a flexible attitude to the formalities and technicalities of legal dispute resolution, such as legal representation and the rules of evidence. (9)

But what is the place of the super-tribunals in the Australian justice system? Are they courts, or not? Do such technical concerns even matter? Constitutionally, the characterisation of a body as a 'court of a State' (10) is vitally important. The primary consequence of this classification is that the capacity to exercise judicial power with respect to federal matters may only be vested in 'courts' under ch III of the Constitution. (11) Federal matters encompass not only the resolution of questions of federal law, but also the jurisdiction to determine constitutional questions, and to resolve disputes between residents of different states, and against the Commonwealth. (12) Secondly, the Kable doctrine (13) operates to grant constitutional protection to the independence, impartiality and institutional integrity of state courts, but not necessarily to other state bodies. (14)

Existing case law indicates that, despite their fundamental similarities, QCAT is a court but NCAT, VCAT and SACAT are not. The primary factor behind this distinction is the express statutory designation of QCAT as a court of record and the lack of any similar designation attaching to the other tribunals. (15) At present, the constitutional character of WASAT, ACAT, NTCAT and a host of smaller tribunals operating across Australia remains open.

This article focuses on super-tribunals on the basis of their uniquely broad and significant role in the national justice system; however, the analysis has a larger impact across all state decision-making bodies capable of being vested with judicial powers. It is important to note that the impact of ch III on the territory tribunals is particularly complex. Whilst the conclusions in this article may impact the territories, the present analysis is confined to the states. This reflects the controversial relationship between territory jurisdiction and federal jurisdiction, a field engaging not only ch III but also ss 109 and 122 of the Constitution, and to which this article could not hope to do justice. (16)

This article considers existing jurisprudence on whether a state tribunal qualifies as a 'court of a State' for the purposes of ch III, and examines its practical and doctrinal implications. In Part II, I outline the constitutional framework by which ch III creates an 'integrated national court system' (17) and explain why the identification of a tribunal as a 'court of a State' is so crucial. In Part III, I examine how federal and state courts have grappled with and resolved the question whether a tribunal is a 'court of a State', focusing on recent jurisprudence most applicable in the context of super-tribunals. In Part IV, I discuss the implications of this jurisprudence for state governments and super-tribunals around Australia. The framework that emerges from the disparate case law is incoherent in a number of respects, signalling a need for High Court intervention. Nonetheless, this article argues that state governments should consider taking the surprisingly uncomplicated step of (re)constituting their super-tribunals as courts of the state.

II CHAPTER III AND THE INTEGRATED JUDICIAL SYSTEM

Chapter III of the Constitution establishes the High Court of Australia and sets the parameters of its jurisdiction. It also lays the foundation for federal courts. Chapter III empowers the federal Parliament to create federal courts, define their jurisdiction, and determine the number of judges on those courts. (18) Those judges must, under s 72, be appointed by the Governor-General in Council on particular terms, and are only subject to removal 'by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity'.

The primary occupation of ch III is federal courts. State courts are generally the concern of state governments, just as colonial courts were the domain of the respective colonies. Thus evolved the principle that the federal government takes state courts as it finds them, (19) and the understanding that state courts are not subject to the strict separation of powers principles that emanate from the rigid federal Constitution. (20) But ch III is not silent as to the existence of state courts. Section 77(iii) empowers the federal Parliament to vest federal jurisdiction in 'any court of a State'. As a result, state courts concurrently exercise federal and state jurisdiction, giving rise to the notion of an 'integrated' Australian judicial system. (21) This part outlines the text and structure of ch III of the Constitution, focusing on its creation of an integrated national judicial system consisting of federal and state 'courts'.

Chapter III opens with a seemingly straightforward statement that has led to countless pages of consideration and reconsideration in the Commonwealth Law Reports:

The judicial power of the Commonwealth shall be vested in ... the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. (22) As to the content of federal jurisdiction, ss 75 and 76 list those 'matters' capable of forming the original jurisdiction of the High Court. Five classes of matter are constitutionally prescribed to form the original jurisdiction of the High Court. These are matters:

(i) arising under any treaty;

(ii) affecting consuls or other representatives of other countries;

(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv) between States, or between residents of different States, or between a State and a resident of another State [(the 'diversity jurisdiction')];

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth .., (23)

Federal Parliament may enlarge the scope of federal jurisdiction only in respect of matters:

(i) arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by the Parliament;

(iii) of Admiralty and maritime jurisdiction;

(iv) relating to the same subject-matter claimed under the laws of different States. (24)

Section 77 empowers federal Parliament to confer this jurisdiction on federal courts (25) and on 'any court of a State'. (26) Parliament may also define 'the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States'...