Federal Jurisdiction in State Tribunals – Citta Hobart Pty Ltd v Cawthorn

Legal prohibitions on discrimination in Australia are almost exclusively the province of the statute. Consequently, there are overlapping statutory regimes. Beyond the Commonwealth enactments prohibiting discrimination on specific grounds, there are also independent State and Territory general anti-discrimination statutes across the country. While substantially similar in terms of structure, these legislative regimes differ in substance. Such comparisons are evidenced in the precise grounds of discrimination that can be relied upon, and defences that are available to the alleged discriminator.

It has long been speculated that the differences between State and Territory anti-discrimination enactments and the Commonwealth enactments might result in portions of the non-Commonwealth legislation being read down or severed because of inconsistencies between the regimes for section 109 of the Australian Constitution. In Citta Hobart Pty Ltd v Cawthorn, the consequence of there being a possible inconsistency between the relevant state legislation and the Commonwealth legislation was different, but at least as significant. As will be explained, the relevant state anti-discrimination tribunal was found to lack jurisdiction to hear the matter or to resolve the inconsistency between the state and federal acts.

The complainant, Mr Cawthorn (‘Cawthorn’), alleged before the Tasmanian Anti-Discrimination Tribunal (‘the Tribunal’) that the respondent, Citta Hobart Pty Ltd (‘Citta’), had discriminated against him in the design of its Parliament Square development to be built in central Hobart. Under the design, a particular entrance to the development would only be accessible by a staircase. Cawthorn, who had paraplegia and relied on a wheelchair for mobility, contended that this constituted both direct and indirect discrimination against him based on disability under the Anti-Discrimination Act 1998 (Tas) (‘the Tasmanian Act’).

As part of its defence, Citta contended that there was an inconsistency, in the sense understood by section 109 of the Constitution, between relevant provisions of the Tasmanian Act, and the Commonwealth Disability Discrimination Act 1992 (Cth) (‘the DDA’). It argued that section 34 of the DDA contained a defence, not present in the Tasmanian Act, which preserved an “area of liberty” upon which the Tasmanian law should not infringe (of which Citta could avail itself).

The Tribunal accepted Citta’s position when it argued that by the federal defence being invoked, the “determination of the whole matter involve[d] the exercise of federal adjudicative authority”. The Tasmanian Tribunal concluded it did not have jurisdiction to hear the matter. This was because Citta’s reliance on section 109 of the Constitution had the consequence that the proceeding before the Anti-Discrimination Tribunal involved a “matter” for each of sections 76(i) and 76(ii) of the Constitution – respectively, a matter “arising under th[e] Constitution or involving its interpretation” and a matter “arising under any laws made by the Parliament”. Since the Tribunal was not “a court of a State” for section 77(iii) of the Constitution, it could not be vested with, or exercise, federal jurisdiction. Accordingly, the Tribunal accepted that it lacked the jurisdiction to hear the claim (and so, necessarily, Cawthorn’s claim could not be successful).

Cawthorn appealed the matter successfully to the Supreme Court of Tasmania. The court considered the Constitutional defence on its merits, rejected it, and remitted the matter to the Tribunal for hearing and determination.

Citta then successfully appealed that decision to the High Court of Australia.

The High Court held unanimously (although with Edelman J providing a concurring judgment) that the Tribunal did not have jurisdiction to hear the matter. Like the Tribunal itself, the Court held that the Tribunal was “not a court of a State”, and so did not have the power to hear a matter for sections 76(i) or (ii) of the Constitution. The High Court also emphasised that, where the invalidity or inoperability of State law is asserted under the section 109 inconsistency provision, “the assertion operates to characterise the totality of the justiciable controversy”.

Significantly, the Court stated that for a party’s reliance on a Commonwealth law or the Constitution to give rise to a “matter” in the relevant sense, it is necessary only that “the claim or defence give rise to an issue capable of judicial determination”. The “prospects of success of a legally coherent claim or defence” play no role in the relevant assessment.

Finally, the High Court held that the Tribunal had jurisdiction to determine, whether, in turn, it would have jurisdiction for “the hearing and determination of a particular claim…”. However, the Tribunal’s determination in this regard was not “conclusive”.

Thankfully, the High Court’s decision in Citta Hobart Pty Ltd v Cawthorn will not hinder future claims brought under the Victorian Equal Opportunity Act 2010 (Vic). Such claims can be made directly to the Victorian Civil and Administrative Tribunal and, under the amendments made to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in 2021, the Victorian Magistrates’ Court – which is a court of a State, and so can hear claims involving federal jurisdiction – has jurisdiction to hear claims that could have been brought before VCAT but for their “federal subject matter”.