Owen v Menzies[2012] QCA 170

SUPREME COURT OF QUEENSLAND 

1. CHIEF JUSTICE: I am grateful to the President for her recitation of the history of the proceeding. 

2. As to whether the applicable provision of the Anti-Discrimination Act 1991, s 124A, infringes the implied constitutional freedom of communication about government and political matters, it is arguable that its proscription of extreme forms of objectionable acts (such as inciting hatred or serious contempt or severe ridicule) nevertheless leaves citizens sufficiently free to engage in communications about governmental and political matters, including the civil rights which should be accorded homosexuals, so that the first question posed by Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567 (as modified by Coleman v Power (2004) 220 CLR 1, 50-51) should be answered “no”:  the law does not effectively burden the relevant constitutional freedom.

3. It is also however arguable that this court would be constrained by Sunol v Collier (No 2) [2012] NSWCA 44 (para 45 per Chief Justice, and Allsop P) to find that the provision does infringe the implied constitutional freedom (Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-2), on the basis that Sunol v Collier addressed an issue indistinguishable from the present, whereas the issue in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, while similar, was not the same as here.

4. But it is not necessary for this court to take a definitive position on that issue, because any burden is incidental and reasonably appropriate and adapted, in light of both sub-sections. I agree with the views expressed by my colleagues in relation to the application in this case of the second limb of the test under Lange.

5. I agree with the President’s reasoning and conclusion that the respondent Ms Bruce has and had locus standi as an applicant before the Queensland Civil and Administrative Tribunal (“QCAT”) and its predecessor.  Critically, such legislation should be construed broadly and beneficially.  Vilification of homosexuality may amount to vilification of bisexuals insofar as the orientation of bisexuals includes a sexual inclination towards persons of their own gender.

6. I agree with the reasons of Muir JA, and His Honour’s (and the President’s) proposed answers to the questions raised for the consideration of this Court.

7. In these reasons, I address the question whether QCAT is a court of a State within the purview of Chapter III of the Commonwealth Constitution.  In a sense this is a non-issue.  If QCAT is such a court, it may exercise federal jurisdiction, including determining the constitutional validity of s 124A of the Anti-Discrimination Act.  But as explained by Muir JA, if not, it may as a tribunal exercise State jurisdiction.  In doing so, it would not be necessary for QCAT to determine the constitutional issue.  That is because this court is determining that issue, and the result of that determination is that there is no constitutional impediment to QCAT’s determining the applications before it, applying s 124A to its full effect, as QCAT would proceed to do.

8. Nevertheless, since the question whether QCAT is a court featured so prominently and extensively in the submissions made to this court, the issue warrants comprehensive exposition in this judgment.

9. The applicant contends that QCAT is not a court of a State within the meaning of Chapter III, with the consequence that the judicial power of the Commonwealth cannot have been vested in it under s 77 of the Constitution, leaving it incompetent to determine the matter of constitutional interpretation.  The respondents and the Attorney-General for the State of Queensland contend to the contrary.

10. One may begin with s 164(1) of the Queensland Civil and Administrative Tribunal Act 2009, which provides that QCAT is a “court of record”.  As observed by Kirby J in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 562, while not conclusive, that designation may constitute a “very strong consideration” in determining the true nature of the body.

11. In exercising its jurisdiction, QCAT decides controversies between the parties before it, making the “binding and authoritative” decisions which ordinarily characterize the exercise of judicial power (Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357). 

12. Counsel for the applicant referred to QCAT’s jurisdiction in relation to a “minor civil dispute”, prescribed by ss 11 and 12 of the Act, and the provision in s 13 that QCAT must make orders that it considers “fair and equitable”. Counsel submitted that QCAT was not, in this situation, necessarily obliged to apply the law, and he sought to contrast QCAT’s statutory jurisdiction with the terms in which equitable and common law jurisdiction is invested by statute in Magistrates Courts in various jurisdictions.

13. That provision did not however exclude the Tribunal’s implied obligation to make its determinations in accordance with the parties’ legal rights and obligations. In certain situations, the legislature has specified the legislation which prescribes the orders which may be made (s 13(2)(b)-(d)), itself inconsistent with a view that the Tribunal is unconstrained by the law.

14. In North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 152 Gleeson CJ referred to “[t]he fundamental importance of judicial independence and impartiality”, pointing out there is “no single ideal model of judicial independence, personal or institutional”, and that there is “room for legislative choice” in that area.  In the case of QCAT, the legislature has provided (s 162) that in exercising its jurisdiction, the Tribunal “must act independently” and that it “is not subject to direction or control by any entity, including any Minister”, which are pivotal features of a judicial process.

15. Yet notwithstanding those provisions, Counsel for the applicant submitted that a number of features combined to “sap” QCAT of the independence necessary for it to be characterized as a court. Those features, with discussion of their significance, follow.

1. Although designated as a court of record, the Tribunal “is not bound by the rules of evidence, or any practice or procedure applying to courts of record” (s 28(3)(b)).  As observed in K-Generation Pty Ltd v Liquor Licensing Court, supra, p 537, however, such provisions are “not inimical to the exercise of judicial power”, and the Tribunal would remain obliged to apply the law and rules of procedural fairness.

2. Section 126(2) of the QCAT legislation provides that the Tribunal’s “final decision” in a proceeding for a minor civil dispute does not prevent a court or other tribunal revisiting, in another proceeding, an issue considered by the Tribunal, if relevant to that other proceeding.  Counsel for the applicant referred to King v Hoare (1844) 13 M & W 494, 504; 153 ER 206, 210, as to the finality of court judgments.

Counsel for the Attorney-General referred in response to legislative provision to similar effect in other jurisdictions, in relation to Magistrates Courts for example, concerning the treatment of minor claims.  This consideration is of no substantial weight in the end.

3. The power to punish for contempt is exercisable only by the President or Deputy President of the Tribunal (s 219(5), (6)).  Counsel for the applicant advanced that limitation as telling against designating the Tribunal as a court. 

The point is answered by K-Generation v Liquor Licensing Court, supra, pp 538-9, referring to “the long history of inferior courts in Australia, extending back to the period before federation.  They may well have lacked a power [to punish for contempt] but that must have been within contemplation when s 77(iii) [of the Constitution] was formulated”. 

This Tribunal has a power to punish for contempt:  the limitation relates to those members who may exercise it.  Again, this consideration is of no substantial weight in the end.

4. Senior members and ordinary members, who account for the vast majority of the membership of the Tribunal, may be removed from office by the executive government for nothing more than inefficiency, or for conduct which would warrant dismissal from the public service. 

Section 188(1)(a)(ii) allows for the removal of a senior or ordinary member, by the Governor-in-Council on the Minister’s recommendation, for carelessness, incompetence or inefficiency.  Section 188(1)(a)(iii) provides for removal for conduct which would warrant dismissal from the public service “if the member were a public service officer”.  Counsel for the applicant offered the example of a member’s finding fault with legislation in the course of determining a matter before the Tribunal and dealing with that in published reasons:  a public servant may not comment on governmental policy unless authorized to do so.

As to removal generally, it is important to note that there is an avenue for challenge under the Judicial Review Act 1991.  The availability of the Supreme Court’s “supervisory jurisdiction” is considered a safeguard for the independence of inferior courts or tribunals (Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 82-3).

As to removal on grounds applicable to public servants, attention focused in argument on whether senior and ordinary members would thereby be rendered subject, if indirectly, to an approved “code of conduct” or “standard of practice” under the Public Sector Ethics Act 1994.  That Act provides that a “public official” is so subject (ss 11, 12D) but members of the Tribunal are expressly excluded from that designation (Schedule).  It therefore seems unlikely that s 188(1)(a)(iii) of the QCAT legislation would be construed to extend to a breach of such a code as if it applied to a member. 

5. QCAT cannot enforce its orders.  Sections 131 and 132 provide for enforcement by filing the Tribunal’s order in the Registry of “a court of competent jurisdiction”, whereupon the Tribunal’s decision “is taken to be an order of the court in which it is filed and may be enforced accordingly”.  Counsel for the applicant referred to the statement of Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead, supra, p 357 that the exercise of judicial power “does not begin until some tribunal which has power to give a binding and authoritative decision…is called upon to take action”.  Counsel relied on Attorney-General (Commonwealth) v Alinta Ltd (2008) 233 CLR 542, 599 for a contention that this circumstance is a “strong factor weighing against the characterization of [the Tribunal’s] powers as judicial”.

Yet in Brandy v Human Rights and Equal Opportunities Commission (1995) 183 CLR 245, 269 the High Court observed that it was “not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision”, and referred to the situation with courts of petty sessions, where orders for the payment of money, made in the exercise of judicial power, were enforced by a means of warrants granted independently, and administratively, by justices of the peace.

Counsel separately submitted that this provision for registration in the Supreme Court was apt to impair the institutional integrity of that court, contrary to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.  The submission is answered by a recognition that QCAT is obliged to act independently and impartially, that is, judicially.  The registration in the Supreme Court of a decision made in consequence of such a process could not imperil the perception or the reality that the Supreme Court exhibits institutional integrity.

6. The President, the Deputy President, senior members and ordinary members of the Tribunal “serve relatively short terms in office meaning that they do not enjoy security of tenure in office”, raising a perception they may need to persuade the executive government that they should be reappointed at the conclusion of their terms.

The appointment of judicial officers for fixed terms does not deny their court that character.  In Forge v Australian Securities and Investments Commission, supra, p 59 Gleeson CJ referred to the reference by Le Dain J in Valente v The Queen [1985] 2 SCR 673, 698 to “tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner”.  Other matters aside, the availability of judicial review in relation to the process of removal under the QCAT legislation ensures that protection, should it become necessary.

7. The Tribunal does not “predominantly or principally” comprise Judges.  The President and Deputy President are the only members of the Tribunal (of more than 160 members over all) whose tenure is linked to judicial office.  Counsel for the applicant referred to the observation in Forge v Australian Securities and Investments Commission, supra, p 79 that “a court, or at least the Supreme Court, of a State must principally be constituted by permanent judges”.  (See also the less qualified observation in Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 226 FLR 147, 157.)  The qualification expressed in the High Court in Forge in the words, “or at least the Supreme Court”, is significant.

Senior members and ordinary members, appointed by the Governor-in-Council for fixed terms, may only be removed from office in limited circumstances, being those specified in s 188.  They are obliged to act independently and they are not subject to any external direction or control, including by any Minister (s 162).  That they lack Act of Settlement tenure does not weigh substantially against their constituting a court, because their appointment is, in the words of Le Dain J, “secure against interference by the executive…in a discretionary or arbitrary way” (Valente v The Queen, supra, 698). 

8. Senior and ordinary members hold office on the conditions set out in their instruments of appointment (s 186).  Counsel submitted that was apt to erode perceptions of institutional independence. 

The decision of the High Court in North Australian Aboriginal Legal Service Inc v Bradley, supra, is however to the contrary:  judicial officers may hold office on such conditions consistently with the stipulation for independence and impartiality. 

9. Various powers given to the President are, it was submitted, irreconcilable with the President’s being a “proper repository of the judicial power of the Commonwealth”.  Those powers include:  the power to suspend a senior or ordinary member “with the Minister’s approval” (s 189); “managing the business of the Tribunal to ensure it operates efficiently” (s 172(2)(a)); “managing the members of the tribunal and adjudicators” (s 172(2)(c)); to decide “selection criteria for appointment of members and adjudicators” (s 72(2)(c)(iv)); to advise the Minister “about the appointment of members” (s 172(2)(e)); “advising the Minister…how the tribunal could improve the carrying out of its functions” (s 172(3)(a)); and the President must choose the members who will constitute the Tribunal for a particular matter (s 165(1)).

As to a power of suspension with the approval of the Minister, in Queensland the Governor-in-Council may only suspend a Magistrate if a Supreme Court Judge, on application by the Attorney-General, determines there is reasonable ground for believing cause for removal exists (Magistrates Act 1991, s 43).  That illustrates a situation of removal facilitated by the determination of a judicial officer.  Powers of management are regularly accorded heads of jurisdiction by statute.  Consultation between heads of jurisdiction and Attorneys-General as to appointments to courts is an established feature of the judicial landscape, as is a flow of advice from a court to the executive government in relation to ways of improving the efficiency of courts.  Finally, determining who is to constitute the Tribunal for the hearing of a matter is a purely administrative function appropriately given to the President. 

None of these features is incompatible with the President’s discharging a judicial function.

10. Counsel for the applicant relied on extra-mural statements by the President of QCAT describing it, with some emphasis, as a tribunal by contrast with a court.  Plainly, the character of QCAT falls to be determined by reference to the legislation which constitutes it.

16. There was debate before this court as to the appropriateness of a “balance sheet” type aggregation of relevant considerations, and also on judicial reflection about whether one should invoke historical considerations when assessing contemporary manifestations of institutions as courts.

17. Considerations like those should not deflect this court from an appropriately broad, overall assessment whether QCAT is to be considered as a Chapter III court.

18. It is in the end important to revert to the aspects emphasized at the outset.

19. The legislature has ordained QCAT as a court of record, and has militated independence and impartiality, hallmarks of the judicial process, as mandatory for QCAT.

20. Insofar as the actual operating conditions within the Tribunal may for argument’s sake not have been ideal in terms of judicial criteria, high authority supports the view that one need not nevertheless secure that ultimate ideal in order to justify the “court of law” characterization. Ultimately there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a “court of the State” within the meaning of the Constitution: none of the additional features tabulated for the applicant, nor their combination, excludes that conclusion.

21. Margaret McMurdo P: This is a case stated under s 216 Anti-Discrimination Act 1991 (Qld) (7138 of 2011) together with related applications (10318 of 2011 and 10868 of 2011).  The background to the case stated and the applications has some complexity.

The background

The proceeding in the Anti-Discrimination Tribunal

22. Rhonda Bruce (the applicant in 10318 of 2011 and the second respondent in 7138 of 2011) and Richelle Menzies (the applicant in 10868 of 2011 and the first respondent in 7138 of 2011)^[1] made a complaint of vilification on the ground of sexuality under s 124A Anti-Discrimination Act 1991 (Qld) against Ronald Owen, the applicant in 7138 of 2011 and the respondent in both 10318 of 2011 and 10868 of 2011. 

23. The complaint was heard by the Anti-Discrimination Tribunal (the former tribunal) which has since been replaced by the Queensland Civil and Administrative Tribunal (QCAT) with the passing of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).^[2]  Mr Owen contended that s 124A was unconstitutional.  The former tribunal determined that it was not permitted to decide that issue.^[3]  It found that Mr Owen had vilified Ms Menzies^[4] in contravention of s 124A as follows:

“

• On at least 23 August 2005 Mr Owen drove a motor vehicle on public roads displaying a sticker that read:

‘GAY RIGHTS?    UNDER GOD’S LAW THE ONLY

RIGHTS GAYS HAVE IS THE RIGHT TO DIE 

LEV.20:13’

…

• On 30 August 2005 Mr Owen provided a report to the Cooloola Shire Council tabled on 6 September 2005 which contained a number of statements that vilified homosexuals, including ‘Sodomite’s (sic) cannot reproduce, their only means of recruitment to their way of life is by preying on the children of normal human beings ...’.
• On 7 September 2005 Mr Owen participated in a television interview broadcast on Channel 7 in which he stated:

‘I think it is a very perverse lifestyle. ... Can our health services cope with the sodomite’s epidemic? ... As you have prisoners who break the law lose certain rights and I do believe homosexuals lose rights. ... I think that they know they are going to die shortly I mean AIDS is pretty prevalent.’

…

• In mid to late 2005 Mr Owen caused a letter written by him to be published on the website lockstockandbarrel.org entitled ‘No Human Rights For Non-Humans’ which included a number of statements vilifying homosexuals, including ‘Any person who commits acts that no ignorant animal would commit declares war on his community, and therefore may be destroyed by any or all of that community ...’”^[5]

24. On 19 September 2008, the former tribunal ordered that Mr Owen pay Ms Menzies $5,000.^[6]  It also ordered that Mr Owen publish an apology to the successful complainants in the Gympie Times.  It dismissed Ms Bruce’s complaint of vilification.  Although the former tribunal accepted that she felt offended and disturbed by Mr Owen’s statement,^[7] it determined that she had no standing as a bisexual person to bring the complaint.^[8]  On 27 November 2008, it ordered Mr Owen to pay half the costs of Ms Menzies.^[9] 

The appeals before Douglas J

25. Mr Owen appealed to the Trial Division of the Supreme Court against the former tribunal’s orders of 19 September 2008 (BS No 10395 of 2008) and against the costs orders of 27 November 2008 (BS No 100 of 2009). Ms Bruce appealed to the Trial Division of the Supreme Court against the former tribunal’s order dismissing her complaint (BS No 10478 of 2008). As the appeals of Ms Bruce and Mr Owen were instituted prior to and not finally dealt with before the QCAT Act came into operation, the Supreme Court must continue to hear and decide the appeals as if the Anti-Discrimination Act was still in force as it was before the QCAT Act.^[10]

26. Mr Owen’s appeals (BS No 10395 of 2008 and BS No 100 of 2009) were heard by Douglas J on 16 September 2010.^[11]  Mr Owen had issued notices under s 78B Judiciary Act 1903 (Cth) to the Commonwealth and State Attorneys-General,^[12] but none wished to appear.^[13]  His Honour summarised Mr Owen’s constitutional arguments in this way.  He contended that s 124A was invalid.  The former tribunal was not capable of exercising the judicial power of the Commonwealth in determining that issue.  The former tribunal’s orders had been made without a determination of the constitutional arguments.  The filing of those orders in the Supreme Court under s 212 Anti-Discrimination Act was unconstitutional.  Accordingly, Mr Owen argued, the former tribunal’s order should be set aside.^[14] 

27. His Honour noted that the respondents to Mr Owen’s appeals did not submit that his constitutional arguments were incapable of triggering an exercise of the judicial power of the Commonwealth. The respondents also accepted that the former tribunal was not a court of a State as that term is used in s 77(iii) of the Constitution.^[15] 

28. Douglas J reached the following conclusions. The decision of the New South Wales Court of Appeal in Attorney-General (NSW) v 2UE Sydney Pty Ltd^[16] was factually similar.^[17]  The former tribunal’s orders were registered in the Supreme Court of Queensland under s 212 Anti-Discrimination Act.  This made the otherwise permissible action of the former tribunal’s consideration and interpretation of constitutional arguments an impermissible exercise of federal jurisdiction.^[18]  As the former tribunal had determined the case without reference to the constitutional issues raised by Mr Owen, its binding orders effectively determined those issues against him, without considering the arguments and without a court with appropriate jurisdiction considering them.^[19]  The former tribunal should have referred the issues arising under the Constitution to the Supreme Court for determination under s 216 Anti-Discrimination Act.^[20] 

29. Accordingly, in Mr Owen’s appeals Douglas J set aside the decision and orders of the former tribunal and sent the matter to QCAT for referral back to the Court of Appeal Division of the Supreme Court under s 118 QCAT Act for determination of the constitutional arguments.  Once the Court of Appeal determined those issues, QCAT would apply that determination to the case.  There would then be an issue estoppel binding the parties arising from the adjudication of a Chapter III (Ch III) court under the Constitution.^[21] 

The case stated

30. As Douglas J anticipated, on 4 March 2011 a senior member of QCAT stated the following case to the Supreme Court of Queensland under s 216 Anti-Discrimination Act: 

"1. Were the proceedings in the Anti-Discrimination Tribunal an impermissible exercise by the tribunal of the judicial power of the Commonwealth under Chapter III of the Commonwealth Constitution?

2. Is section 212 of the Anti-Discrimination Act 1991, providing for the registration and enforcement of orders of the Anti-Discrimination Tribunal, inconsistent with Chapter III of the Commonwealth Constitution, and therefore invalid, so far as it purports to apply in these proceedings?
3. Is section 124A of the Anti-Discrimination Act 1991 inconsistent with the implied protection of freedom of political communication provided by the Commonwealth Constitution and therefore invalid?
4. Alternatively, to what extent is section 124A of the Anti-Discrimination Act 1991 to be read down in order to comply with the implied protection of freedom of political communication provided by the Commonwealth Constitution?
5. Does a bisexual person have standing under section 134(1)(a) of the Anti-Discrimination Act 1991 to complain about vilification on the ground of homosexuality?”^[22]

31. Mr Owen filed and served the case stated in the Supreme Court and successfully applied in the Court of Appeal on 6 September 2011 to transfer the case stated from the Trial Division to the Court of Appeal (7138 of 2011).^[23] 

32. As the case stated raised constitutional issues, supplementary notices pursuant to s 78B Judiciary Act 1903 (Cth) were served on the Commonwealth and State Attorneys-General.  Only the Queensland Attorney-General chose to intervene under s 78A Judiciary Act.

33. During the hearing of the present matters, counsel for the Attorney-General submitted that questions 1 and 2 of the case stated do not address the apposite issues. If the Supreme Court decides to remit a decision of the former tribunal to QCAT, QCAT must deal with the matter under the Anti-Discrimination Act as if that Act was still in force as it was prior to the enactment of the QCAT Act.^[24]  In doing so, although QCAT has only the functions of the Anti-Discrimination Tribunal^[25] and can make only decisions which the former tribunal could have made,^[26] it is exercising QCAT’s jurisdiction under the QCAT Act.  It follows that to ask in question 1 whether the former tribunal would have impermissibly exercised federal jurisdiction by hearing and determining the complaints of vilification against Mr Owen is not the same as asking whether QCAT would impermissibly exercise federal jurisdiction by hearing and determining the complaints.  It is the latter question which is now relevant.

34. Similarly in terms of question 2, s 212 Anti-Discrimination Act only applies to the registration of a decision by the former tribunal.  A decision of QCAT made exercising the functions of the former tribunal remains a decision of QCAT; it is not a decision of the former tribunal.  QCAT’s decisions may be enforced through Pt 7 Div 4 (ss 129–132) of the QCAT Act.  It is the validity of those provisions and not s 212 Anti-Discrimination Act that are now in issue.

35. As a result, counsel for Mr Owen and counsel for Ms Menzies and Ms Bruce, without conceding that questions 1 and 2 in the case stated are deficient, sought to amend the case stated to include the following questions:

"1A. Are the proceedings in the Queensland Civil and Administrative Tribunal an impermissible exercise by the Tribunal of the judicial power of the Commonwealth under Chapter III of the Commonwealth Constitution?

2A. Are sections 131 and 132 of the Queensland Civil and Administrative Tribunal Act 2009, which provide for the registration and enforcement of orders of the Queensland Civil and Administrative Tribunal, inconsistent with Chapter III of the Commonwealth Constitution, and therefore invalid, so far as they purport to apply in these proceedings?”

36. Counsel for the Queensland Attorney-General did not support the amendment of the case stated. He submitted it was sufficient for this Court to consider the following three issues in addressing the case stated. The first is whether Ch III of the Constitution prohibits QCAT from hearing and determining the complaint against Mr Owen under s 124A Anti-Discrimination Act.  The second is whether s 124A infringes the implied constitutional freedom of political communication.  The third is whether a bisexual person can have standing under s 134(1)(a) Anti-Discrimination Act to complain about vilification on the ground of homosexuality. 

37. It does not seem that further supplementary notices containing the proposed questions 1A and 2A were served on the Commonwealth and State Attorneys, other than the Queensland Attorney. Despite the deficiencies in questions 1 and 2, the three issues identified by counsel for the Attorney-General adequately encompass all the issues intended to be raised in the case stated. In these circumstances, I would refuse the application for leave to amend the case stated by adding questions 1A and 2A.  I will instead address the three questions identified by the Attorney-General.

Ms Bruce’s application

38. As Ms Bruce’s appeal in the Trial Division (SC No 10478 of 2008) from the former tribunal’s dismissal of her complaint raised the same question of law as the fifth question in the case stated, she has applied to have her appeal removed from the Trial Division to the Court of Appeal under s 68(5) Supreme Court of Queensland Act 1991 (Qld) (10318 of 2011).^[27] 

Ms Menzies’s application

39. Ms Menzies seeks an extension of time within which to appeal from Douglas J’s orders on the same ground as the first issue raised in the case stated. She contends that she did not file an appeal within time against Douglas J’s orders as she initially considered that the substantive legal issues would be determined in the way anticipated by his Honour. Later her lawyers became apprehensive that, in the absence of an appeal, Douglas J’s orders may give rise to an issue estoppel preventing the Court of Appeal from reconsidering the constitutional point decided by his Honour. She contends that her appeal would allow this Court to set aside Douglas J’s orders, avoiding the need for the complaint of vilification to be remitted to QCAT for further determination. This, she submits, would more efficiently resolve the issues in her dispute with Mr Owen.

Mr Owen’s request for declarations

40. Mr Owen submits that in addition to answering the questions in the case stated, this Court should, under s 118(4) QCAT Act, declare that the former tribunal was not constitutionally competent to hear and decide the complaint against him or, alternatively, declare that in the event of him being found to have contravened the Anti-Discrimination Act, Ms Bruce and Ms Menzies are not permitted to register and enforce any orders of the former tribunal against Mr Owen under s 131 and s 132 QCAT Act.

41. I will deal in turn with each of the three issues raised in the case stated.

Does Ch III of the Constitution prohibit QCAT from hearing and determining the complaint against Mr Owen under s 124A Anti-Discrimination Act?

Mr Owen’s contentions

42. Mr Owen contends that QCAT and the former tribunal are and were prohibited from determining whether s 124A Anti-Discrimination Act was unconstitutional because this involves an exercise of federal jurisdiction which they are prohibited from exercising.  Neither QCAT nor the former tribunal is a court of a State within the meaning of that term in s 77(iii) of the Constitution.^[28]  They are therefore incapable of being vested with the judicial power of the Commonwealth under Ch III.  Alternatively, he argues that if QCAT and the former tribunal are courts of a State under s 77(iii), then the principle discussed in Kable v Director of Public Prosecutions (NSW)^[29] applies.  This has the result that they lack the institutional integrity and impartiality required of a court exercising the judicial power of the Commonwealth and cannot exercise it. 

Is QCAT a court of a State under s 77(iii) Constitution?

43. As I have explained,^[30] because the former tribunal’s functions have been subsumed by QCAT, it is only QCAT’s authority to exercise federal jurisdiction which is now relevant. 

44. In order to determine if QCAT is a court of a State under s 77(iii), it is necessary to understand the scheme of Ch III. Its general scheme was identified by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers’ Society of Australia.^[31]  It institutes a coherent, integrated federal scheme under which federal courts can be established and courts of States are capable of being invested with the judicial power of the Commonwealth under s 77(iii) whilst also exercising State judicial power.  If there is a conflict between Commonwealth and State laws, the Constitution’s covering cl 5 and s 109 ensure the Commonwealth law prevails. 

45. It follows that if QCAT is a court of a State under s 77(iii), by way of s 39(2) Judiciary Act,^[32] it is capable of being invested with and exercising the judicial power of the Commonwealth, including exercising federal jurisdiction under s 76(i) of the Constitution^[33] in determining the constitutionality of s 124A.  That conclusion is subject to the proviso, established in Kable, that State courts capable of exercising federal jurisdiction under s 77(iii) must have institutional independence and impartiality.

46. The issues relied upon by Mr Owen as demonstrating that QCAT is not a court of a State under s 77(iii) may well have been sufficient in combination to prevent a comparable federal body from exercising federal jurisdiction under Ch III: see Re Adams and Tax Agents’ Board^[34] and Brandy v Human Rights and Equal Opportunity Commission.^[35]  But in terms of the integrated federal justice system established by Ch III, there is a critical distinction between federal courts to which  s 72 of the Constitution^[36] applies and a court of a State vested with federal jurisdiction under s 77(iii).  The separation of judicial and executive power is not a constitutional requirement of all courts at State level,^[37] although I note that in Queensland the separation of powers insofar as Supreme and District Court judges are concerned is impliedly acknowledged in Ch 4 Constitution of Queensland 2001 (Qld).  Chapter III gives recognition to the principle that the organisation of State courts is a matter for State legislatures.  But Ch III permits the investing of federal jurisdiction under s 77(iii) only on a body which is a court in the sense of the meaning of that word in the Constitution.^[38] 

47. The New South Wales Court of Appeal in Trust Co of Australia Ltd v Skiwing Pty Ltd,^[39] applied in 2UE Sydney^[40] and in the more recent decision of Sunol v Collier (No 1),^[41] held that the New South Wales equivalent of the former tribunal is not a court of a State under s 77(iii).  Unless these cases can be distinguished from the present case on some proper factual basis or they are plainly wrong, this Court is bound by them:  Farah Constructions Pty Ltd v Say-Dee Pty Ltd.^[42]

48. But the question here is not whether the former tribunal is a court of a State under s 77(iii), but whether QCAT is.  The answer to whether a tribunal like QCAT is a court of a State under s 77(iii) will depend on the many applicable factors.  The New South Wales Administrative Decisions Tribunal^[43] differed, at least in one critical respect, from QCAT in that QCAT is a court of record: see s 164 QCAT Act.  This in itself is a compelling factor in favour of finding that QCAT is a court of a State when it determines complaints under s 124A and makes decisions of the former tribunal in matters remitted to it under the QCAT Act’s transitional provisions.^[44]  It may explain why the New South Wales Attorney-General in 2UE Sydney and more recently in Sunol (No 1) contended that the New South Wales tribunal was not a court of a State under s 77(iii), whereas in the present case the Queensland Attorney-General has contended that QCAT is a court of State under s 77(iii).  The fact that QCAT is a court of record provides a sound reason for this Court to distinguish 2UE Sydney, Sunol (No 1) and Commonwealth v Anti-Discrimination Tribunal (Tasmania) from the present case. 

49. Despite QCAT’s nomenclature as a tribunal and the many other matters raised by Mr Owen, the following factors in combination persuade me that it is a Queensland court, albeit an inferior court of summary jurisdiction.  First, as already noted, QCAT is a court of record.  Second, it is an independent tribunal resolving disputes between parties.^[45]  Its independence is not jeopardised solely because the majority of its judicial officers are part-time and do not have the same financial security or security of tenure enjoyed by Queensland magistrates and District and Supreme Court judges: North Australian Aboriginal Legal Aid Service Inc v Bradley.^[46]  Third, QCAT’s decisions bind the parties^[47] and are enforceable.^[48]  The fact that the enforcement of QCAT decisions turns on the filing of material in another court^[49] does not mandate that QCAT is not exercising judicial power: see Brandy^[50] and Attorney-General (Cth) v Alinta.^[51] QCAT hearings are ordinarily in public^[52] and it must give reasons for its decisions.^[53]  Its decisions as a court of summary jurisdiction are subject to appeal^[54] and to the Supreme Court’s supervisory and appellate jurisdiction. 

50. It is true that the majority of members of QCAT are not called judges. In Skiwing,^[55] Spigelman CJ (Hodgson and Bryson JJA agreeing), noted that: “One aspect of a court of law is that it is comprised, probably exclusively although it is sufficient to say predominantly, of judges.”^[56]  But this concept of what constitutes a court becomes a ‘chicken and egg’ argument as it raises the question of what is a judge.  The Magistrates Courts of Australian States and Territories are presided over by magistrates, not judges, but there is no doubt that Magistrates Courts are courts of a State under s 77(iii).^[57]  At the time of federation, Magistrates Courts were commonly constituted by justices of the peace who for the most part were not legally qualified.  Indeed, justices of the peace can still constitute a Magistrates Court in Queensland for limited purposes.^[58]  The fact that many QCAT members determining disputes are not called judges, or may not even be legally qualified, does not mean it is not a court. 

51. Mr Owen also places emphasis on the observations of Gummow, Hayne and Crennan JJ in Forge^[59] that a court must be principally constituted by permanent judges whereas most QCAT members are part-time and with limited tenure.  But their Honours in Forge qualified those comments as applying to the Supreme Court of a State.  They were made in the context of considering the constitutionality of acting judicial appointments to the Supreme Court of a State, not in the context of whether a State tribunal like QCAT was a court of a State for the purposes of s 77(iii).  The fact that the majority of QCAT members are part-time with limited tenure does not preclude QCAT from being a court of a State under s 77(iii).

52. For these reasons, as well as those of the Chief Justice, I consider QCAT is a court of a State for the purposes of s 77(iii), albeit one of summary jurisdiction. This conclusion marries with the obvious legislative intention, inferred from Ch III and s 39(2) Judiciary Act, to establish a practical and functional federal scheme whereby State courts can exercise delegated federal judicial power concurrently with their State judicial power. 

Does QCAT offend the Kable principle?

53. I turn now to Mr Owen’s alternative contention in his Ch III argument, that even if QCAT is a court of a State, it offends the Kable principle and cannot exercise federal jurisdiction.  As I have explained, Ch III leaves for the States to determine the form and makeup of their own courts, but always subject to the Kable principle which requires that, to exercise federal jurisdiction under s 77(iii), State courts must have institutional independence and impartiality.  That principle does not prohibit State legislatures from conferring judicial and administrative functions on a State court such as QCAT even though a federal court established under Ch III of the Constitution could not exercise administrative functions.^[60]  The fact that QCAT exercises both judicial and non-judicial functions does not mean it offends the Kable principle.  Magistrates Courts also undertake administrative functions, for example, committing defendants on serious criminal charges for trial and sentence in the District and Supreme Courts, or in extradition proceedings.^[61]  Indeed, the Supreme Court of Queensland may arguably be undertaking administrative functions in its decision making under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld), but this does not amount to a breach of the Kable principle as it did not impair the Supreme Court’s institutional integrity in such a way as to be incompatible with the Court’s constitutional position as a repository of federal judicial power: see Fardon v Attorney-General (Qld).^[62]  Mr Owen has not demonstrated that any of QCAT’s administrative functions are such as to compromise its institutional independence and integrity. 

54. It is true that QCAT does not enforce its own decisions but files them with supporting affidavit material in other State courts for enforcement. There are sound economic reasons for a State legislature to decide not to duplicate existing judicial enforcement procedures when establishing a summary court like QCAT. The enforcement provisions in Pt 7 Div 4 (ss 129–132) QCAT Act do not amount to a mere executive requirement on the Queensland Supreme, District or Magistrates Courts to enforce QCAT decisions.  The use of the word “may” throughout those provisions shows that the Supreme, District and Magistrates Courts could refuse to enforce a decision of QCAT in appropriate circumstances, for example, where the decision was obtained by fraud.  QCAT is independent and impartial.^[63]  In terms of the International Covenant on Civil and Political Rights^[64] Art 14(1), a litigant like Mr Owen against whom a complaint under s 124A is brought, is entitled under the QCAT Act to “a fair and public hearing by a competent, independent and impartial tribunal established by law”.^[65]  QCAT’s independence and impartiality is safeguarded by the appellate^[66] and supervisory jurisdiction of the Supreme Court.  As a court of a State under s 77(iii), QCAT is subject to the Kable principle.  But the fact that QCAT does not enforce its own decisions, which have been made independently, impartially and fairly and are subject to the appellate and supervisory jurisdiction of the Supreme Court, but instead files them with supporting material in other courts for their consideration for enforcement (QCAT Act ss 129–132) does not interfere with its institutional independence so as to infringe the Kable principle.  This conclusion appears consistent with the statement by Deane, Dawson, Gaudron and McHugh JJ in Brandy that “it is not essential to the exercise of judicial power that [a] tribunal should be called upon to execute its own decision”.^[67] 

55. It follows that in my view QCAT, as a court of a State which does not offend the Kable principle, by way of s 77(iii) Constitution and s 39(2) Judiciary Act, can determine issues such as whether s 124A Anti-Discrimination Act is unconstitutional in the exercise of federal judicial power under s 76(i) Constitution, whilst concurrently exercising its State judicial power under the QCAT Act.

2UE Sydney and Sunol (No 1)

56. I appreciate this construction of Ch III is inconsistent with that taken by the New South Wales Court of Appeal in Skiwing, 2UE Sydney and Sunol (No 1).  But as I have explained, there are sound reasons for distinguishing the present case which concerns QCAT, a court of record, from the New South Wales Administrative Decisions Tribunal, which is not.  The principle, stated by the High Court in Farah Construction v Say-Dee Pty Ltd which requires intermediate appellate courts to follow the reasoning of other intermediate appellate courts on uniform legislation, does not apply here.  In the circumstances of this case, I feel constrained to distinguish Skiwing, 2UE Sydney and Sunol (No 1). I take a different construction of Ch III based on my finding that QCAT is a court of a State under s 77(iii) and my understanding of High Court authority concerning, and the terms of, Ch III. 

57. I receive some comfort in this bold step from Heerey J’s decision in Commonwealth v Wood.^[68]  I also note that the 2UE Sydney approach has been questioned by learned commentators including the Hon Duncan Kerr SC, MP (as his Honour then was).^[69] 

58. I emphasize the distinction in Ch III between federal courts to which s 72 applies and a court of a State which is vested with federal jurisdiction under s 77(iii). I also emphasize the use of the word “may” throughout ss 129–132 QCAT Act so that the filing of QCAT decisions and supporting materials in the Supreme, District and Magistrates Courts does not require those Courts to undertake executive action.  These provisions are in stark contrast to s 82 and s 114 Administrative Decisions Tribunal Act 1997 (NSW) which applied in 2UE Sydney^[70] and, it may be accepted,  in Skiwing^[71] and Sunol (No 1).^[72]

59. The reasoning in 2UE Sydney pivots on Jacob J’s observations in Commonwealth v Queensland.^[73]  The principal judgment in that case was given by Gibbs J (as his Honour then was) with whom Barwick CJ, Stephen and Mason JJ agreed.  Only McTiernan J was in substantial agreement with Jacobs J.  Jacobs J made those observations in a context very different to the present.  With respect, I do not consider Jacob J’s observations in those circumstances provide a persuasive platform from which to construe “court of a State” in s 77(iii).  This is especially so in light of the clearly intended purpose of Ch III, namely, to establish a functional judicial system amongst a federation of established States with extant judicial systems.

60. In my opinion, the construction of Ch III adopted in Skiwing, 2UE Sydney^[74] and Sunol (No 1)^[75] and urged upon us by Mr Owen would have undesirable consequences, unlikely to have been intended by those who drafted Ch III.  It would mean that an independent and impartial State court like QCAT, set up to be accessible, fair, just, economical, informal and quick^[76] in an open and accountable way^[77] and upon which no non-judicial functions infringing the Kable principle have been conferred, could not determine federal constitutional law intermingled with and directly relevant to its exercise of State judicial power.^[78]  In the context of the present case, this would mean that any person the subject of a complaint under s 124A could thwart the jurisdiction of QCAT simply by raising a constitutional issue, no matter how unmeritorious.  I also receive some comfort in taking this construction of Ch III by the fact it is consistent with the approach presently adopted in construing broadly comparable constitutional provisions in the federations of the United States of America^[79] and in Canada.^[80]

61. It follows that in my view QCAT is a court of a State under s 77(iii) and, by way of s 39(2) Judiciary Act, has the power both to hear and determine whether s 124A offended the Constitution and the complaint against Mr Owen remitted to it under the transitional provisions of the QCAT Act.

Is s 124A Anti-Discrimination Act inconsistent with the implied freedom of political communication under the Constitution?

62. Mr Owen contends s 124A is inconsistent with the implied freedom of political communication under the Constitution.  In discussing that contention it is necessary to understand the scheme of the Anti-Discrimination Act and to construe s 124A so as to determine if and how it might fetter that freedom.^[81]

The scheme of the Anti-Discrimination Act

63. The full title to the Anti-Discrimination Act is “An Act to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.”

64. The preamble to the Anti-Discrimination Act includes:

“Parliament’s reasons for enacting this Act are—

1. The international community has long recognised the need to protect and preserve the principles of dignity and equality for everyone.
2. This is reflected in a number of international human rights instruments that the Commonwealth has ratified, including—

…

• the International Covenant on Civil and Political Rights^[82]

…

3. The Parliament is supportive of the Commonwealth’s ratification of these international instruments.
4. In fulfilling its obligations under these international instruments the Commonwealth has enacted certain human rights legislation.
5. The Parliament is satisfied that there is a need—
   1. to extend the Commonwealth legislation; and
   2. to apply anti-discrimination law consistently throughout the State; and
   3. to ensure that determinations of unlawful conduct are enforceable in the courts of law.
6. The Parliament considers that—
   1. everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and
   2. the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and
   3. the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.
7. It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by the Act, for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.”

65. The Act’s anti-discrimination purpose and how it is to be achieved is set out in s 6 which relevantly provides:

1. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, … .

2. This purpose is to be achieved by—

…

2. allowing a complaint to be made under chapter 7 against the person who has unlawfully discriminated; and
3. using the agencies and procedures established under chapter 7 to deal with the complaint.”

66. Chapter 4 is headed “Associated objectionable conduct (complaint)” and relevantly provides:

“Part 1Act’s freedom from associated objectionable conduct purpose

121Act’s freedom from associated objectionable conduct purpose and how it is to be achieved

1. One of the purposes of the Act is to promote equality of opportunity for everyone by prohibiting certain objectionable conduct that is inconsistent with the other purposes of the Act.
2. This purpose is to be achieved by—
   1. prohibiting certain conduct; and
   2. allowing a complaint to be made under chapter 7 against a person who has engaged in that conduct; and
   3. using the agencies and procedures established under chapter 7 to deal with the complaint.

…”

67. The impugned provision is also contained in Chapter 4:

“Part 4Racial and religious vilification

124AVilification on grounds of race, religion, sexuality or gender identity unlawful

1. A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
2. Subsection (1) does not make unlawful—
   1. the publication of a fair report of a public act mentioned in subsection (1); or
   2. the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or
   3. a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”

68. Also relevant is s 4A:

1. A public act includes—
   1. any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and
   2. any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.

2. Despite anything in subsection (1), a public act does not include the distribution or dissemination of any matter by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter.”

Mr Owen’s contentions

69. Mr Owen contends that s 124A is either wholly invalid or should be read down to exclude conduct such as Mr Owen’s which is protected by the implied constitutional freedom of political communication. Section 124A effectively burdens freedom of communication about government or political matters in its terms, operation and effect. The statutory prohibition in s 124A is not reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. He submits that s 124A does not properly account for Mr Owen’s political communication of his views regarding the rights of homosexual persons in the community.  The section is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government.  This Court should read down s 124A to exclude conduct like Mr Owen’s which is in furtherance of political communication. 

Conclusion as to whether s 124A is unconstitutional

70. The High Court first set out the test for determining the validity of a statutory provision which is contended to impermissibly burden the implied freedom of political communication in Lange v Australian Broadcasting Corporation^[83] subsequently refining it in Coleman v Power;^[84] more recently unanimously restating it in Hogan v Hinch;^[85] and most recently applying it in Wotton v State of Queensland.^[86]  Adopting that test in the present case, the first question is whether, in its terms, operation or effect, s 124A effectively burdens freedom of communication about government or political matters.  If it does not, it is not unconstitutional.  If it does burden the freedom, the second question is whether s 124A is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. 

71. In answering the first question, the observations of Hayne J in APLA Ltd v Legal Services Commissioner (New South Wales);^[87] Kirby J in Australian Broadcasting Corporation v O'Neill;^[88] and Heydon J^[89] and Kiefel J^[90] in Wotton are pertinent.  The implied freedom is not an individual right but a limitation on legislative power.  Determining whether s 124A burdens the constitutional freedom of communication about government or political matters involves a consideration as to how s 124A may affect the freedom generally. 

72. Section 124A^[91] does not seek to prevent or burden public discussion on race, religion, sexuality or gender identity.  But it does, subject to the matters set out in s 124A(2), make unlawful those public acts (as broadly defined in s 4A^[92]) inciting hatred towards, serious contempt for or severe ridicule of others on the ground of their sexuality.  In this respect, s 124A is more limited in the terms of its proscription and can be distinguished from the legislation under consideration in Coleman v Power, Hogan v Hinch and Wotton.  Section 124A should be construed as a whole and in the context of the scheme of the Act.  Reading s 124A(1) and (2) together, I would construe the provision as not burdening the freedom of communication about government or political matters under the first limb of the Lange test.  In fact, I consider the terms of s 124A set parameters to enhance communications about government and political matters in a civilised, diverse democracy which values all its members, irrespective of race, religion, sexuality or gender identity.

73. It is true, as Mr Owen submits, that insult and invective can be legitimate forms of political communication protected by the implied freedom.^[93]  But simply because a statement contains insult and invective does not mean it relates to government or political matters.  Insult and invective can be an effective form of legitimate political and government communication without, in the terms of s 124A, inciting hatred towards, serious contempt for, or severe ridicule of others on the ground of their race, religion, sexuality or gender identity.  I cannot see that the incitement of hatred towards, serious contempt for, or severe ridicule of others on the grounds of race, religion, sexuality or gender can amount to political and government communication of the kind contemplated by the implied freedom under a diverse, modern democracy.

74. This conclusion is consistent with that reached by the Victorian Court of Appeal (Nettle, Ashley and Neave JJA) in Catch the Fire Ministries v Islamic Council of Victoria Inc.^[94]  In that case, the court considered statutory provisions comparable to s 124A which prohibited conduct inciting hatred against, serious contempt for, or revulsion or severe ridicule of persons on the ground of religious belief.^[95]  Their Honours also concluded that, even if wrong on that question, in terms of the second question in the Lange test the provision was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.^[96]

75. More recently in Sunol v Collier (No 2),^[97] the majority of the New South Wales Court of Appeal (Bathurst CJ and Allsop P, Basten JA dissenting) determined that s 49ZT Anti-Discrimination Act 1977 (NSW),^[98] (a comparable provision to s 124A) regardless of the context of the alleged vilification, does effectively burden freedom of communication about government or political matters either in its terms, operation or effect.^[99]  But all three judges, agreed that, in terms of the second question in the Lange test, s 49ZT was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of our constitutional system of government.^[100]  Their Honours were referred to Catch the Fire Ministries but Bathurst CJ and Allsop P, whilst not stating the decision was plainly wrong, clearly did not feel constrained by Farah v Say-Dee Pty Ltd to follow it.^[101]

76. There are therefore presently conflicting approaches taken by respected State appellate courts as to the construction of provisions comparable to each other and to s 124A. It follows that this Court must make up its own mind in construing s 124A, after giving careful consideration to the diverging views of both courts. I prefer the view of the Victorian Court of Appeal and Basten JA’s minority view in Sunol (No 2).  For the reasons I have given, I consider that s 124A does not, in its terms, operation or effect, effectively burden freedom of communication about government or political matters.

77. If I am wrong, it is necessary to consider the second question in the Lange test.  I am in no doubt that s 124A is a provision reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.  That end is the promotion of equality of opportunity for all members of the community by prohibiting objectionable conduct inconsistent with the purposes of the Act^[102] and the Queensland Parliament’s desire to improve the quality of democratic life through an educated community appreciative and respectful of the dignity and worth of all its members.^[103] 

78. The Queensland legislature’s intention to reasonably balance that legitimate end with the implied constitutional freedom of communication is clearly manifested in s 124A(2)(c) which states that s 124A(1) does not make unlawful “a public act, done reasonably and in good faith, for [various] purposes, including public discussion or debate about, and expositions of, any act or matter”.  A “public act” includes any form of communication to the public.^[104]  The exemption in s 124A(2)(c) ensures that s 124A provides a reasonably appropriate balance between, and is adapted to address the tension between, on the one hand, the legitimate end of promoting equality of opportunity for everyone by prohibiting specified objectionable conduct in Queensland^[105] and, on the other, Queenslanders’ constitutional right to freedom of communication about government and political matters.

79. This conclusion is consistent with that reached in both Catch the Fire Ministries and Sunol (No 2).  I also note that, in resolving a similar tension between the implied constitutional freedom of communication and a comparable provision in the Racial Discrimination Act 1975 (Cth),^[106] Hely J in Jones v Scully^[107] and the Full Federal Court in Toben v Jones^[108] reached a similar conclusion. 

80. I do not consider that s 124A, read as a whole and in context, effectively burdens the implied constitutional freedom of communication about government or political matters. If it does, s 124A(2)(c) ensures that s 124A is reasonably appropriate and adopted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. Section 124A is not inconsistent with the implied protection of freedom or political communication under the Constitution.

81. It follows that the answer to question 3 in the case stated is “No”. The answer to question 4 is “It is unnecessary to read down s 124A in order to comply with the implied protections of freedom of political communication provided by the Commonwealth Constitution”.

Can a bisexual person have standing under s 134(1)(a) Anti-Discrimination Act to complain about vilification on the ground of homosexuality?

82. Section 134 Anti-Discrimination Act relevantly provides that a person who is subjected to an alleged contravention of the Anti-Discrimination Act may complain.

83. The former tribunal reasoned as follows. Ms Bruce identified as a person of bisexual orientation.^[109]  She did not have standing to bring a complaint as Mr Owen’s conduct was in the nature of “hatred of, serious contempt for or severe ridicule of, homosexuals”.^[110]  The expression “sexuality” in s 124A(1) is defined in the Anti-Discrimination Act in a way which distinguishes between heterosexuality, homosexuality and bisexuality.  The word “homosexuality” has the dictionary definition of “sexual feeling for a person of the same sex”.  Mr Owen’s incitement was on the basis of the sexuality of homosexuals.  Although Ms Bruce considered herself to be a part of the Gympie homosexual community and she felt offended and disturbed by Mr Owen’s statements, as a bisexual she was not a person who, under  s 134(1)(a), was subjected to the alleged contravention and her complaint must be dismissed.^[111]

84. Ms Bruce and the Attorney-General contend that this construction is wrong and that she has standing. Mr Owen supports the construction adopted by the former tribunal. He points out that s 124A(1) refers to “sexuality”; that term is defined as “heterosexuality, homosexuality or bisexuality”;^[112] and he emphasizes the use of the disjunctive “or”.  He argues that this has the effect that only homosexuals could complain about vilification of homosexuals. 

85. The legislature intended that the Anti-Discrimination Act benefit those sections of the community who are perceived to be unfairly discriminated against, sexually harassed and subjected to associated objectionable conduct.  So much is obvious from the full title to the Act; the preamble; the Act’s anti-discrimination purpose and how it is to be achieved;^[113] and the Act’s freedom from associated objectionable conduct purpose and how it is to be achieved.^[114]  Courts have a special responsibility to take account of and give effect to that statutory purpose when construing legislation which has a beneficial purpose and protects or enforces human rights: Waters v Public Transport Corporation^[115] and IW v City of Perth.^[116]  This Court should adopt a broad construction of s 124A in favour of those intended to benefit from it.

86. The expressions “homosexuality” and “bisexuality” as used in the definition of the term “sexuality” in s 124A^[117] are not defined in the Anti-Discrimination Act.  The Macquarie Dictionary^[118] defines bisexuality as “attraction to both males and females as sexual partners” and homosexuality as “sexual feeling for a person of the same sex”.  The former tribunal found that Mr Owen’s public acts in contravention of s 124A(1)^[119] were directed against homosexuals.  But an essential aspect of bisexuality is a sexual feeling for a person of the same sex, that is, homosexuality.  It follows that vilification of homosexuals is also vilification of bisexuals at least where, like Ms Bruce, the bisexual person identifies with homosexuals. 

87. For these reasons, I consider the former tribunal erred in finding that, because Ms Bruce was bisexual, she could not have standing under s 134(1)(a) to bring her complaint against Mr Owen for his vilification of homosexuals.  A bisexual person can have standing under s 134(1)(a) to complain about vilification on the ground of homosexuality. 

88. But that does not mean that question 5 in the case stated should be answered affirmatively. The question is in the most general of terms. Whether a bisexual person, or indeed a heterosexual or a homosexual person has standing under s 134(1)(a) to complain about vilification on the ground of homosexuality will depend on the circumstances of the alleged vilification in each case.  For example, if a person vilifies only male homosexuals contrary to s 124A, a homosexual woman and a bisexual woman may not have standing to bring a complaint under s 134(1)(a).  It follows that question 5 in the case stated should be answered “Depending on the circumstances, a bisexual person may have standing under s 134(1)(a) of the Anti-Discrimination Act to complain about vilification on the ground of homosexuality”. 

Summary and Conclusion

89. The application for leave to amend the case stated is refused.

90. The Anti-Discrimination Tribunal has been replaced by QCAT. For the reasons I have given in [33] and [34], it is unnecessary to decide the first two questions in the case stated.  But Ch III of the Constitution does not prohibit QCAT from hearing and determining complaints such as those brought against Mr Owen under s 124A and from determining the constitutionality of s 124A.  Nor is Pt 7 Div 4 (ss 129–132) QCAT Act invalid as inconsistent with Ch III. 

91. Question 1 in the case stated:

“Were the proceedings in the Anti-Discrimination Tribunal an impermissible exercise by the tribunal of the judicial power of the Commonwealth under Chapter III of the Commonwealth Constitution?”

should be answered:

“Unnecessary to decide”.

92. Question 2 in the case stated:

“Is section 212 of the Anti-Discrimination Act 1991,providing for the registration and enforcement of orders of the Anti-Discrimination Tribunal, inconsistent with Chapter III of the Commonwealth Constitution, and therefore invalid, so far as it purports to apply in these proceedings?”

should be answered:

“Unnecessary to decide”.

93. Question 3 in the case stated:

“Is section 124A of the Anti-Discrimination Act 1991 inconsistent with the implied protection of freedom of political communication provided by the Commonwealth Constitution and therefore invalid?”

should be answered:

“No”.

94. Question 4 in the case stated:

“Alternatively, to what extent is section 124A of the Anti-Discrimination Act 1991 to be read down in order to comply with the implied protection of freedom of political communication provided by the Commonwealth Constitution?”

should be answered:

“It is unnecessary to read down s 124A in order to comply with the implied protections of freedom of political communication provided by the Commonwealth Constitution”.

95. Ms Bruce has standing as a bisexual person under s 134(1)(a) to complain about Mr Owen’s alleged vilification on the grounds of homosexuality.  But question 5 in the case stated:

“Does a bisexual person have standing under section 134(1)(a) of the Anti-Discrimination Act 1991 to complain about vilification on the ground of homosexuality?”

should be answered:

“Depending on the circumstances, a bisexual person may have standing under s 134(1)(a) of the Anti-Discrimination Act to complain about vilification on the ground of homosexuality”. 

96. Douglas J set aside the decision and orders of the former tribunal and referred them to QCAT. It is appropriate for QCAT to now deal with those complaints against Mr Owen, including Ms Bruce’s.  Ms Bruce’s application to remove her appeal from the Trial Division to the Court of Appeal should be refused. 

97. As Ms Menzies’s complaint will now be determined by QCAT, her application for an extension of time to appeal from Douglas J’s orders should also be refused.

98. I have found that QCAT is not prohibited from hearing and determining complaints under s 124A Anti-Discrimination Act and matters of the former tribunal remitted to it under the transitional provisions of the QCAT Act.  It follows that the further declarations sought by Mr Owen under s 118(4) QCAT Act should not be given.

99. The Court will receive submissions as to the costs of the appeal hearing in accordance with Practice Direction No 2 of 2010, para [52].

100. MUIR JA:

The issues for determination

The central issues for determination by this Court are whether:

Does QCAT have jurisdiction to hear and determine the constitutional issues if it is not a Ch III court?

“decision, of a former tribunal or court, includes an order made or direction given by the former tribunal or court.”

“…whether or not Ch III of the Constitution and/or s 39 of the Judiciary Act have the effect that the appeal panel is precluded from considering the constitutional immunity for political speech in the course of interpreting the Anti-Discrimination Act, in the light of the directive of the New South Wales Parliament contained in s 31 of the Interpretation Act.”

“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.”

“Federal 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.

…it does not follow [from the fact that the Tribunal is not a Chapter III court] 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’. 

If 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.”^[134]

“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.”^[136]

“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.”^[138]

“…

“216Supreme Court opinion

In Felton v Mulligan,Barwick CJ relevantly said:

“… the jurisdiction invested in the Supreme Court by the Judiciary Act may be attracted by the defence raised to the applicant’s claim for relief.  If it is, the jurisdiction which is exercised by the Supreme Court throughout the case will be federal, that is to say, part of the jurisdiction invested in the Supreme Court by the Judiciary Act, unless perhaps there is some completely disparate claim constituting in substance a separate proceeding.  In this connexion, I agree with my brother Walsh’s analysis of the case law and with his view of the opinions expressed in the decided cases to which he refers.  I further agree with the view that if federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had.  In my opinion, s 109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court.”^[142] (emphasis added)

“A State court receives State jurisdiction under the constitution and laws of that State.  It may also be invested with federal jurisdiction by a law made by the Parliament under s 77(iii) of the Constitution; s 39(2) of the Judiciary Act 1903 (Cth) is an example of such a law.  The federal courts established by the Parliament, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court, exercise their jurisdiction, necessarily federal, by reason of its conferral by laws enacted under s 77(i) of the Constitution.  A “matter” in respect of which that jurisdiction is conferred may, in a given case, include claims arising under common law or under the statute law of a State.  But the jurisdiction invoked remains, in respect of all of the claims made in the matter, “wholly” federal; even in a State court ‘there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had’ and ‘there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court’.  These terms were used by Barwick CJ in Felton v Mulligan.” (citations omitted)

“The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.”

“It follows that neither the Tribunal nor the Board can give a definitive answer to the question of constitutional validity.  It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question.  An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law.  It is incapable of adding to or subtracting from any authority, or purported authority, conferred by the challenged statute.  It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative body.

…

An administrative body with limited authority is bound, of course, to observe those limits.  Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct.  In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority.  The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.”^[149]

These expressions of principle have been referred to with approval or applied elsewhere.

“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.

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.”

“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.  Thus, s 25ZAB purports to prescribe what the Constitution does not permit.”

“There is ample legislative precedent at the State and federal level for providing, if stipulated conditions be satisfied, for the registration of foreign judgments in State Supreme Courts and in the Federal Court with the effect they would have if given in those courts and entered on the day of registration.  The functions performed by courts of federal jurisdiction under such laws of the Commonwealth or the States are not incompatible with the exercise of the judicial power of the Commonwealth by those courts.  The reasoning in Kable might be applicable where, for example, legislation of a State obliged its Supreme Court to enforce as if it were its own judgment an executive or legislative determination of a nature which was at odds with the fundamentals of the judicial process.”

“The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court’s capacity to exercise federal jurisdiction impartially and according to federal law.  State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation.  State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust.  Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.”

The validity of s 124A of the Anti-Discrimination Act

156. I have concluded that s 124A of the Anti-Discrimination Act is “reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”.^[168]Consequently I have not found it necessary to decide whether the section effectively burdened freedom of communication about government or political matters either in its terms, operation or effect.^[169]

157. If the first limb of the test propounded in Lange v Australian Broadcasting Corporation^[170] is engaged by s 124A, the second limb, modified by Coleman v Power, is engaged for the reasons given by the President and because:

• Section 124A only incidentally restricts the subject freedom of communication;

• any such restriction is confined and controlled by s 124A(2);

• the implied freedom is not absolute or equivalent to licence, and laws which do no more than promote or protect (relevant) communications or those who participate in the prescribed system will not be impermissible.^[171]  As Deane J expressed it in Cunliffe v The Commonwealth,^[172] “… the Constitution’s implication of freedom of political communication and discussion is not an implication of an absolute or uncontrolled licence to say or write anything at all in the course of communication or discussion of political matters.  It is an implication of freedom under the law of an ordered society”.

Answers to the questions in the case stated

The first respondent’s application for an extension of time within which to appeal against the decision of Douglas J and the second respondent’s application to remove to this Court her appeal against the decision of the Anti-Discrimination Tribunal dismissing her complaint

Costs