Witthahn v Wakefield[2025] QSC 164

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The first, second and third plaintiffs bring a claim as representative parties under Part 13A of the Civil Proceedings Act 2011 (Qld) (the CP Act).  The plaintiffs sue as representatives of persons who were employed by the Queensland Ambulance Service (QAS).
2. [2]
   In January 2022, the QAS made certain directions that its employees were to receive doses of the COVID-19 vaccine.  Some of those employees failed to comply with those directions during the COVID-19 pandemic.
3. [3]
   Martin SJA declared that the directions were of no effect.^[1] 
4. [4]
   On behalf of themselves and the group members, the plaintiffs seek relief under the Industrial Relations Act 2016 (Qld) (the IR Act) in the current proceedings in the form of:

   1. damages for misfeasance in public office by the first and second defendants;
   2. damages for breach of contract;
   3. pursuant to s 314 of the IR Act, s 11 of the CP Act or the court’s inherent power:
      1. (i)
         orders for reinstatement, including as to their rank and standing in the QAS;
      1. (ii)
         orders for payment of compensation;
      1. (iii)
         orders for payment of lost remuneration;
      1. (iv)
         orders to maintain continuity of employment;
      1. (v)
         orders to maintain continuity of service;
      1. (vi)
         such other orders as the court might think fit to remedy the effect of alleged contraventions under ss 285 and 289 of the IR Act; and
   4. payment of civil penalties pursuant to s 574 of the IR Act arising in respect of the alleged contraventions of ss 285 and 289 of the IR Act.
5. [5]
   The defendants filed a conditional notice of intention to defend and, on 23 December 2024, filed an application that challenged the jurisdiction of this court to hear the plaintiffs’ claims.  That application sought orders^[2] that:

   1. pursuant to r 16(g) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and s 103K(1)(b) and (e) of the CP Act the proceeding be stayed;
   2. in the alternative to the order above, pursuant to r 16(i) and/or r 171 of the UCPR:
      1. (i)
         in the claim, the relief sought by reference to the IR Act be struck out;
      1. (ii)
         in the statement of claim certain identified paragraphs be struck out, being [102]-[153] and [174]-[180];
   3. if the order in subparagraph (b) above is made, pursuant to rr 16(g) or (i) of the UCPR and s 103K(1)(b) or (e) of the CP Act, that part of the plaintiffs’ claim that is not struck out, be stayed pending determination of the matters over which the QIRC has exclusive jurisdiction; and
   4. costs.

6. [6]
   In truth, the only relief pressed was subparagraph (a).

7. [7]
   Briefly stated, the defendants contend that the Supreme Court of Queensland cannot entertain the plaintiffs’ claim on the basis that the Queensland Industrial Relations Commission (QIRC) is the proper forum for the dispute because:

   1. the QIRC has jurisdiction to “hear and decide all questions” relating to “industrial matter[s]”;^[3]
   2. the subject matter of the plaintiffs’ case is an “industrial matter”; and
   3. the QIRC’s jurisdiction is “exclusive of the jurisdiction of the Supreme Court”.^[4]
8. [8]
   Against that, the plaintiffs contend that there is a justiciable controversy of a federal matter that engages the judicial power of the Commonwealth. It therefore can be heard by the Supreme Court invested with federal jurisdiction,^[5] but cannot be heard by the QIRC which does not have jurisdiction because, the plaintiffs contend, it is not a “court of a State” in which federal jurisdiction can be invested.^[6] 
9. [9]
   For the reasons which follow, the defendants’ application is successful, and the proceedings will be stayed.

Federal Jurisdiction of State Courts

10. [10]
    Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court, in Federal Courts as the Parliament creates, and “… in such other courts as it invests with federal jurisdiction.”
11. [11]
    Section 75 and 76 of the Constitution sets out the original jurisdiction, and the additional jurisdiction, of the High Court and provides:

“75.Original jurisdiction of High Court

In all matters:

(i)arising under any treaty;

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

3. in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

4. between States, or between residents of different States, or between a State and a resident of another State;

5. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

76.Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

1. 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.”

12. [12]
    Section 75(iv) therefore has three component parts. The first component part provides that the High Court’s original jurisdiction might arise where there is a matter in a “State versus State” context.  The second component part comprises matters between residents of different States, sometimes referred to as the “resident versus resident” component.  The third component part is where a matter arises between a State and resident of another State sometimes referred to as a “resident versus State” dispute.
13. [13]
    The plaintiffs contend that this proceeding falls within the third component part of s 75(iv), being a “resident versus State” dispute.
14. [14]
    The defendants argued the matter on the basis that they apprehended the plaintiffs contended the case fell, primarily, within the second component being “resident versus resident”. However, the plaintiffs accepted that, on current authority,^[7] the matter could not fall within that jurisdiction, and confined their argument to the “resident versus State” component. While the plaintiffs reserved their right to argue, on appeal, that that authority ought to be revisited, and overturned, that is not a matter for this court. I proceed therefore on the basis that that plaintiffs’ argument was confined to the “resident versus State” component of s 75(iv).
15. [15]
    Section 77 of the Constitution then sets out the power to define jurisdiction:

“77Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

1. defining the jurisdiction of any federal court other than the High Court;

2. defining 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;

3. investing any court of a State with federal jurisdiction.”

16. [16]
    The matters in which the High Court has exclusive jurisdiction are contained in s 38 of the Judiciary Act 1903 (Cth):

“38Matters in which jurisdiction of High Court exclusive

Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

1. matters arising directly under any treaty;

2. suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

3. suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;

4. suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;

5. matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.

Note:Under the Jurisdiction of Courts (Cross-vesting) Act 1987, State Supreme Courts are, with some exceptions and limitations, invested with the same civil jurisdiction as the Federal Court has, including jurisdiction under section 39B of this Act.”

17. [17]
    Section 39 of the Judiciary Act then provides for the federal jurisdiction of State Courts in other matters as follows:

“39 Federal jurisdiction of State Courts in other matters

1. The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.

2. The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions:

1. A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

Special leave to appeal from decisions of State Courts though State law prohibits appeal

3. The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.”

18. [18]
    Accordingly, a “court of a State” can be invested with jurisdiction to hear any federal matter.  If so invested, s 79 of the Judiciary Act then provides that the laws of each State or Territory, including laws relating to procedure, evidence and the competency of witnesses, shall (except as otherwise provided by the Constitution or the laws of the Commonwealth) be binding on all courts exercising federal jurisdiction in that State or Territory. Conversely, a body that is not a “court of a State” within the meaning of s 77(iii) of the Constitution, cannot be invested with federal jurisdiction.

“Resident versus State” dispute

19. [19]
    The diversity jurisdiction describes a ground for invoking the original jurisdiction of the High Court under s 75(iv) of the Constitution on the basis of the existence of an actual or substantive controversy between States, residents of different States, or between a resident of a State and another State.
20. [20]
    Here, the plaintiffs contend that this proceeding falls within the third component part of s 75(iv) of the Constitution because the dispute arises between the resident (the first plaintiff) of one State (here New South Wales) and the State of Queensland.  In form alone, the proceeding seems to fall within the third component of s 75(iv), the State being the third defendant, and the plaintiffs contend that that is enough to invoke federal jurisdiction. In the alternative, the plaintiffs submit that in substance the dispute is one in which a resident of another State (New South Wales) brings a proceeding against the first and second defendants who are sued by reason of their conduct in carrying out official functions on behalf of the State. As such, it is submitted it is a case against the State of Queensland “…against which…or at whose expense it is resisted.”^[8]  
21. [21]
    In Crouch’s case, David Crouch commenced an action in the High Court against the Commissioner for Railways (Queensland) and the State of Queensland.  Crouch alleged he was a resident of Western Australia.  Whilst much of the case is taken up with the determination of whether or not the Commissioner for Railways was, for all intents and purposes, the State of Queensland, relevantly the case is a case between a resident of a State (Western Australia) and another State (Queensland).  Crouch’s case concentrated less on the full force of the word “between” where it appeared in s 75(iv) of the Constitution (“between a State and a resident of another State”), as had been the emphasis in earlier cases,^[9] and placed greater emphasis on the meaning of the word “matter” in s 75.  The majority^[10] concluded that it was now established that the word “matter” in s 75 of the Constitution is not synonymous with a legal proceeding, but rather the word focuses attention upon the substance of the dispute.  It is therefore a word of wide connotation and:

“… The consequence is that the question whether a particular ‘matter’ lies within the original jurisdiction of the Court under s. 75(iv) as a matter ‘[b]etween States’ or as a matter ‘between State and a resident of another State’ falls to be determined by reference to the substantial subject matter of the controversy and not by reference only to the form in which the legal proceedings involving it happen to be framed.  That this is so accords well with what would appear to be the rationale of the relevant conferral of original jurisdiction by s. 75(iv), namely, that justiciable disputes between States or between a State and a resident of another State should be amenable to the jurisdiction of the principal court of the federation.  In a context where the established method of proceeding against one or other of the federating colonies was by an action against a person named as a nominal defendant … it can scarcely have been the intention of the framers of the Constitution that the original jurisdiction of the Court in relation to a matter of dispute between States or between a State and a resident of another State should be determined according to whether a State sued or was sued in its own name as a party or whether an appropriate State Minister, officer or instrumentality or a nominal defendant sued or was sued on its behalf.”^[11]

(my underlining)

22. [22]
    The plaintiffs contend that this court ought to find that where the matter is properly a matter between a resident of a State and another State, it is a matter within federal jurisdiction. The plaintiff relies, in particular, upon the words of Gibbs CJ in Crouch’s case:

“In the light of these authorities it should be concluded that the words ‘a State’ in s. 75(iv) are wide enough to include an agency or instrumentality of a State. Elsewhere in the Constitution, when ‘State’ is used to refer to a polity, rather than to a geographical area, it appears to be used in that wide sense: see, e.g., ss. 78, 109 and 114. In general, a constitutional provision conferring jurisdiction should not be given a narrow construction. It is true that if the only object of the conferral of federal jurisdiction in matters between a State and a resident of another State had been ‘to avoid partiality, or the suspicion of partiality’ (Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 778), there would have been little or no justification for the provision. However, there were reasons of procedural convenience for giving the High Court competence to entertain proceedings to which the States were parties, and the status of the disputants might have been regarded as sufficient reason to confer original jurisdiction on the High Court in matters between States. In any case, I have already indicated that the Court should not give a restricted meaning to a constitutional provision of this kind simply because it thought it inconvenient. There seems to me no sufficient reason why the words ‘a State’ in s. 75(iv) should not be given the wide meaning which they are capable of bearing.”^[12]

(my underlining)

23. [23]
    In AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,^[13] Gleeson J observed:

“[110]Section 77(i) of the Constitution provides that ‘[w]ith respect to any of the matters mentioned in the last two sections [ie, the heads of jurisdiction in ss 75 and 76] the Parliament may make laws … defining the jurisdiction of any federal court other than the High Court’. The concept of ‘matter’ as picked up in s 77(i), and which has the same meaning when used throughout Ch III of the Constitution, was explained by Griffith CJ as the ‘widest term to denote controversies which might come before a Court of Justice’. It has been held to mean the ‘subject matter for determination’ independent of the precise legal proceedings, and encompasses all claims within the scope of such a controversy, whether federal or non-federal in nature.

   [111]As Kiefel CJ, Gordon and Steward JJ observe, there are two key aspects to the concept of a ‘matter’, which were confirmed by the plurality in CGU Insurance Ltd v Blakeley and reiterated in Hobart International Airport Pty Ltd v Clarence City Council. The first aspect concerns the subject matter of the dispute. For federal jurisdiction, the subject matter must be defined by reference to the heads of jurisdiction in either s 75 or s 76 of the Constitution. This aspect of ‘matter’ was not in contest in this case: the Commonwealth parties’ appeals to the Full Court involved relevant subject matter, namely, a matter in which a writ of mandamus was sought against an officer of the Commonwealth and arising under laws made by the Commonwealth Parliament.

   [112]The second aspect, discussed below, concerns ‘the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy’. The identification of a ‘justiciable controversy’ ensures that the court will not purport to exercise judicial power ‘divorced from any attempt to administer that law’.”

(footnotes omitted and my underlining)

24. [24]
    The passage of the majority referred to by Gleeson J above at [111] was that of Kiefel CJ, Gordon and Steward JJ where “matter” was described in similar terms:

“[31] It is well established that a “matter” does not mean a legal proceeding between parties or a bare description of a subject matter that falls within a head of federal judicial power in ss 75 and 76 of the Constitution (31). Rather, “matter” has two elements: “the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy” (32)….”

(footnotes omitted)

25. [25]
    Approached in that way, the court would look past the form in which the legal proceedings is framed, and rather would consider “the substantial subject matter of the controversy”.  Here, all the group members were employed, as at 11 September 2021, by the first defendant.  They allege that they were subject to directions, policies, mandates and instructions that imposed conditions on their employment, including the directions in relation to vaccination.  As a consequence of their failure or refusal to comply with those types of directions, they were, variously, placed on special leave, stood down, given a Show Cause Notice, the subject of disciplinary action and terminated.  As a consequence, they allege that they lost income, overtime, penalty rates, superannuation and other leave entitlements.  They claim to have not been entitled to the same career progression that they would otherwise have been entitled to.  The IR Act is referenced extensively in the statement of claim in terms of both the plaintiffs’ rights, and the relief sought.  Whilst there are other aspects to the case, such as misfeasance in public office, the complaints nevertheless arise out of the plaintiffs’ terms of employment.  In my view, “the substantial subject matter of the controversy” is industrial. There is not, on its face, anything that invokes a deeper need for the exercise of federal jurisdiction in the sense that a resident from New South Wales can point to the subject matter of the controversy and suggest he was treated differently because of his residence in that State.
26. [26]
    If I were to look to the substance of the dispute therefore, it seems to me I would conclude that the “matter” does not fall within the “resident versus State” component of s 75(iv) of the Constitution.
27. [27]
    However the plaintiffs submit I am bound by Crouch’s case to conclude that this is a proceeding within the “resident versus State” component of s 75(iv), both in form, brought by a resident (of New South Wales) against a State (the third defendant), and in substance, because the first and second defendants are sued by reason of their conduct in carrying out official functions on behalf of the State.
28. [28]
    The defendants also contend I am bound by Crouch’s case, but to reach the opposite conclusion, that it is the substance of the controversy into which I must enquire, ignoring, in effect, the mere form of the proceeding.
29. [29]
    Ultimately, I conclude I am bound to follow the majority in Crouch’s case and conclude that the “matter” does not fall within the “resident versus State” component of s 75(iv) of the Constitution when proper attention is given to the substance of the matter.
30. [30]
    The defendants submit that that conclusion is enough to have the application decided in their favour – the diversity jurisdiction not being engaged, the QIRC has jurisdiction over the subject matter. The plaintiffs however submit there is an alternative means to invoke federal jurisdiction.

An alternative means to invoke federal jurisdiction?

31. [31]
    The alternative arguments raised by the plaintiffs centre around ss 448 and 450 of the IR Act which sections require that part or all of the matter must be heard in the exclusive jurisdiction of the QIRC. Having found against the plaintiffs in relation to there being a justiciable dispute engaging the judicial power of the Commonwealth, there remain, effectively, three such arguments.
32. [32]
    The first is that the plaintiffs submit there is a genuinely raised argument that the QIRC is not a “court of the State” within the meaning of Ch III of the Constitution and is not therefore a body capable of being invested with the judicial power of the Commonwealth. That being arguable for the reasons I set out below at [36] to [79], the plaintiffs submit, it is sufficient to characterise the matter as falling within s 76 of the Constitution as one arising under the Constitution or involving its interpretation.^[14]
33. [33]
    The second, and related argument, is that s 450 IR Act only renders exclusive such jurisdiction that is actually conferred upon it. Not being a “court of a State,” no matter in federal jurisdiction could ever be conferred upon it.
34. [34]
    The third is a s 109 of the Constitution argument, that s 450 of the IR Act is inconsistent with ss 39 and 58 of the Judiciary Act.
35. [35]
    I deal with each below.

What is a “court of a State”?

36. [36]
    The question of whether the QIRC is a “court of a State” within the meaning of s 77(iii) of the Constitution arises for consideration because, if it is, it could be invested with federal jurisdiction to decide a matter between a State and a resident of another State, if there were one.
37. [37]
    The plaintiffs contend that the QIRC is not a “court of a State” within the meaning of Chapter III of the Constitution, with the consequence that the judicial power of the Commonwealth could not be vested in it under s 77 of the Constitution.  The defendants contend to the contrary.
38. [38]
    The parties agree that some of the earlier cases undertook a “balance sheet” approach to the determination of whether a court was a “court of a State”, such that this court would weigh the specific legislative provisions for and against a court or tribunal being a “court of a State”.^[15] 
39. [39]
    In Orellana-Fuentes v Standard Knitting Mills Pty Ltd,^[16] the New South Wales Court of Appeal considered whether the Workers Compensation Commission of New South Wales was a court within the meaning of s 77(iii) of the Constitution.  In doing so, the court identified those matters, and provisions of the establishing legislation, which were consistent with the Commission being a court.  They included factors such as the fact that the President had to be a judge of a court of record, and the Deputy President had to be, or have been, a judicial officer or a legal practitioner of at least five years standing.  Additionally, the Commission had power to compel appearances of parties at conferences and hearing, power to require persons to give evidence on oath, and the constituting legislation confers on persons appearing before the Commission on behalf of parties the same protection and immunity as a practising legal practitioner.
40. [40]
    However, the New South Wales Court of Appeal considered that there were many provisions that showed that the Commission was not a court, including that the registrar and arbitrators of the court could be appointed by the President, and that such persons could either be legal practitioners or have “such qualifications, skills or experience as may be determined by the Minister”.^[17]  Accordingly, they did not have to be legally qualified in circumstances where it is customary for members of a court to be so qualified.  Furthermore, the New South Wales Court of Appeal took into account that the Commission could exercise the functions of an arbitrator or mediator which would be an unusual feature of a judicial officer’s work.  Members of the Commission did not have security of tenure and did not have to take a judicial oath.  Proceedings did not have to be conducted by way of a hearing but could be conducted by way of a conference.  The New South Wales Court of Appeal concluded:

“[52] While the Commission has some of the powers and trappings of a court, the cumulative effect of the matters that indicate that it is not a court is extremely powerful.  In my opinion, these matters compel the conclusion that the Commission is not a court.”

41. [41]
    A similar approach had been adopted elsewhere,^[18] leading to the “balance sheet” approach description.
42. [42]
    In Owen v Menzies,^[19] the Chief Justice questioned the utility of such an approach, when considering whether the Queensland Civil and Administrative Tribunal (QCAT) was a “court of a State” holding:

“[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 such 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 Ch III court.

  [18] It is in the end important to revert to the aspects emphasised at the outset.

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

43. [43]
    In Owen v Menzies, notwithstanding that the court eschewed the “balance sheet” approach, the Queensland Court of Appeal still considered a range of features as ones either in favour of, or against, the proposition that QCAT was a “court of a State”.  In favour of the proposition that it was so, the Court of Appeal relied upon:^[20]

    1. that QCAT was a court of record, was a “very strong consideration” in determining the true nature of the body;^[21]
    2. that in exercising its jurisdiction, QCAT decided controversies between parties before it, making “binding and authoritative” decisions which ordinarily characterised the exercise of judicial power;
    3. that QCAT decisions bind the parties^[22] and were enforceable;^[23] and
    4. that QCAT hearings were held in public, and reasons for its decisions must be given.^[24]
44. [44]
    Against the proposition that QCAT was a “court of a State” were the following:^[25]

    1. that QCAT’s jurisdiction was in relation to “minor civil disputes”;^[26]
    2. that QCAT was required to make orders that it considered “fair and equitable” rather than necessarily obliged to apply the law;
    3. that QCAT was not bound by rules of evidence or any of the usual practice and procedures that applied to a court of record;
    4. that the power to punish for contempt was exercisable only by the President or Deputy President, but not by members of the tribunal;
    5. that members of QCAT had no security of tenure in contrast to other judicial officers; and
    6. that many members of QCAT were not required to hold legal qualifications.
45. [45]
    Before me, the parties proceeded on the basis that to determine whether a body such as the QIRC was a “court of a State” now focussed more squarely on notions of independence and impartiality rather than the “balance sheet” approach.
46. [46]
    In contrast to the position adopted by the Queensland Court of Appeal in Owen v Menzies, the New South Wales Court of Appeal in Attorney General (NSW) v Gatsby,^[27] concluded that the NSW equivalent of QCAT (i.e. NCAT) was not a “court of a State”.  In distinguishing Owen v Menzies, on the basis that QCAT was expressly designated in its establishing legislation as a “court of record” the New South Wales Court of Appeal placed particular emphasis on:

    1. first, the institutional integrity, that the tribunal must be, and appear to be, an independent and impartial tribunal;^[28]
    2. second, that a “court of a State” does not have to be solely constituted by judges with the same terms of appointment as s 72 of the Constitution provides for judges of Federal Courts;^[29] and
    3. third, that the fact that a tribunal has some of the “trappings” or “features” of a court does not necessarily mean it is a “court of a State” for the purposes of Chapter III of the Constitution.^[30] 
47. [47]
    Although not embracing the “balance sheet” approach, the New South Wales Court of Appeal particularly took into account that NCAT was not a tribunal composed predominantly of judges, but many of its members were non-lawyers or lawyers with only part-time appointments.^[31]  Of equal, if not greater, importance was the absence of security of tenure for members of the tribunal.^[32]
48. [48]
    In Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group),^[33] the Victorian Court of Appeal declined to follow Owen v Menzies and concluded that the Victorian equivalent to QCAT (i.e. VCAT) was not a “court of a State” within the meaning of Chapter III of the Constitution capable of exercising federal judicial power.  There, the Victorian Court of Appeal concluded that the answer to the question would turn on an examination of the body’s constitutive legislation, considered in light of its history, constitutional convention, and institutional and governmental relationships.^[34] 
49. [49]
    In North Australian Aboriginal Legal Service Inc v Bradley,^[35] the High Court observed that it could be accepted that there is no single, ideal model that satisfies the constitutional requirement that a court capable of exercising the judicial power of the Commonwealth be, and appear to be, impartial and independent.^[36]
50. [50]
    In Forge v ASIC,^[37] Gleeson CJ said:

“[41] It follows from the terms of Ch III that State Supreme Courts must continue to answer to the description of ‘courts’.  For a body to answer to the description of a court it must satisfy minimum requirements of independence and impartiality.  That is a stable principle, founded on the text of the Constitution ...

…

[43] Judicial independence and impartiality is secured by a combination of institutional arrangements and safeguards …”

51. [51]
    Gummow, Hayne and Crennan JJ in Forge also considered what is meant by the word “courts” in s 71 of the Constitution and s 77(iii) in the expression “any court of a State”.^[38]  The majority observed that it was neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court,^[39] but their Honours agreed at [64]:

“Essential to that system is the conduct of trial by an independent and impartial tribunal.”

52. [52]
    Their Honours went on to stress the importance of both the fact and appearance of institutional independence and impartiality.^[40]
53. [53]
    Whilst it can be accepted that “[i]ndependence and impartiality are defining characteristics of all of the courts of the Australian judicial system”,^[41] it is not possible to create an exhaustive statement of what constitutes the minimum standard in all cases. As was said by Bathurst CJ in Gatsby’s case,^[42] the fact that a Tribunal (or in this case, Commission) has some of the “trappings” or features of a court does not necessarily mean it is a “court of a State” for the purposes of Chapter III of the Constitution.^[43]  His Honour referred to the decision of Spigelman CJ in Trust Company of Australia Ltd v Skiwing Pty Ltd,^[44] which itself referred to the statement of Lord Sankey in Shell Company of Australia Ltd v Federal Commissioner of Taxation:^[45]

“The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not courts in the strict sense of exercising judicial power. … In that connection it may be useful to enumerate some negative propositions on this subject: (1) a tribunal is not necessarily a court in this strict sense because it gives a final decision; (2) nor because it hears witnesses on oath; (3) nor because two or more contending parties appear before it between whom it has to decide; (4) nor because it gives decisions which affect the rights of subjects; (5) nor because there is an appeal to a Court; (6) nor because it is a body to which a matter is referred by another body.”

54. [54]
    Spigelman CJ went on at [52]:

“In order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law … One aspect of a court of law is that it is comprised, probably exclusively although it is sufficient to say, predominantly, of judges.”

55. [55]
    So, whilst it remains difficult to define all the characteristics of a “court of a State” for the purpose of Chapter III of the Constitution, I accept that the irreducible minimum is independence and impartiality.^[46] But it also remains that much of the analysis of that minimum nevertheless requires a consideration of the powers and functions of the body and the nature of the constitutional or legislative institutional arrangements and safeguards for securing that independence and impartiality.^[47]

Is the QIRC a “court of a State”?

56. [56]
    The question of whether the QIRC is a “court of a State” for the purposes of Chapter III of the Constitution does not appear to have been previously determined in this court.  The question was raised but not decided in the Australian Workers’ Union of Employees (Qld) v Queensland.^[48] 
57. [57]
    I am not bound to follow Owen v Menzies, the Court of Appeal there considering QCAT not the QIRC, although plainly the reasoning ought to be persuasive. And while the focus on independence and impartiality is critical, the assessment of those qualities, is at least informed, in my view, by an examination of the body’s constitutive legislation in the way described by the Victorian Court of Appeal in Meringnage.
58. [58]
    A significant factor in favour of the QIRC being a “court of a State” is that under s 429 of the IR Act it is established as a court of record in Queensland.  However, its functions (as opposed to jurisdiction) under s 447 are broad and include a range of non-judicial functions:

“447Commission’s functions

1. (1)
   The commission’s function include the following─

1. (a)
   establishing and maintain a system of non-discriminatory modern awards that, together with the Queensland Employment Standards, provide for fair and just conditions of employment for employees;

1. (b)
   supervising the bargaining of agreements;

1. (c)
   certifying agreements;

1. (d)
   making bargaining awards;

1. (e)
   making modern awards;

1. (f)
   promoting cooperative and productive workplace relations;

1. (g)
   taking measures to prevent disputes;

1. (h)
   assisting parties to an industrial cause in negotiating or resolving a matter relevant to the cause, whether or not the matter is within the jurisdiction of the commission;

1. (i)
   resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order;

1. (j)
   resolving disputes in the negotiation of agreements─

1. (i)
   by conciliation; or

1. (ii)
   by arbitration, including by the making of determinations;

1. (k)
   resolving disputes over union coverage by making representation orders;

1. (l)
   resolving disputes by performing the functions conferred on the commission under a referral agreement;

1. (m)
   resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;

1. (n)
   dealing with─

1. (i)
   applications brought under this Act or another Act, including for public service appeals; or

1. (ii)
   claims relating to dismissals;

1. (o)
   making declarations about industrial matters;

1. (p)
   any other function conferred on the commission under this Act or another Act.

…”

59. [59]
    Fairly characterised, many of the functions described in s 447 are decidedly non-judicial, including conciliation, arbitration, and the making and enforcement of awards.  Furthermore, pursuant to s 447(2), the Commission must perform its function in a way that is consistent with the objects of the Act and “avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act”.
60. [60]
    The QIRC’s jurisdiction is set out in s 448 of the IR Act:

“448 Commission’s jurisdiction

(1) The commission may hear and decide the following matters─

(a) a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;

(b) all questions─

(i) arising out of an industrial matter; or

(ii) involving deciding the rights and duties of a person in relation to an industrial matter; or

(iii) it considers expedient to hear and decide about an industrial matter;

(c) an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;

(d) all appeals properly made to it under this Act or another Act;

(e) all matters referred to the commission under this Act or another Act.

(2)The commission may regulate a calling by an award─

(a) on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or

(b) on application by the Minister; or

(c) on its own initiative.

(3)The commission─

(a) may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and

(b) must hold an inquiry into or about an industrial matter if the Minister, by notice, directs.

(4)The commission must report the result of the inquiry, and make recommendations, to the Minister.

(5)The commission may consolidate into 1 award all awards that apply to or affect an employer or class of employer in a calling, or the members of an organisation employed by the same employer or class of employer─

(a) on application by an organisation or an employer; or

(b) if the Minister, by notice, directs.

(6)When exercising power under subsection (5), the commission may make the amendments it considers necessary or convenient to give effect to the consolidated award.

(7)No provision of this Act or another Act limits, by implication, the commission’s jurisdiction.

(8)In this section─

class includes a section of a class.”

61. [61]
    Whilst the matters in 448(1) pertain to hearing and deciding particular industrial matters, the breadth of the Commission’s jurisdiction extends to the regulation of a calling by an award, brought on by an organisation, an employer, the Minister or “on its own initiative”.^[49]  Furthermore, the QIRC may hold inquiries in relation to industrial matters,^[50] report on the results of inquiries and make recommendations to the Minister,^[51] as well as consolidate or amend awards.^[52] 
62. [62]
    Additionally, the Full Bench of the QIRC:

    1. is empowered to make “general rulings” about industrial matters for employees bound by industrial instruments or minimum wages;^[53]
    2. is required to make a general ruling about a Queensland minimum wage for all employees at least once each year;^[54]
    3. has power to make statements of policy about industrial matters, whether or not the matter is before the Commission;^[55]
    4. may assist parties in negotiating or resolving a matter relevant to an industrial cause, whether or not the matter is within the jurisdiction of the Commission.^[56]
63. [63]
    The breadth of the QIRC’s jurisdiction, functions and powers that exceeds hearing and deciding matters is a significant indicium, in my view, that it is not a court of the State for purpose of Chapter III. 
64. [64]
    While the IR Act establishes, and provides the legislative framework, for both the Industrial Court and the QIRC, the Act makes a clear distinction between the QIRC’s functions in s 447 and jurisdiction in s 448 with the “jurisdiction and powers” of the Industrial Court at s 424:

“424Jurisdiction and powers

(1) The court may─

(a) perform all functions and exercise all powers given to the court under this Act or another Act; and

(b) hear and decide, and give its opinion on, a matter referred to it by the commission; and

(c) hear and decide an offence against this Act, unless this Act provides otherwise; and

(d) hear and decide appeals from an industrial magistrate’s decision in proceedings for─

 (i) an offence against this Act; or

(ii) recovery of damages, or other amounts, under this Act; and

(e) if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process─

(i) the commission and magistrates exercise their jurisdiction according to law; and

(ii) the commission and magistrates do not exceed their jurisdictions.

(2) In proceedings, the court may─

(a) make the decisions it considers appropriate, irrespective of specific relief sought by a party; and

(b) give directions about the hearing of a matter.

(3) The court’s jurisdiction is not limited, by implication, by a provision of this Act or another Act.

(4) The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.”

65. [65]
    It can immediately be seen that the jurisdiction of the Industrial Court is, legislatively, significantly different to the QIRC’s functions as contained in s 447 and jurisdiction in s 448.
66. [66]
    Pursuant to s 407 the Industrial Court is established as a superior court of record in Queensland and by s 429, the QIRC is established as a court of record, although not a superior court of record. 
67. [67]
    Despite the designation of the QIRC as a court of record, Parliament chose to style it as a Commission, not a court. In Commonwealth v Anti-Discrimination Tribunal (Tas),^[57]  Kenny J observed that the fact that the legislature has not referred to a body as a court in its constituting legislation may be “an obvious guide” as to the legislative intent.^[58]
68. [68]
    The QIRC, for certain proceedings, is not bound by rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction.^[59]  By s 531(3) of the IR Act, the QIRC is to be guided in its decisions “by equity, good conscience and the substantial merits of the case” having regard not just to the interests of the persons immediately concerned by the case but also to the interests of the community as a whole.
69. [69]
    The Industrial Court has the power of contempt,^[60] but the QIRC does not.
70. [70]
    The President of the QIRC is appointed by the Governor in Council,^[61] and only a Supreme Court Judge is eligible for appointment.  Upon appointment, a Supreme Court Judge serves as both the President of the QIRC as well as the President of the Industrial Court.^[62]
71. [71]
    The membership of the QIRC then includes a Vice President, Deputy Presidents and Commissioners.^[63]  The Vice President and the Deputy President (court) also serve dual roles as both members of the Industrial Court and the QIRC.^[64]  Each of the Vice President and the Deputy Presidents must be lawyers of at least five years standing.^[65]
72. [72]
    The Vice President and Deputy Presidents, once appointed, have tenure and can hold office until the age of 70 years.^[66]
73. [73]
    Of the nine other members of the QIRC, being the Commissioners, none are required to have any legal training.  Whilst it is the case that, as a question of fact, many of them do, there is no requirement for them to have that training.  Rather, Chapter 11 Part 2 Division 3 of the IR Act requires that the Commissioners must have “a high level of experience in business or industry or a relevant entity” or otherwise “suitable experience, qualifications and standing in the community to be appointed as an industrial commissioner”.^[67]  Despite this, the Commissioners have tenure,^[68] in the same way as the Vice President and the Deputy President (court). Both can only be removed from office for mental or physical incapacity, or misbehaviour.^[69]
74. [74]
    The fact of tenure is, I accept, a persuasive feature in favour of independence and impartiality. Nevertheless, I bear in mind the statement of Spigelman J in Skiwing’s case set out at [54] above, that in order to be part of the constitutionally required integrated judicial system, a tribunal must be able to be characterised not only as a court, but as a court of law.
75. [75]
    While the question is finely balanced, it seems to me that the better view is that the QIRC is not a “court of the State” for the purposes of Chapter III of the Constitution, primarily because:

    1. the breadth of industrial functions which the QIRC is called upon to perform far exceeds ordinary judicial functions. In particular, the breadth of conciliation, arbitration, involvement in the making of awards, general ruling powers and the making of recommendations, are all matters of a distinctly non-judicial character. Engagement in the performance of those functions are ones which strain notions of independence and impartiality in the traditionally understood sense. They are critical, no doubt, in a functional industrial relations context, but they are decidedly non-judicial;
    2. the Commissioners are not required to be legally qualified. For a court to be a court of law, it seems to me that the decision makers (or the majority of them) ought to be required to be, at a minimum, legally qualified; and
    3. the manner in which the QIRC determines outcomes, is not limited to an approach affecting the rights of the parties to the piece of litigation, but takes into account broader community interests, in a way that is, again, decidedly non-judicial in character.
76. [76]
    Furthermore, although of lesser importance, I consider, as Spigelman CJ did in Skiwing’s case, that the “absence of the word ‘court’ in the constitutive statute is indicative”.^[70] The same can be said here where, in the constitutive statute, an intentional distinction is made between the Industrial Court and the Commission.
77. [77]
    While I accept that the QIRC exercises some judicial powers, that is not sufficient, even in combination with the other factors I have identified above, to establish that it is a “court of a State” for the purpose of being invested with federal jurisdiction under s 71 of the Constitution.
78. [78]
    It is, of course, a matter of significance that the QIRC is a court of record and that its members have tenure, those features are ones which demonstrate the importance of the independence and impartiality which members must bring to bear on the performance of the QIRC’s functions. But those functions, as I have found, far exceed ordinary judicial functions.
79. [79]
    In the circumstances, had it been necessary for me to decide this issue (that is, if I had concluded that the matter was within the “resident versus State” component of s 75(iv) of the Constitution) I would have concluded that the QIRC is not a “court of a State” within the meaning of s 77(iii) of the Constitution, and therefore cannot be invested with the exercise of the judicial power of the Commonwealth.

QIRC’s exclusive jurisdiction

80. [80]
    The second, and related argument, as I have set out above, is that s 450 of the IR Act only renders exclusive such jurisdiction that is actually conferred upon it. Not being a “court of a State”, no matter in federal jurisdiction could ever be conferred upon it. This argument however pre-supposes that this court would find that federal jurisdiction was in fact conferred under s 75(iv), a matter I have already resolved against the plaintiffs. Accordingly, although it is not strictly necessary to decide, I say something briefly about it in deference to the depth of the submissions.
81. [81]
    Section 450 of the IR Act provides:

“450 Commission’s jurisdiction is exclusive

 The original and appellate jurisdiction conferred on the commission by this Act or another an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.”

82. [82]
    The parties accept that this proceeding concerns the Commission’s original jurisdiction. Section 448 identifies the Commission’s jurisdiction as follows:

“448  Commission’s jurisdiction

1. (1)
   The Commission may hear and decide the following matters─

1. (a)
   a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;

1. (b)
   all questions─

1. (i)
   arising out of an industrial matter; or

1. (ii)
   involving deciding the rights and duties of a person in relation to an industrial matter; or

1. (iii)
   it considers expedient to hear and decide about an industrial matter;

1. (c)
   an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;

1. (d)
   all appeals properly made to it under this Act or another Act;

1. (e)
   all matters referred to the commission under this Act or another Act.

1. (2)
   …

1. (3)
   The commission─

1. (a)
   may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and

1. (b)
   must hold an inquiry into or about an industrial matter if the Minister, by notice, directs.

1. (4)
   The commission must report the result of the inquiry, and make recommendations, to the Minister.

1. (5)
   …

1. (6)
   …

1. (7)
   No provision of this Act or another Act limits, by implication, the commission’s jurisdiction.

1. (8)
   …”

83. [83]
    The term “industrial matter” as contained in s 448(1)(b)(i) is defined by s 9 as follows:

“9What is an industrial matter

(1) An industrial matter is a matter that affects or relates to─

(a) work done or to be done; or

(b) the privileges, rights or functions of─

(i) employers or employees; or

(ii) persons who have been, or propose to be, or who may become, employers or employees; or

(c) a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.

(2)However, a matter is not an industrial matter if it is the subject of a proceeding for─

(a) an indictable offence; or

(b) a public service appeal.

(3)Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.”

84. [84]
    The matters in Schedule 1 which are referred to at s 9(3) cover a very broad range of workplace issues and entitlements:

“Schedule 1 Industrial matters

1 wages, allowances or remuneration of persons employed, or to be employed, during ordinary work hours, on overtime, on special work or on public holidays

…

13 the age, qualification or status of employees, or the mode and conditions of employment or non-employment, including whether a person should be disqualified for employment

…

16 a claim to dismiss or to refuse to employ a particular person or class of person, or whether a particular person or class of person, ought to be continued or reinstated in the employment of a particular employer, considering the public interest, despite common law rights of employers or employees

17 the right to dismiss, or to refuse to employ, reinstate or re-employ a particular person, or class of person, in a particular calling

18 custom or usage about employment conditions, either generally or in a particular calling or locality

…

20 the subject matter of an industrial dispute, and a matter that has caused, or the court or commission considers is likely to cause, disagreement or fiction between employers and employees

…

22 the regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on─

 (a) the conduct of a calling; and

 (b) the provision of benefits to persons engaged in a calling

…”

85. [85]
    It can be accepted therefore that the breadth of industrial matters captured by the exclusive jurisdiction of the QIRC, and the words “affects or relates to” in s 9(1), are very wide.^[71] That is so even though any exclusion of the otherwise general jurisdiction of a superior court is to be construed narrowly.^[72]
86. [86]
    Here, the plaintiffs submit that s 450 of the IR Act is simply not engaged because the matter is, properly characterised, a federal one, such that exclusive jurisdiction could only be conferred when it was properly conferred. Having found against the plaintiffs on this issue, the second alternative argument would also fail.
87. [87]
    The plaintiffs submit however there is a further alternative basis pertaining to s 450, effectively to find a conferral of federal jurisdiction (and therefore a lack of exclusive jurisdiction in the QIRC) arising out of Citta Hobart Pty Ltd v Cawthorn^[73] where the plurality held:

“[31] A ‘matter’ referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated. Amongst the circumstances in which a justiciable controversy answers the description in s 76(ii) of a matter ‘arising under’ a law made by the Commonwealth Parliament is where a Commonwealth law is relied on as the source of a claim or a defence that is asserted in the course of the controversy. And amongst the circumstances in which a justiciable controversy answers the description in s 76(i) of a matter ‘arising under’ the Constitution is where the invalidity or inoperability of a Commonwealth or State law is asserted in the course of the controversy in reliance on the Constitution. In each case, the assertion operates to characterise the totality of the justiciable controversy and continues to characterise the totality of the justiciable controversy even where the assertion is later resolved in the exercise of judicial power or even withdrawn.

…

[35] The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.

[36] That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is ‘unarguable’ or if the claim or defence is ‘colourable’ in that it is made for the purpose of ‘fabricating’ jurisdiction.”

(footnotes omitted and my underlining)

88. [88]
    The plaintiffs contend that their argument that the QIRC is not a “court of the State” means that there is an argument genuinely in controversy as described in Citta arising out of the Constitution, or involving its interpretation, such as to invoke federal jurisdiction and remove the matter from the exclusive jurisdiction of the QIRC.
89. [89]
    I do not accept that these statements in Citta are applicable to a jurisdictional question. It seems to me that the statements are confined to a claim or defence genuinely in controversy as those terms is used at [35] above, but cannot be used as a method to invest federal jurisdiction where it does not otherwise arise under ss 75 or 76 of the Constitution.

Constitution s 109

90. [90]
    That leaves only the final issue raised by the plaintiffs, that s 450 of the IR Act is inconsistent with ss 39 and 58 of the Judiciary Act, meaning that, to the extent of the inconsistency, the State law is invalid.^[74]
91. [91]
    That starting proposition here is s 58 of the Queensland Constitution Act 2001 (Qld), which provides:

“58  Supreme Court’s superior jurisdiction

1. The Supreme Court has all jurisdiction necessary for the administration of justice in Queensland.
2. Without limiting subsection (1), the court—
   1. (a)
      is the superior court of record in Queensland and the supreme court of general jurisdiction in and for the State; and
   1. (b)
      has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.”

92. [92]
    The plaintiffs submit, correctly in my view, that on its face, conferral of general jurisdiction in and for Queensland must include jurisdiction to deal with questions arising in Queensland under Queensland statute. That would therefore cover matters the subject of the IR Act but for the provision of exclusive jurisdiction in s 450 of the IR Act.
93. [93]
    Section 39 of the Judiciary Act is set out at [17] above. Section 39(1) excludes the State jurisdiction conferred on the Supreme Court over the claim if it falls within the original jurisdiction of the High Court under ss 75(iv) and 76(ii) of the Constitution. Section 39(2) then invests federal jurisdiction in the Supreme Court over the matter if it is within the original jurisdiction of the High Court, or jurisdiction can be conferred upon it.
94. [94]
    Separately, s 58 of the Judiciary Act permits a claim to be brought against the State in respect of a matter over which the High Court has or “can have” original jurisdiction to be brought only “in the Supreme Court of the State” or the High Court. Put another way, the plaintiffs submit that the more general conferral of federal jurisdiction in section 39(2), of the “several Courts of the State”, must be read subject to the forum type clause in section 58, with the effect that the only, “Court of a State” that can hear and determine a claim by a resident of New South Wales against the State of Queensland, is the Supreme Court of Queensland. As a consequence, the plaintiffs submit, s 450 of the IR Act is inoperative by reason of s 109 of the Constitution as it is inconsistent with ss 39(2) and 58 of the Judiciary Act. As I understood the submission however, that inconsistency only arose if I was satisfied that the QIRC that the QIRC was a “court of a State”. I not being so satisfied, it does not fall to me to decide this issue.

Conclusion

95. [95]
    It follows that the defendants’ application having been successful, the proceedings in this court ought to be stayed.