The Home is in Order: Excessive Courtroom confirms Tribunal Right to dismiss incapacity grievance for need of jurisdiction
Special Counsel Margaret Arthur and Law Graduate Thomas Mirolo-Lynam discuss whether a tribunal has jurisdiction to decide matters where there is a relevant issue arising under federal laws, with the lens of a recent High Court decision in Citta Hobart Pty Ltd v Cawthorn  HCA 16 (“Cawthorn v Citta”).
Does a tribunal, such as the Queensland Civil & Administrative Tribunal (QCAT), have jurisdiction to decide matters where there is a relevant issue arising under federal laws? For example, where a person with a disability claims discrimination against a respondent who then points to a federal law as a defence?
The answer appears to be no – for example, QCAT could not determine the matter and would have to refer it to a court with the jurisdiction to determine federal disputes and QCAT could only deal with the matter to the extent of deciding whether it had jurisdiction.
High Court Decision
In the recent High Court decision of Citta Hobart Pty Ltd v Cawthorn  HCA 16 (“Cawthorn v Citta”) the High Court had to decide an appeal from the Full Court of Tasmania.
Mr Cawthorn, who has paraplegia, bought a claim in the Tasmanian Anti-Discrimination Tribunal (tribunal) alleging that Citta Hobart Pty Ltd (citta) had discriminated against him by failing to provide him with disability access to Parliament Square. Citta contended that it had complied with the federal Disability (Access to Premises-Buildings) Standards and the Federal Disability Discrimination Act.
In a complex set of reasons, the High Court essentially determined that the Tribunal is not a Court within the meaning of Chapter III of the Federal Constitution and does not have jurisdiction to exercise jurisdiction in federal matters.
However, the High Court also found that, even though it may not be expressly stated in the legislation establishing a tribunal, a tribunal does have the non-judicial power to “make up their mind” as to the limits of their jurisdiction in a particular matter. For example, to decide that there is a federal aspect to the matter requiring it to refer the matter to an appropriate court or that the matter fails for want of jurisdiction.
Here, the High Court found that a constitutional defense had been genuinely raised in answer to the complaint to the Tribunal, and whatever its merits, the Tribunal was and could not be enlivened with federal jurisdiction to determine the complaint.
What does this mean for QCAT?
There is no reference to federal jurisdiction at all in the QCAT Act and it appears that QCAT has already adopted a position that reflects the High Court’s decision in Cawthorn v Citta.
Interestingly, in the case of AB v CD  QCAT 295 it was said:
Though this Tribunal is referred to in section 164 of the QCAT Act as a court of record, there is no provision in the Act referring to it as a court of law or a court of the State of Queensland.
In that matter, a federal aspect arose and the Member noted:
Alternatively, I would decline to exercise jurisdiction because, subject to geographical and monetary limitations, a State Magistrates Court closest to a Respondent’s place of residence would be the appropriate and most convenient court in which to obtain, and enforce, a judgment for a child support debt, or in the Federal Circuit Court of Australia.
Cawthorn v Citta is a decision to keep in mind when dealing with matters before a state-based tribunal.
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