Citta Hobart Pty Ltd & Anor v Cawthorn

[2022] HCATrans 4

[2022] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H7 of 2021

B e t w e e n -

CITTA HOBART PTY LTD

First Appellant

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

Second Appellant

and

DAVID CAWTHORN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 9 FEBRUARY 2022, AT 10.04 AM

(Continued from 8/02/22)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Ms Gordon.

MS GORDON: If it please the Court, I will address ground 2 and the inconsistency argument raised by that ground. Just to situate what I will say by reference to our written submissions, in paragraphs 35 to 36 of our written submissions we make the point that under the scheme of the Disability Discrimination Act the effect of disability standards on State laws will depend on the content of the particular standards in question and it is the content of the standard in question in this case which will be the focus of my oral submissions.

Now, leaving aside momentarily the significance of express statements of intention and objectives, we say that based on the content of the rules in the Commonwealth standards one would conclude that they are intended to operate to the exclusion of relevant State laws, and we say that for three reasons as a matter of construction of the standards.

First, the standards contain detailed and comprehensive rules as to what must be done to provide for non‑discriminatory access to particular categories of buildings for people with a disability.  Second, the rules were intended to bring about national uniformity by aligning them with rules applicable in the context of the scheme of uniform national building regulations, and third, the purpose of making standards under the Commonwealth Act is to replace general prohibitions with specific rules to guide people’s conduct.  What I will do is briefly elaborate on each of those reasons and then come back to the two key arguments that are put against that construction.

So, the first point is detailed and comprehensive rules.  The standards, as your Honours will recall, are in the joint book of authorities volume 1, tab 5, from page 183 onwards.  Mr Batt yesterday took you in some detail to those standards and I hope to avoid doing so, fixed and possible, again.  In brief, for those categories of buildings to which the standards apply – and those are broadly new buildings which are publicly accessible – the standards include requirements regarding entry to and exit from buildings, requirements for accessibility of key features of buildings such as passenger lifts and bathrooms, and then very detailed technical specifications for matters such as door widths, handrails, ramp gradients and the location and seating spaces for wheelchairs and assembly areas.

Now, your Honours will recall that yesterday Mr Batt gave an example of particular provisions relating to entry to relevant buildings that are relevant to this case and I do not need to go back to that detail, but the point for present purposes is that is really one example of the kinds of rules in the standards and that the standards contain detailed rules telling those responsible for new builds what at a minimum to ensure non‑discriminatory access to particular categories of buildings for people with a disability and, in our submission, those rules are on their face a comprehensive code.  Indeed, no other party or intervener has taken a point that they are not detailed or comprehensive.

GAGELER J:   But you describe them as a minimum.  Is there not a tension between those two descriptions?

MS GORDON:   Well, they are comprehensive in the sense that if the minimum standards are complied with that is the end of the story and the persons responsible will have complied with their obligations to provide an accessible building, but they are also comprehensive in that one can comply with the more general obligations in the code by other means.  One can provide better or equivalent access than the minimum standards require.

KIEFEL CJ:   Ms Gordon, I take it though that it would not cut across the scheme as you have described it and given what you have called the minimum requirements for a State to have additional requirements?

MS GORDON:   Well, in our submission, Chief Justice, the additional requirements would cut across an intention to cover the field because it is the mere co‑existence of rules on the same topic that causes the problem.  Mr Batt’s submissions yesterday were addressed to the additional burden that is, in fact, imposed by the co‑existence of the State laws.  But really, in our submission, one gets to that point in the indirect inconsistency sense because of the intention to cover the field.  In this part of my submissions, the submission is that the detail is one of the bases to conclude that intention.

KIEFEL CJ:   But in saying that they are minimum requirements, are you not saying that there is more that could be required – that there could be more detail – they could be more comprehensive within the same framework of the subject matter?

MS GORDON:   There could be more but there need not be to ensure, under the Commonwealth scheme, that one has acquitted one’s obligations to provide non‑discriminatory access.

KIEFEL CJ:   Your argument, I take it, is that the Commonwealth only that could legislate to add the “more”.

MS GORDON:   That must be right, Chief Justice, but I think ‑ ‑ ‑

KIEFEL CJ:   The point means that you are not looking at the comprehensive nature of the scheme to say that it is covering the field.  You must be looking at other indicia within the text or purpose of the provisions to get you to that point.

MS GORDON:   I am not sure if this will satisfy your question, Chief Justice, but I was referring to minimum standards to endeavour to make the point that that is all that can be required of someone.  It is not to say that someone cannot go above and beyond those but “minimum” is intended not to undercut the notion of comprehensive or detailed because both minimum standards are comprehensive and detailed, but ‑ ‑ ‑

EDELMAN J:   Ms Gordon, your submission is really that it is a comprehensive consideration of what should be the mandatory minimum and it is a decision as to where to draw that baseline.

MS GORDON:   Precisely.  I would gratefully accept that, your Honour.  I just wanted then to draw your Honours to two authorities that make this point about detail.  The first is the Outback Ballooning Case (2019) 266 CLR 428 at paragraphs 34 to 35 and I would ask your Honours to go to that authority. It is in tab 89 of the bundle, volume 12.

In this section of the plurality judgment, their Honours are really describing the principles applicable to discerning an inconsistency for the perspective of section 109 and in paragraph 35, in particular, they are discussing indirect inconsistency. This is the passage to which I wanted to draw your Honours’ attention, in particular:

It is not to be expected that a Commonwealth law will usually declare that it has this effect. 

That is, the effect of covering the field:

In some cases the detailed nature or schemeof the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter.

That is the detailed nature or scheme is one aspect of that passage on which we rely.  In addition to that, the statement underscores another point that is important for this case and that is that it was, of course, made in the context where the Commonwealth Parliament always has the option of including in its legislation an express intention to cover the field.  The absence of an express intention – despite that always available option – does not prevent a conclusion that, by virtue of the content of the law, the requisite intention is evinced. 

We say, and this is a point that I will come back to shortly, the same logic applies to this case where we know that there is an express option for the Minister to include in the standards an express statement that that is not done.

GORDON J:   Ms Gordon, one of the reasons why it may not have been done is because, of course, absent a treaty or something else, the Commonwealth does not have plenary power here.  If one actually looks at the scheme created by the Commonwealth legislation, one sees consultation with the States in order to ensure that the States are brought on board giving rise to – and we were taken through yesterday a number of provisions which recognise that they operate concurrently.  

MS GORDON:   Yes, that is right of course, your Honour, but we do not understand that there is any question that these standards would be supported by the treaties power and, indeed, that objective is recognised in the explanatory statement to the standards.  But of course, if there were a problem with power, that would be another matter, but we say we are not in that territory here.

GAGELER J:   Ms Gordon, can I ask a question at a slightly different level of discourse. For the purpose of section 109 of the Constitution, what is the Commonwealth law with which we are concerned? Is it the disability standards or is it those provisions of the Act that give legal effect to the disability standards? It is by no means apparent to me that the standards are themselves a law for the purpose of section 109.

MS GORDON: Could I answer that in two ways, your Honour. First, we would say that the standards are a law for the purpose of section 109 and if I could give your Honour just one reference for that proposition, and it is to Jemena Asset Management Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 38. There their Honours are drawing on a number of antecedent authorities, but they say:

The expressions “a law of the State” and “a law of the Commonwealth” in s 109 are sufficiently general for s 109 to be capable of applying to inconsistencies which involve not only a statute or provisions in a statute, but also, as mentioned, an industrial order or award, or other legislative instrument or regulation, made under a statute.

So, the first part of my response to your Honour is to say we are comfortably within that category because we are here dealing with a legislative instrument and one that is also of a legislative character if that is an additional requirement.  Secondly, however, if that were not sufficient, the effect to which the Disability Discrimination Act gives to the standards will come into play because they expressly contemplate that the standards may operate to displace State law.  So those are the two ways in which we put that.

GORDON J:   Do you rely upon the fact that section 31(1) describes the fact that the Minister may by legislative instrument formulate standards?  Do you call in aid of that argument section ‑ ‑ ‑

MS GORDON:   Yes, your Honour.

GORDON J:   Thank you.

EDELMAN J:   Ms Gordon, to some extent there is a real resonance between at a broad level the schemes in this case and the schemes in Outback Ballooning, including the way the regulations work together with the Act.  But at the level of subject matter, is there not a significant difference between the two cases?  One might expect before even delving into the detail of airline safety regulations that there might be a single scheme imposing a minimum mandatory content for airline safety, but one might not expect the same result in relation to disability discrimination.  It is not like flying an airline where there needs to be a single set of minimum rules.  In any event, the majority in Work Health Authority v Outback Ballooning concluded that there was not any inconsistency.

MS GORDON:   Yes, there are a number of parts to your Honour’s question.  In terms of the subject matter not necessarily entailing a kind of instinctive response that it requires exclusive regulation, I would submit that in some ways Viskauskas v Niland might be an answer to that because in that case, in the absence of any express statement of intention in the Commonwealth Act, the High Court nevertheless concluded that one could not have parallel regimes prohibiting racial discrimination because in order to achieve the objective of eliminating racial discrimination which was the object of the federal Act and in that regard to pursue the object of implementing the treaty, really it had to be the one to set the rules, and any detraction or different or co‑existing rules would detract from that.  So that is the answer I would give to that hypothesis that one is in a fundamentally different territory in terms of the need for exclusivity.

In terms of the way in which the Court reasoned in Outback Ballooning to conclude that there – a majority of the Court reasoned to conclude that there was no inconsistency – if my recollection is right, there was a broad agreement with the importance of the detail, and the importance of exclusively regulating it, but there was a particular provision, section 28E(5) – I might have got that wrong – but there is a particular provision in the federal scheme that expressly allowed for the operation of State duties to take care for the sake and welfare of others.

In my submission, that was a very important reason why notwithstanding the detail in Outback Ballooning, the Court was able to conclude that the breadth of the field did not extend to that particular area.  I think that ‑ ‑ ‑

KEANE J:   Ms Gordon, if one reads on in paragraph 35, and the reasons in Outback Ballooning, the plurality go on to say:

Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered.  A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended.

Then, one looks at section 31(2b), which does seem to be very much a provision which allows for - or allows for the exclusion of the operation of State laws.  That provision is there.  It has not been invoked in relation of the disability standards.  That being so, how do you say that there is an intention to make comprehensive provision for relevant discriminatory or non‑discriminatory access to particular categories of building?  More particularly, how do you say that the Commonwealth Act can be seen as a national scheme when 31(2)(b) would have permitted that to happen and it has not been invoked?

MS GORDON: Three answers to your Honour’s question, which I think were answers given by Mr Batt yesterday. They are, firstly, just going back to section 13(3A) of the Disability Discrimination Act, there the intention for the regimes to co‑exist expressly does not apply in relation to disability standards.

Second point, the expressed facility given in 31(2)(b) is not mandatory.  The expressed indication may or may not be given.  On the terms of section 31(2)(b), it could go either way.  It may provide that the disability standard in whole or in part is, or is not, intended to affect the operation of a State or Territory law.

We say, just going back to a submission that I made earlier, that really mirrors the situation that pertains whenever the Commonwealth enacts a law – it can, it can make a statement one way or the other about its intention, but the fact that it has not done so, one way or the other, does not prevent a conclusion as to whether, as a matter of construction, the statute has the intention to cover the field.

If I could give your Honours just one more reference to an authority that is in the supplementary bundle that was filed either yesterday or the day before at tab 3, and that is with a case with which you are no doubt familiar, O’Sullivan v Noarlunga Meat (1954) 92 CLR 565 at 591 to 592, and really that was a case about State and federal laws, or federal regulations in that case that both regulated the use of abattoirs for meat for export, and I proffer it just as an example of a case where the detailed nature of the regulation was seen as decisive of an intention to cover the field.

Now, if I could move then to the second reason we say one would discern an intention to cover the field and that is the way in which the disability access standards pick up on the rules applicable in the national scheme of building regulation with the objective of achieving national uniformity in the applicable rules.  I do not need to take your Honours there, but you will see that link in the definition of “access code” in section 1.4 of the standards and that is at the joint bundle of authorities at 186.

I did want to take your Honours very briefly to the explanatory statement for the standard which is at the joint bundle volume 17, tab 125 because that explains why it was that these standards drew on the content or sought to rely on themselves with the content of rules applicable in a uniform national building context.

If your Honours have the first page of the explanatory statement, if I could just highlight for later reading really paragraphs 3 to 12 and then 29 to 30, but if I could just right now note two matters.  The first is paragraph 4 where it is said that:

The purpose of the Premises Standards is to provide:

·a nationally applicable set of provisions that detail what must be done to provide for non‑discriminatory access to public buildings for people with disability -

Then over the page:

·the first and perhaps the most significant step in the development of consistent and uniform requirements for non‑discriminatory building access – bringing together the access requirements under the DDA and building law –

and then a bit later on that page at paragraph 11 it is explained that:

By providing a detailed, coherent set of requirements, consistent with those applied by building law, and administered and enforced in that context, the Premises Standards will lead to far greater availability of accessible buildings in Australia –

and then it goes on.  Now, in our submission, that objective of national uniformity is another powerful indication of the standard really intending to operate to the exclusion of any other State laws on the same subject, being the subject of discrimination on the grounds of disability in the context of the relevant buildings.

Now, the building code of Australia is implemented through a co‑operative scheme of State laws and that is something that the respondents explain in their submissions at paragraph 39.  It appears from paragraph 11 of their oral outline that the argument – that the respondent was putting an argument against inconsistency that the Commonwealth standards were not intended to cover the field because they were explicitly designed to operate with and against the background of the building laws.

Now, the Commonwealth certainly does not dispute the proposition that they were intended to operate concurrently with or against the background of the State building laws ‑ indeed, we embrace that ‑ but that is because, in our submission, State building laws are not addressed to the same subject matter as the Commonwealth standards.

The State laws are concerned with construction standards and they really do not regulate the circumstances in which a person will be found to have discriminated or provide remedies for any such discrimination.  If I could illustrate the significance of that distinction by reference to Viskauskas v Niland which is at volume 11 of the joint bundle of authorities, tab 84.

As I just explained a moment ago to Justice Edelman, the issue in that case was whether State legislation prohibiting racial discrimination could co‑exist with Commonwealth legislation doing the same thing and that was in a context where there was no express statement of intention. 

Now, if I could ask your Honours to go to page 293 at about point 3 on the page - actually, scratch that, go straight to point 8 on the page.  Their Honours are there responding to an argument that it was significant that the Commonwealth Act had expressly overwritten specific State laws, but not specifically excluded the operation of State laws which themselves prohibited acts of racial discrimination.  One sees the response to that argument over the page at about point 2 on page 294.  It is a sentence beginning “In any case” and their Honours says:

In any case the presence of s.10 –

which was a section that explicitly addressed itself to some State laws but not others:

does not provide any indication that it was intended by the Parliament to leave the field open to State laws which prohibit racial discrimination and provide remedies for those persons who were discriminated against . . .  It is obvious enough that in some cases a person who complains of an act of racial discrimination may have a remedy in contract or in tort or under the provisions of a statute which validly deals with the act in question in some aspect other than its discriminatory quality.

That is really the distinction we rely on in this case, because the State building laws are not concerned with discriminatory quality of any conduct.  They are concerned with whether – sorry, I take that back your Honours.  State building laws may include requirements directed to ensuring that buildings are accessible, among a range of other requirements that they do not make it unlawful to discriminate.  We say that is really the key distinction which explains why the building laws do not enter the relevant field. 

I am conscious of time, your Honours.  I am now going to try to truncate things a little bit.  The third aspect of the standards on which we rely is the fact that their whole purpose is to enact specific, as against the general rules that would otherwise obtain.  The premise of the Commonwealth scheme is that though specific rules are followed, the general prohibitions do not apply, and, in our submission, it would be generally speaking anomalous if the precise rules and standards displaced the general prohibitions of the Commonwealth Act, but did not do the same, for very similar general prohibitions in State legislation. 

In that connection, one should bear in mind the point that has been addressed by members of this Court on a number of occasions, which is that section 109 is not only for the adjustment of relations between legislatures, but also for the citizen upon whom concurrent and cumulative duties and liabilities may be imposed. If I could give you a reference for that proposition - Dickson v Queen (2010) 241 CLR 491 at 503 at paragraph 19.

I simply draw your Honours’ attention to that because in my submission it highlights the oddity of subjecting citizens to detailed rules at the same time as open-ended prohibitions that render compliance with the detailed rules potentially irrelevant. 

Now, if I can turn very briefly, but try to do justice to the arguments that are put against the argument for inconsistency.  We say that the analysis that we have so far given really is not altered by the two matters that are the focus of the arguments against us, and those are the absence in the standard of any statement of intention, and the way in which one of the express objects of the standard is framed, which is framed in terms of being to provide certainty under Commonwealth law. 

Now, as to the first argument, the absence of express intention, I think I have said what I need to say already, partly in response to your Honour Justice Keane’s question which was:  here is 31(2)(b), they have not taken advantage of that, how do we deal with that?  That is really all I wanted to say in response to that argument.

The next argument put against us is that the object – and perhaps if I take your Honours to that object – it is at the joint book of authorities, volume 1, tab 5, page 186, and you will see, your Honours, 1.3 is the objects and then there is an object (a) which is not relevantly restricted.  But then object (b):

to give certainty to . . . to the extent covered by these Standards, [the conduct] will not be unlawful under the Act.

So that is a reference to the Commonwealth Act, and it is put against us that, well, there is no objective for certainty under any other Act. In our submission, the framing of that objective is neutral insofar as the section 109 analysis is concerned, and that is for the following reasons: 1.3(b) is really just stating the effect of section 34 of the federal Act and bringing section 34 into play will always be an objective of the standard.

It is, in my submission, unsurprising that the objective of the standard is expressed in terms of Commonwealth law because one would not expect a Commonwealth law to have as one of its objects the displacement of State law.  I think there is a distinction here between laying down a positive Commonwealth rule which may or may not displace State law, versus a statement of intention to displace law which is the very thing that is lacking in this case and the very reason why this argument arises.

The case, for example, which I mentioned earlier - Noarlunga Meat - the regulations in that case had nothing at all to say about the State law, and the effect of complying with the Commonwealth regulations only had an express consequence under federal law, but that did not prevent displacement of State law. 

If I could just illustrate the point with one final submission.  Had there been an express statement of intention to exclude the operation of

State and Territory law, it would be simply consistent with the way the second objective was framed, and we say likewise with an interest of intention.

For those reasons, your Honour, we submit that to the extent the Tasmanian Act purports to impose a prohibition on discrimination on the basis of disability in respect of the provision of access to buildings covered by the standard, it is invalid and, in our respectful submission, the Full Court’s analysis to the contrary was wrong.  Subject to one matter, your Honours, that concludes my submissions.  May it please the Court, those are my submissions.

KIEFEL CJ:   Yes, thank you, Ms Gordon.  Solicitor‑General for New South Wales.

MR SEXTON:   If the Court pleases, on the assumption – which is the one we were working on when we filed our written submissions - that the Tribunal would have been exercising judicial power in hearing and determining the complaint before it, we set out in those submissions why, given the constitutional implication recognised by the Court in Burns v Corbett that the Tribunal was correct in considering that it did not have jurisdiction to hear and determine the complaint.

We explained why a contravention of the constitutional implication, at least in relation to section 76(i) of the Constitution would not have been avoided by the Tribunal forming an opinion about the merits of the constitutional argument and acting in accordance with that opinion because even if a State tribunal is forming an opinion only as to the merits of the constitutional claim, it would still be purporting to exercise judicial power with respect to a matter in section 76(i).

We observed that the exercise being undertaken by the State tribunal would look almost identical to the determination of a constitutional argument by a Chapter III court – other than the fact that the guarantee of an appeal in section 73 of the Constitution would be available.

If it were not to be accepted – as the respondent and Queensland and the Commission contend – that the Tribunal was exercising judicial power, it might be argued – on the basis of Re Adams and the Tax Agents’ Board – that a different course was open to it or required by it.  Your Honour, I wanted to say something briefly about that case – which is at volume 14, tab 114 of the joint book of authorities – because there may be a question as to whether Re Adams is, in fact, authority for the proposition that an adjudicate of tribunal can treat – in effect, declare – a statute to be invalid.

That proposition would seem to follow, initially, from the accepted ability considered by Justice Brennan at 242, point 8 of the case.  I should say there are numbers on each alternate page, so I will use those when they are available and, otherwise, the old‑fashioned – which in this case is 242, point 8. 

So, it might be thought that Justice Brennan talks there of the accepted ability of an administrative body to form an opinion as to the limits of its own authority.  He refers to Hickman – although the question there for the…..board was whether a business was engaged in the coal mining industry within the meaning of the term of the relevant regulations.  So, no question of the validity of the statutory instrument arose.

He refers at 242, point 9 to Re Cilli’s Objection which was a decision of Justice Blackburn, sitting as the Northern Territory Land and Valuation Review Tribunal.  There was an objector’s argument that a notice forfeiting a lease was invalid because it did not comply with the requirements of the ordinance.  But, as Justice Blackburn pointed out, this could only be decided by a court because if the notice was invalid, the Tribunal had no jurisdiction whereas the objector maintained that the Tribunal did have jurisdiction.

Then, at 243, point 20, Justice Brennan expresses doubt about the proposition that an administrative body ought to consider the constitutional validity of a statute affecting its power.  While in the following paragraphs, Justice Brennan appears to accept that an administrative body might refrain from acting upon a statute in a clear case of constitutional invalidity, it might be noted that his Honour’s conclusion – at page 245, point 5 – assumed, he says:

If it be allowed . . . a competence in an administrative body to consider and form an opinion upon the constitutional validity of a statute –

But it might be also noted that his Honour declined, in this case, to answer the question about the constitutional validity of the relevant provision of the Income Tax Assessment Act 1936.  His Honour had already noted at 241, point 20 that a definitive answer to a question of constitutional invalidity requires the exercise of judicial power of the Commonwealth and so by a court in which that power is vested. 

Arguably, therefore, there is a question as to whether such a decision should be made by an administrative body rather than by a court that can provide a definitive answer and we have referred in our outline to the comment of Chief Justice Lamer in Cooper v Canadian Human Rights Commission.  But the distinction between a declaration of invalidity by a

court and an administrative body treating a statute as invalid is difficult to sustain.  Of course, the reason is that if a Tribunal acts on its finding that a statute is constitutionally invalid the result for the party who relies upon the statute will be the same as if this had been an exercise of judicial power by a court.

So, we raise that question in the light of the argument as to whether there is an exercise of judicial or administrative power by the Tasmanian Tribunal in this case.  Of course, if the exercise of judicial power be accepted your Honours may not need to go to those questions, but in light of the submissions that have been made and the fact that Re Adams has been quoted over a long period of time to suggest the role of an administrative tribunal, which is only exercising administrative power, it may be a question that your Honours are required to look at in this case.

Unless there is anything that I can add, your Honour, those are our submissions.

GAGELER J:   Mr Solicitor, are you asking us to overrule Sunol v Collier?

MR SEXTON:   Your Honour, Sunol of course preceded Burns v Corbett.  It cannot stand against the proposition in Burns v Corbett.  Whether it does or not might be a matter for argument.  I think it is not entirely clear exactly what the judgment was saying on that point, as I say, which precedes Burns v Corbett.  It might be noted, however, that the provision in the Anti‑Discrimination Act that was under consideration in Sunol is the same one that was under consideration in Burns v Corbett.  So, I think there is real doubt about what has been – if Sunol is taken to contradict Burns v Corbett then, of course, it cannot stand in that light but there may be some doubt as to exactly what is being said.

GORDON J:   Is that not also the position as a result of what the New South Wales Supreme Court did in both Gaynor and Wilson?  They seem to have stepped back from the analysis in Sunol which has not been the subject of argument either.

MR SEXTON:   Well, that is right, your Honour.  Yes, as I say, Sunol is a difficult judgment to construe, but because it precedes Burns v Corbett whatever it says I think has to be seen in the light of this Court’s later decision.  If the Court pleases.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  Solicitor‑General for Queensland.

MR THOMPSON: May it please the Court. We propose only to orally address the matters in paragraphs 5 and 6 of the outline of oral submissions of the Attorney‑General for the State of Queensland and just to make a short further point about section 109. Dealing with paragraphs 5 and 6, Burns v Corbett recognised an implied limitation on legislative power.  We refer in our submissions to the formulation of the two limbs of that limitation in the reasons of Justice Gageler in Burns at paragraph 106, without repeating them now. 

The point we wish to make orally, is that the scope of the negative implication and the question of when that implication is engaged, may not be satisfactorily answered by transposing the jurisprudence which has developed to facilitate the exercise of federal jurisdiction in another context.  That jurisprudence, particularly around what constitutes a matter, has been developed in relation to the exercise of federal jurisdictions in courts for a particular reason.  Matter in the context of the exercise of federal jurisdiction may be broader and outside the scope of the negative implication recognised in Burns. 

Concepts which were developed about the exercise of federal jurisdiction are concerned with ensuring, among other things, the efficacy of the judicial power of the Commonwealth to decide the whole controversy, and to ensure that this is done pursuant to a single source of jurisdiction. The cases about the exercise of jurisdiction and the scope of the power in section 77 cases are not about the protective effect of Chapter III or its exhaustive statement about the limitation upon how the subject matter listed in sections 75 and 76 are to be determined, as recognised in Burns. 

Matter, when it is used in the context of the exercise of federal jurisdiction, can encompass the determination of disputes outside sections 75 and 76. The negative implication recognised in Burns is restricted to the subject matters identified in sections 75 and 76 as Justice Gageler identified in paragraphs 103 to 106 of his reasons in Burns. 

Although it may not be relevant to a determination of the present appeal, the concern we raise is that the direct transposition of concepts applicable to the exercise of federal jurisdiction to the implied limitation recognised in Burns may have the potential to further restrict legislative power, and in particular legislative power of States, denying a State tribunal jurisdiction in particular places. 

It is not possible to predict in advance how this might play out, and it is probably not relevant in the present case, but a possible example may be the application of the concepts developed in cases relied upon by the appellants at paragraph 7 of their oral submissions – could prevent a State tribunal from deciding a matter where a defence based on a constitutional principle has been raised but then abandoned, or for some other reason not dealt with or decided adversely to a party in another court, the kind of considerations which are addressed in Moorgate in the joint book of authorities volume 8, tab53 at pages 472 in the judgment of Justice Gibbs, and in the plurality judgment of Justices Stephen, Mason, Aickin and Wilson at 476 to 477.

In such a case the Tribunal would not be being asked to determine a controversy arising under or involving the interpretation of the Constitution, but its jurisdiction would be impacted and ultimately Burns is an implied limitation on legislative power, which is a quite distinct concept in our submission. 

That is all we wanted to say orally about paragraphs 5and 6 of our oral outline. Can I just make one further point then in relation to section 109 and the question of operational inconsistency. In the transcript - at page 42 of the transcript, line 1790 yesterday, your Honour Justice Gageler raised a question about operational inconsistency directed to Mr Batt, and, paraphrasing, and hopefully not doing injustice to your Honour’s point, it was that for operational inconsistency you first have to find a factual basis for Mr Batt’s clients complying with the standards.

In our submission, the matter is readily characterised as operational inconsistency of the kind which was referred to in Victoria v Commonwealth (‘The Kakariki’), which is contained in the joint bundle of documents at volume 11, tab 83, page 4362 – and in particular the reasons of Justice Dixon, as his Honour then was, at page 631 of the report, page 4375 of the joint book of authorities.

The Kakariki concerned the Navigation Act (Cth), section 329, and section 13 of the then Victorian Marine Act – both of which were directed to the question of wreck removal.  If I can simply read the passage from the reasons of his Honour Justice Dixon in The Kakariki at page 631 – it appears at page 4375 of the joint book of authorities in volume 11, tab 83 – where his Honour says:

In other words, sec. 329 should be interpreted as meaning that the exertion of the power by the Minister –

that is the Commonwealth Minister:

shall impose upon the shipowner an obligation to the exclusion of similar obligations which might otherwise arise from the exercise of State authority –

that is the authority…..interpose under section 13 of the Victorian Marine Act – both of which dealt with the same subject matter.  His Honour continues:

It may thus be proper to understand sec. 329 as implying that, when the Minister undertakes the removal of a wreck, he may do so without interference from any other public authority. But, if this be so, no more follows than that, when, but not before –

we emphasise:

steps are taken under sec. 329 by the Commonwealth authority, the State authority becomes powerless. For under sec. 109 of the Commonwealth Constitution a State law is invalid only to the extent of the inconsistency.

It is not sufficient, we would submit, to say that there is a capacity for the standard to constitute a defence by making the relevant Act here lawful under the DDA.  Essentially, Mr Batt responded to your Honours – as we understand the response – that the State Act has the capacity to render unlawful conduct which a federal scheme makes lawful under the federal scheme – that appears at lines 1813 to 1815 of the transcript yesterday – and that this gave rise to the inconsistency.

The difficulty with that analysis, in our submission, is that the conduct is only made lawful under the federal scheme if it actually complies with the standard. If it has not been found to comply with the standard, then section 34 does not apply and the result is, if there is no finding of compliance with the standard, a party can be found to have discriminated under either the Commonwealth law or the State law.

Unless there is anything further we can assist the Court with, those are our submissions.

EDELMAN J:   Mr Thompson, just before you conclude, can I just ask you about your first submission, that the jurisprudence in relation to matter should not necessarily be transposed in relation to the question of the constitutional implication arising from Burns v Corbett?  Would that submission also apply to the same restrictions that might otherwise arise from sections 38 and 39 of the Judiciary Act, which are expressly concerned with matters?

MR THOMPSON:   Your Honour, I have not really contemplated the question and I am hesitant to provide an answer to your Honour without having spent more time looking at the point.  I am sorry, that is not a very

satisfactory answer, but it is a point that I would feel more comfortable looking at.

EDELMAN J:   It was the alternative ground on which three members of the Court decided Burns v Corbett?

MR THOMPSON:   Yes, your Honour.  I cannot really respond more than saying that that may be the case.  I apologise for not being more specific, your Honour.

KIEFEL CJ:   Thank you, Mr Solicitor.

MR THOMPSON:   Thank you, your Honour.

KIEFEL CJ:   On my list, the Solicitor‑General for South Australia is to speak next, but he does not appear on our screen.

MR WAIT:   Your Honour, I am not sure whether you can hear me.  There was a connection established this morning with the Registrar.

KIEFEL CJ:   Has it dropped out or is there some reason that you are not appearing at this point?

MR WAIT:   Your Honour, there is no reason why – it has not dropped out from our perspective.  I can hear and see all the members of the Court and other counsel.  It may be that the system is operating focusing on counsel that are speaking, and so it may be that I will come onto the screen as I speak, but I am not sure about that.

KIEFEL CJ:   No, I do not think it works that way, Mr Wait.  I think we will need to adjourn so that arrangements can be made to bring you on screen.  The Court will adjourn briefly.

AT 11.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.04 AM:

MR WAIT:   Thank you, your Honour, I hope you can hear and see me now.

KIEFEL CJ:   Yes, Mr Solicitor, thank you.

MR WAIT:   Thank you.  South Australia makes submissions in support of the appellants in relation to ground 1 and in support of the respondent in relation to ground 2.  In relation to ground 1, South Australia submits that there was a matter before the Tribunal and that the discrimination complaint formed part of the matter such that the Tribunal was correct to dismiss the complaint before it and the Full Court fell into error in holding otherwise. 

The parties and interveners have made various submissions about the implications of Burns v Corbett for the jurisdiction of the Tribunal.  South Australia’s submission proceeds on the basis that Burns v Corbett precludes the Tribunal exercising adjudicative authority with respect to a matter such that the question for this Court is whether there was a matter before the Tribunal and what were its metes and bounds.

Consistently with the submissions of the Attorney‑General for the Commonwealth and for Victoria, South Australia submits that the making of a claim – or a defence – that is either colourable or so untenable that it could not possibly succeed, does not give rise to a real dispute and, accordingly, does not constitute a matter for the purposes of sections 75 and 76 of the Constitution.  In our submission, that is a result of the objective assessment that was recognised by this Court in Agtrack v Hatfield which shapes the circumstances in which a matter arises and on an objective assessment, we submit that there was a matter before the Tribunal.  

The respondent contends that the discrimination complaint was disparate, or distinct, to the section 109 defence and so did not form part of the same matter. This contention is made on the basis that the section 109 defence held to be determined by a different forum to the discrimination complaint – since, it is said, only the Tribunal had authority to make orders sought by the respondent and only a Chapter III court could determine the section 109 defence.

The respondent’s submission on this issue should not be accepted for three reasons.  First, the respondent’s submission is inconsistent with the orthodox concept of a matter which encompasses all claims made within the scope of justiciable controversy.  Fencott v Muller tells us that the scope of the justiciable controversy is identified independently of the proceedings which are brought for its determination.  This tells against there being two matters merely because the claims may fall to be determined by different adjudicative bodies.

Second, the respondent’s submission would have the tendency to undermine the constitutional implication discerned in Burns v Corbett.  It would allow State legislature to avoid the creation of a matter or to determine the scope of a matter capable of attracting the implication simply by providing that only a State tribunal may grant a remedy to resolve a matter in the exercise of judicial power. 

These propositions are consistent with the approach of the Victorian Court of Appeal in the case of Meringnage.  The issue in that case was whether there was a matter at all and the issue in this case is whether the discrimination complaint formed part of the matter.  But the common thread is the contention that, where a State law provides for the enforcement of a claim only by a State tribunal rather than by a State court, that claim cannot be or form part of a matter.

If I could take your Honours to the Meringnage decision.  It is in volume 14 of the joint appeal book at tab 108.  There were three questions before the Court of Appeal.  The Court of Appeal concluded, question 1, that the VCAT was not a court and concluded, question 2, that the VCAT was exercising judicial power under the Equal Opportunity Act and the Court of Appeal then turned to address a further submission which is at the joint book, page 5380, but which is at page 397 of the Victorian Reports.  The question is stated there, at the top of that page:

Does VCAT nevertheless have the authority to decide a suit against the Commonwealth?

The submission stated at the end of paragraph 110 is recorded:

Meringnage’s submissions depend upon an acceptance by this Court of the reasoning of Basten JA in Gatsby. 

Now the court explained that the approach in Gatsby was - over the page at paragraph 113, they set out a passage from Justice Basten’s reasoning which they then referred to as the Gatsby approach.  The part of the passage from Justice Basten that is set out is:

[W]here the relevant ‘matter’ is defined by a State state, the content of the ‘matter’ will depend upon that statute.  If a statute does not confer jurisdiction on a State court, there will be no ‘matter’ -

The Court of appeal dissect the reasoning of Justice Basten on that issue into three propositions, but the important part of the Court of Appeal’s reasoning for our purposes commences over at paragraph 136 of the Court of Appeal’s reasoning.  That is at page 5388 of the joint appeal book.  Paragraph 136 of the Court of Appeal’s reasoning, they say:

The third proposition reasserts the importance of the legislative choice of the forum in which rights or duties are to be enforced.

Then, over the page, at paragraph 139, the Court of Appeal dispose of that submission based upon that reasoning.  At about two‑thirds of the way down paragraph 139, the Court of Appeal say:

Put simply, the third proposition is that if a dispute cannot in fact be determined in a court, it is not a ‘matter’.  As the Commonwealth and Victoria submit, this is inconsistent with the accepted conception of ‘matter’ that it is independent of the forum -

Then in paragraph 140 say:

we cannot accept that the third proposition is valid.

At paragraph 141, three lines in:

It allows for a State Parliament, by a stroke of the legislative pen, to avoid all the strictures that flow from the constitutional identification of certain subject-matters as comprising federal jurisdiction including the requirement that those matters are to be dealt with, in the exercise of State judicial power, only ‘by State courts co-opted for that purpose . . . bodies that satisfy the minimum guarantee of impartiality and independence . . . it seems implausible that a simple legislative choice . . . can have the effect of side‑stepping the constraints -

Can I just refer the Court without taking you to paragraphs 146 and 147 where the conclusions are summarised and confirmed.  The authorities, we say, consistent with the reasoning of the Court of Appeal in Meringnage tell us that it is not the actual enforcement of a claim in a particular forum that is essential to the existence of a matter, but rather that the dispute is capable of determination in a court in the exercise of judicial power. 

That is consistent with the passage from Palmer v Ayres, that is set out at paragraph 112 of the Meringnage judgment, if I could just ask your Honours to stay with that very briefly.  At paragraph 112 we see a passage from Palmer v Ayres set out, and then in the second paragraph of the block quote, we see the same thing from the joint judgment in Palmer v Ayres:

A ‘matter’, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding – ‘controversies which might come before a Court of Justice’ -

That point of emphasis is significant in our submission.  Again, just to round out the relevance of Meringnage and this point about the relevance of forum or irrelevance of forum, if I could then refer back to paragraph 139 in Meringnage, where the Court of Appeal referred to Justice Gageler’s reasoning in Burns v Corbett, where Justice Gageler said:

‘[A] ‘matter’ … encompasses a concrete controversy about legal rights existing independently of the forum in which that controversy might come to be adjudicated’.

So, turning then to the third reason why South Australia submits that the respondent’s submission should be rejected.  It is submitted that the premise of the respondent’s submissions, that no Chapter III court could have granted the remedy sought by the respondent in relation to his discrimination claim is incorrect.  South Australia submits that there were and remained Chapter III courts with both jurisdiction to adjudicate the discrimination complaint and power to make orders of the kind sought by the respondent. 

Federal jurisdiction with respect to matters described in sections 75 and 76 have been conferred on various Chapter III courts by sections 30(a), 39B(1A) and 39(2) of the Judiciary Act. The federal jurisdiction so conferred is not limited to the section 109 claim. It extends to all the claims within the scope of the controversy between the parties.

In South Australia’s submission, a Chapter III court exercising federal jurisdiction with respect to a discrimination complaint that formed part of the controversy between the parties would also have power to make orders of the kind provided for in section 89 of the Tasmanian Act. That is so either because the making of such orders would fall within the court’s ordinary powers, including general powers to grant declarations and injunctions, or the particular powers found in section 89 of the Tasmanian Act, picked up by section 79 of the Judiciary Act to be applied in the exercise of federal jurisdiction.

The picking up of those powers would, in our submission, be consistent with the purposes and operation of section 79 as discerned in Rizeq. In this way, section 79 would operate to ensure the conferral of federal jurisdiction in respect of the complaint is effective. For these reasons ‑ ‑ ‑

GAGELER J:   Mr Wait, is this a topic we need enter into for present purposes?

MR WAIT: Your Honour, the reason we put this submission is in rebuttal of the submission put by the respondent that there cannot be a single matter involving both the resolution of section 109 disputes and also the complaint because there is no forum that would be capable of resolving both aspects of the controversy in a single forum.

GAGELER J:   Does not Abebe tell us that the single matter may be broken up into sub‑disputes that get dealt with in different fora without any constitutional issue arising?

MR WAIT:   Your Honour, in Abebe, with respect, your Honour quite correctly identifies that there are passages from the judgment of Chief Justice Gleeson and Justice McHugh to which the respondent draws upon which can be seen…..sit uncomfortably, we say, with other passages that distinguish between the question of the particular forum that may grant remedies and the concept of a matter. 

What we would say with respect to those passages, however, is that that conceptual approach was not the same approach that was adopted by Justices Kirby and Callinan in the Abebe matter.  Rather, Justice Kirby took the approach of suggesting that there was a single matter but that different parts of that matter could be dealt with by different courts, and that was a different approach to that of the Chief Justice and Justice McHugh. 

But I do need to acknowledge, your Honour, that we say that there is a tension in the statement of principles in Palmer v Ayres and the statement in Burns v Corbett itself and some of those statements of principle in the joint judgment in Abebe.  Your Honour, as I say, that was all I had to say on that submission, and the submission is responsive to what we say is an incorrect forum‑based approach to the identification of matter by the respondents.

KIEFEL CJ:   Mr Solicitor, that might be a convenient time for the morning break.  The Court will adjourn for 15 minutes.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

KIEFEL CJ:   Yes, Mr Solicitor?

MR WAIT:   Thank you, your Honours.  I intend now to turn to ground 2.  South Australia submits that the Full Court was correct in deciding that the Tasmanian Act was not inconsistent with the Commonwealth law.  Consistent with the written submissions of the Attorney General of Queensland, South Australia submits that whilst it remains useful to employ the analysis offered by concepts of direct and indirect inconsistency, in the end, determining whether a real conflict exists involves a search for the intention of the Commonwealth law, whether the asserted consistency is said to be direct or indirect.

Intention has long been recognised as being relevant to an assessment of indirect inconsistency.  Further, at least when considering the kind of direct inconsistency raised by the appellant, intention is also relevant.  An orthodox consideration of legislative intention – that is having regard to a law subject to scope and evident purpose will inform whether the Commonwealth law creates significant areas of liberty designedly left.

Accordingly, whether, as the appellant contends, there is direct inconsistency or the Commonwealth contends there is an indirect inconsistency, that question can be resolved by considering whether the Commonwealth law discloses an implicit negative position of exclusivity.

As Justice Aickin explained in Ansett v Wardley in a passage referred to with approval by Justice Gageler in Outback Ballooning, at joint book 12, tab 89, paragraph 71:

“The two different aspects of inconsistency . . . are no more than a reflection of different ways in which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct.  Whether it be right or not to say that there are two kinds of inconsistency, the central question is the intention of a particular federal law.”

The fact that the Commonwealth laws deal with the same topic is plainly insufficient to manifest such an intention.  Although it need not be made express, there must be some positive indication in the text or purpose of the Commonwealth law which grounds an intention to be exclusive.

Starting with the Commonwealth Act, there are a number of features which we submit are simply silent on the question of intention. The “clear the field” provision in section 13(3), when read with this exclusion for the purposes of Part 2, Division 2A, by section 13(3A), is neutral. The facility found in section 31(3) – 31(2)(b) by which a standard may be – expressly permit or exclude the operation of State law is neutral in circumstances where the device has not been employed.

However, consistently with the reasons of three members of this Court in Momcilovic and an indication that standards are not intended to be exclusive may be found in section 13(4).  The appellants submit that section 13(4) does not bear on the analysis, yet the premise of section 13(4) is a State law relating to discrimination may deal with a matter dealt with by a disability standard.  Section 13(4) then provides for an election. 

It is similar to the double jeopardy provisions said by Chief Justice French in Momcilovic to accommodate federal diversity falling short of invalidating inconsistency.  Justice Gummow at paragraph 268 in Momcilovic, with whom Justice Bell agreed at paragraph 660, also attributed significance to this feature.

Whilst election provisions of this kind are by no means decisive of the question of intention they do weigh, at least to an extent, against the discernment of a negative proposition.  The purpose of the Commonwealth law also tends against an intention to exclude compatible State law.  Its purpose articulated in section 3 is to seek to eliminate disability discrimination and the Act is therefore beneficial legislation which, as in Jemena Asset v Coinvest, speaks against exclusivity.

It remains to consider whether the standards themselves is an intention to be exclusive.  The case put for an intention of exclusivity turns on a proposition that the standards provide specific rules constituting a minimum standard which, once met, operate as a shield against a higher broader standard found in the general rule provided for by the Tasmanian Act.

The objects addressed in clause 1.3, on which the appellants and the Commonwealth each rely, disclose no intention of exclusivity.  Subclause 1.3(b) is expressed as promoting certainty in relation to compliance with the Commonwealth Act only and particular weight is placed by the appellants on the references to “cost‑effective and reasonably achievable” in clause 1.3(a).  But those words can, of course, be attributed to the interests of building certifiers, developers and managers.  However, they are also concepts understood as including reference to the interests of persons whom the Commonwealth law is designed to benefit.

That is supported by two textual features.  First, the focus in clause 1.3(a) is a class of persons whom the provision of access is directed, people with a disability.  This may be contrasted with clause 1.3(b) which is directed to the interests of people whose Acts are regulated by the Commonwealth Act.

Second, the other adjectives in clause 1.3(a), namely “dignified” and “equitable”, plainly speak to the interests of a person with a disability and in

that context “reasonably achievable” can be seen as describing form of access for a person with a disability and “cost‑effective” may refer to the costs that a person with a disability might otherwise incur in accessing premises.

Further, to the extent that the concept of “cost‑effective and reasonably achievable” may be understood by reference to the interests of building certifiers, developers and managers, this purpose should not be seen as manifesting an intention to exclude the operation of concurrent State law in circumstances where the protection of interests of these kinds contained in the Commonwealth Act itself by way, for example, of the unjustifiable hardship exception do not give rise to this result by virtue of section 13(3).

The purpose of the standard is not to set a minimum standard from which State laws cannot depart but, rather, to codify how the obligations of non‑discrimination in Part 2 of the Commonwealth Act can be satisfied by specified persons in respect of a specified class of Acts.  Contrary to the appellants’ submission, the standards do not purport other than within the rubric of the scheme provided for by the Act itself to confer any broader privilege or dispensation upon those that comply with them.

The analogies with the cases of Goulden and Dickson fail. In those cases, the rules prescribed by the Commonwealth law in question were held to contain an underlying assumption of liberty to act. It is not possible to evince from the Commonwealth law in the present case an intention that compliance with the standard confers a liberty entitlement or, in the respondent’s language, an immunity to act in a discriminatory manner and, accordingly, section 109 is not engaged.

MR BATT:   Not at all, your Honour, and I do apologise if I have spoken in a way that suggests that that was any proposition I put.  We do not submit that it is so at all.  We say the Tribunal was able to and required to determine its jurisdiction.  To do so, it should have followed the limited course that your Honour has succinctly summarised.  In doing so, it was not exercising judicial power.  That was all that it needed to do, or properly could do.

Having done so, it was incumbent on it, as this Tribunal did, to dismiss the complaint for wont of jurisdiction, and what I had sought to expose was that further inquiries relating to whether if a putative tribunal did look to the merits to decide its jurisdiction would that be an exercise itself of judicial power is a separate and further matter on the resolution of which our case does not depend.  All that I have sought to put in these last moments is intended to be, and as we would have it, is consistent with how we argued the matter orally in‑chief and have put it in writing.

Your Honours, can I turn briefly to four short points in respect of the respondent’s submissions?  They are most conveniently articulated by reference to the respondent’s outline of oral argument which was provided to the Court recently, and if your Honours were able to bring that up it would be a convenient way by which to proceed, especially in circumstances, your Honours, where we would respectfully suggest that there is a degree of variance between the respondent’s written submissions and the propositions contained in this document and put orally.

The first point relates, your Honours, to the test which the respondent says is to be applied in relation to whether a federal matter truly arises, the colourability or wider question, and in particular it relates, your Honours, to paragraphs 5 and 7 of the outline document.  Your Honours will see in paragraph 7 that the proposition is expressed:

The degree of unarguability –

that is to say the required degree of unarguability:

is a matter of verbal formulae only.

With respect, that is to understate the matter and its significance.  What formula is adopted is obviously a point of significance which will alter outcomes.  If your Honours then would work backwards to numbered paragraph 5 of the same document, your Honours will see that our learned friends moved here to reference to – this is line 3:

claims foredoomed to fail -

a phrase that also is seen in the heading at the top of the last page of the document.  A test, your Honours, of whether a claim or defence is foredoomed to fail is a different and separate formulation upon which the respondent seems now to have alighted, quite different from that espoused in his written submissions, vis, no reasonable prospect of success. 

Then, your Honours, we record at one point orally in answer to a question from Justice Steward, our learned friend for the respondent, as we heard him, seemed instead to embrace as the relevant test, at least in tribunals if not in federal courts, the language seen in section 99(2)(a) of the Anti‑Discrimination Act which refers to claims that are “misconceived”, hopeless, frivolous, or the like, to wit a different test again and we would submit plainly too wide. 

Your Honours, we – critically, from our client’s perspective – emphasise a submission that, whatever be the right formulation, here, the section 109 defence pleaded in the Tribunal in this matter was not such as to be caught by any of the formulations. In that respect, your Honours, we would add this if we may. In deciding, and insofar as your Honours do decide ground 2, which relates to the substance or validity of a section 109 defence, your Honours would, insofar as your Honours do so, reach a view on that defence.

We would respectfully urge upon the Court that to form – if this is what were to occur – a negative view about the validity of that defence, even perhaps a clear view of that nature, would be a very different thing from concluding that any of tests propounded as to federal jurisdiction arising in their various different formulations would have been satisfied. 

Our next reply point is this your Honours. It relates to paragraph 8 of the outline of oral argument. Your Honours will see that in paragraph 8 what is put is that the Full Court should be taken to have concluded that the section 109 defence should have been summarily dismissed. Well, first, what matters is the approach that this Court considers is correct and the outcome of applying that approach. But lest the matter be confused, we seek to make clear in reply that in no way can it properly be taken that the decision of the Full Court was to the effect that the defence should have been summarily dismissed.

First as to Justice Estcourt - a fair reading in our submission of his Honour’s judgment and especially the concluding paragraphs from 93 to 103, particularly 102 – found at appeal book pages 52 to 54, reveal that that is not what his Honour decided or how his Honour reasoned.   But in any event, of course, as your Honours know, his Honour’s reasons were not the plurality judgment.  Rather that was given by the Chief Justice with whom Justice Wood relevantly agreed.  As Chief Justice Blow made explicit in the opening paragraphs of his reasons at paragraph 3, page 28:

I agree with [Justice Estcourt] that the appeal should be allowed . . . but I respectfully differ as to the reasons for that result.

So, the plurality judgment had its own reasons – those of the Chief Justice – and as I sought to convey to your Honours, and I took your Honours through this in‑chief, it is plain from the Chief Justice’s reasons that he decided on the substantive merits, as he viewed them, of the defence and in no way applied a summary dismissal approach. 

His Honour did use the word “misconceived” at one point in paragraph 5, but plainly in context he meant the defence fails. It was in no way an allusion to section 99(2)(a) in the State Act which provides a summary dismissal for reasons that include misconceived claims, and his Honour nowhere referred to that provision.

Your Honours, the further reply point relates to paragraphs 9 through 10 of the outline of oral argument document and the oral submissions put by our learned friend in support of it, namely, the contention that properly analysed it is to be thought that there were two matters present in the Tribunal proceeding as constituted on its pleading, namely, the complaint under section 109 defence, that is to say, a contention by the respondent that the section 109 defence was no part of the matter that the complaint comprised but was a separate matter in constitutional terms.

We submit that is plainly not right. The point is dealt with in some detail in the written submissions of South Australia at paragraphs 15 to 20, which we would adopt. But, in short, your Honours, we submit that, on any view, the section 109 defence arose from a common substratum of facts, common to the facts giving rise to the complaint, and that it clearly was not, to quote Fencott v Muller at page 607 to 608, it plainly was not – the defence that is ‑ completely “separate and distinct” in the manner the authorities would require.  To the contrary, the defence plainly was an answer to the claim and, thus, inextricably linked to it. 

So, we say there was but the one matter but, in any event, even if it was otherwise the consequences our learned friends sought to draw from that, with respect, do not follow.  As we understood the argument, two elements were involved.  One is that it seemed to be said that this Tribunal faced with that position, that putative position that there be two matters, should have adjourned the proceeding for the federal matter, the separate federal matter it said, to be determined in a Chapter III court.

Now, your Honours, apart from the premise of the point being invalid we have set out – and I will not for a moment repeat it but just give your Honours a reference – we have set out in our reply written submissions at paragraph 15 why it is that the respondent’s own conduct of the Tribunal proceeding precludes that point being taken or taken with any…..by the respondent.  In short, the respondent’s counsel urged against that course in the Tribunal.

At the level of concept, separately and secondly, as we understood our learned friend, Mr Merkel, the argument was that if it is not concluded that there were two separate matters, and there was indeed but one matter as we say, then it is said that the consequence of that would be…..the complainant was left with no jurisdiction in which he could have proceeded and it said, we apprehend, that that militates against the very construction.

With great respect, that is not the consequence of the submission, and that is so for a couple of reasons. Most obviously so because plainly even if there were but one matter it was possible for a Chapter III court to determine the section 109 defence, and then, as your Honour Justice Gordon we took to have raised with our learned friend, Mr Merkel, it was then open, that having occurred, for the complainant to proceed by a fresh complaint if the defence had been determined in his favour in the Chapter III court.

But we would go further and submit that there was no reason why the Federal Court could not have entertained both an argument about the section 109 defence and contentions of a breach of the State Act and granted injunctive and declaratory relief, the relief sought by the complainant in this matter as I took your Honours to, that would be within the jurisdiction and authority of the Federal Court. So, we say, your Honours, that the submission of two separate matters is plainly wrong and, in any event, what is said to follow from it is also unsound.

Finally, your Honours, we deal with – and this is not a matter in respect of which I need to allude to the outline of oral submissions for the respondent, but rather which has arisen in the course of argument from the respondent and the exchanges with the Bench, which is the notion of the disability standards here imposing what had been referred to as minimum requirements. 

Care, we would respectfully suggest, is needed with the term as we intended to use it and perhaps we were a little imprecise, and for that we apologise.  But as we intended to use it, and as we take the Commonwealth submissions to have intended to use it, the term is used to convey that it is the positive performance levels which the standard requires must be weak.  The minimum is the mandate of meeting the positive levels of access – although I specified in the standards how be it that the relevant building developer or manager might go further and provide better access or the like and is not prohibited from going further. 

Now, in that regard, your Honours, conscious of the time of day and the lengthy argument, could we refer please to volume 17 of the authorities at tab 125, in which is found the explanatory statement for these standards and ask your Honours to pick up page 6548.  Lest I have gone too fast over the ether I will be clearer – volume 17, tab 125, page 6548, where your Honours will see at about point 4 of the page at paragraph 49 and your Honours will see it stated:

Premises Standards provide minimum standards:  The Premises Standards do not prohibit someone from providing a greater degree of access than stipulated in the Deemed‑to‑Satisfy Provisions.  For example, a building developer or manager may provide more accessible rooms in a motel, or accessible car parking spaces in a car park than required -

Now, the point we seek to draw out is this.  When one says the minimum, one is really saying one must reach these performance levels or the deemed‑to‑satisfy criteria that are said to satisfy the performance requirements.  One may go further, that is to say, positively provide better access or better facilities, but one does not need to.  The minimum is not a reference to a minimum prohibition, which may be affected by a greater prohibition.  It is a positive matter.  So, the term is not being used to refer to a minimum scope of prohibited conduct, and thereby it is not being used to convey that the State legislation might proscribe a wider ambit of conduct extending beyond what the standards prohibit.  The standards do not prohibit, they express positive levels that are to be met.

STEWARD J:   Mr Batt, I am sorry to interrupt you.  Do you rely as part of your case in this area at all upon the fact that the standards appear in a code – a building code which is to apply throughout Australia and has been enacted by every State and the Commonwealth?

MR BATT:   Your Honour, could I seek to answer that question, and I am sure your Honour will indicate if what I do does not answer it, but could I seek to, in answer to that question, what I had been immediately about to come to which is to take the Court to the following, which is the very set of material that arose – your Honour Justice Steward – in response to a question that you, your Honour asked, of our learned friend, Mr Merkel. 

What I am alluding to is in fact matters that are raised by the respondent himself in his written submissions at paragraphs 63 through to 66.  I am sorry to move to separate papers in this fashion, but I think, if may say, your Honour, that this will answer your question.  It is a point I wanted to finish my reply submissions on.  If it does not answer of course I will seek to assist the Court further. 

If one has to hand the respondent’s written submissions, and at page 19 of them, paragraphs 62 and following, one sees at the top of that page the heading “Third ground”.  Now, that is a reference to the third ground in the respondent’s initial notice of contention, a ground which was abandoned or said today not to be pressed. 

But your Honour Justice Steward asked our learned friend about some matters raised in these submissions, and our learned friend was perhaps, quickly appreciating their purport, was quick to emphasise that this ground had been abandoned, but the submissions are there, and we say that they are revealing and of assistance to the analysis on the section 109 question. Your Honour Justice Steward, what is dealt with here does include the existence of the code and the Building Act, about which your Honour asked.

Could I seek to make the point and take the Court at paragraph 66, one page over, and your Honours will see – admittedly this is put in the context of the point that ground 3 of the notice of contention raised – but your Honours will see at the end of paragraph 66 that the respondent himself says:

The imposition of the Standards –

and here the context is in respect of the Building Act, but we would say in the context of the section 109 inquiry:

would make little sense, and indeed it would introduce incoherence, if each such entry –

that is an accessway:

could be examined separately for compliance with –

the provisions of the State Act as from the standards.  So the point, Justice Steward, we seek to make is that, as the respondent himself exposes

here, there are particular requirements of the standard.  There is a national scheme which replicates them, in effect, in a State sense, and the respondent himself is saying with all that being the case it would make little sense if the general requirements of the State Act were visited upon those requirements, and we say exactly.  I trust that assists your Honour.

STEWARD J:   Thank you, Mr Batt, yes.

MR BATT:   Thank you, your Honour.  That was the submission upon which we had intended to conclude, so unless there is anything further the Court would ask of us those are our reply submissions.  May it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Batt.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for the pronouncement of orders and otherwise until 10.00 am.

AT 3.42 PM THE MATTER WAS CONCLUDED