Mr Meringnage applied to the Victorian Civil and Administrative Tribunal (VCAT) for orders under the Equal Opportunity Act 2010 (Vic) against three parties — a recruitment agency, a defence technology company and the Commonwealth. The Commonwealth sought to be removed as a party to the application, on the basis that VCAT lacked jurisdiction to make the orders sought against the Commonwealth.
That objection was founded on the decision in Burns v Corbett (2018) 92 ALJR 423, in which the High Court held that a body that is not a “court of a State” within the meaning of Ch III of the Constitution cannot exercise judicial power in matters within the scope of ss 75 and 76 of the Constitution (being matters in “federal jurisdiction”). A matter in which the Commonwealth is a party is a matter within s 75(iii) of the Constitution.
VCAT referred three questions of law to the Court of Appeal. The first question was whether VCAT was a “court of a State”. The Court answered that question “no”. The second question was whether the orders sought by the applicant involved an exercise of judicial power. The Court answered that question “yes”. The final question was whether, in light of the answers to the first two questions, VCAT had authority to decide the application against the Commonwealth. The Court answered that question “no”.
The outcome has important consequences for VCAT’s jurisdiction. The answer to the first question means that VCAT cannot exercise judicial power in any of the matters identified in ss 75 and 76 of the Constitution. That includes matters between residents of different States (s 75(iv) — as in Burns v Corbett), matters in which the Commonwealth is a party (as in Mr Meringnage’s case), and matters in which a federal defence is raised (s 76(ii) — as in Qantas Airways v Lustig (2015) 228 FCR 148).