State Tribunals are not Courts and cannot exercise Judicial Powers.

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In the matter of AB v CD [2020] QCAT 295 Adjudicator Alan Walsh found that QCAT (as well as other State tribunals) lacked power to exercise Federal Jurisdiction and to hear this matter having regard to sections 104, 113, and 113A’ of the Child Support (Registration and Collection Act) 1988 (Cth) and the application was dismissed for lack of jurisdiction.
Adjudicator Alan Walsh provided the following on the matter of jurisdiction:
  1. The Queensland Civil and Administrative Tribunal (QCAT) is a creature of Queensland statute and of limited jurisdiction. It is not a Court of inherent or general jurisdiction. As I said in Fisher v Wenzel & Anor [2016] QCAT 456 at [41] on High Court authority,2 a Tribunal order made beyond jurisdiction is a complete nullity and binds no-one.
  1. QCAT is not a court within the meaning of s 113(1)(c)(i) CSRACA
  2. [38]  This Tribunal is not, in my respectful opinion, a “court” as defined or referred to in the Judiciary Act 1903 (Cth), the Child Support (Registration and Collection) Act 1988 (Cth), the Acts Interpretation Act 1901 (Cth), the Service and Execution of Process Act 1992 (Cth) and the Service and Execution of Process Regulations 2018 (Cth).
  3. [39]  The point was not raised in submissions19 to the Queensland Court of Appeal in Owen v Menzies because it was there primarily concerned with the interpretation of the QCAT Act and the Anti-Discrimination Act 1991 (Qld), not with CSRACA.
  4. [40]  It is necessary in the present matter to ascertain the intention of the federal legislature in providing that a child support debt may be recovered by a payee in a court having jurisdiction for recovery of debts up to the amount claimed.
  5. [41]  There is nothing in the explanatory memoranda to CSRACA and amending legislation in original Bill form or in the provisions of CSRACA itself, for example section 104(2) investing State courts of summary jurisdiction with federal jurisdiction, to suggest or permit the interpretation that “a court” for the purposes of CSRACA means or includes a State Tribunal held by a State Court to be a court for the purposes of Chapter III of the Australian Constitution.
  6. [42]  There is nothing in section 39(2) of the Judiciary Act 1903 (Cth) or any of its other provisions that would permit the interpretation that “courts of states” invested with federal jurisdiction within the limits of their several jurisdictions includes, and must be taken to mean and include, State Tribunals held by State Courts to be courts with diversity jurisdiction for purposes of Chapter III of the Australian Constitution.
  1. [47]  I know of no case law in Australia that would support the conclusion that Members (other than Judicial Members) and Adjudicator/s of State Tribunals such as the Queensland Civil and Administrative Tribunal are, by their office, judges of courts of States.
  1. [63]  By contrast, the same lack of Tribunal tenure of Members of the Victorian Civil and Administrative Tribunal (VCAT) and the New South Wales Civil and Administrative Tribunal (NCAT) has been held decisive by the Courts of Appeal of Victoria and New South Wales in finding that they are not Chapter III courts.
  2. [64]  In Meringnage v Interstate Enterprises Pty Ltd & Ors [2020] VSCA 30 (Meringnage) the Victorian Supreme Court of Appeal found that that VCAT is not a State Court and that it therefore lacks federal diversity jurisdiction enabling it to decide disputes between residents of other States.
  1. [66]  In Burns v Corbett [2018] HCA 15 (Burns), a majority of the High Court of Australia (Kiefel CJ, Bell, Gageler and Keane JJ) held that Chapter III of the Commonwealth Constitution impliedly limits State legislative power and that State Parliaments have no power to confer judicial power with respect to matters in sections 75 and 76 on State Tribunals that are not courts.
  2. [67]  The High Court in Burns held that the Civil and Administrative Tribunal of New South Wales (NCAT) did not have diversity jurisdiction to hear matters between residents of different States.

 

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