Burns v Corbett: Courts, tribunals, and a new implied limit on state legislative power


In Burns v Corbett, the High Court unanimously held that State tribunals that are not State courts cannot exercise judicial power with respect to any of the classes of matters listed in ss 75 and 76 of the Constitution. This is an important limit on the capacity of the States to provide for the exercise of judicial power by non-court tribunals, and resolves an issue about which there was previously conflicting authority. (See, eg, Attorney-General (NSW) v 2UE Sydney Pty LtdQantas Airways Ltd v LustigCommonwealth v Anti-Discrimination Tribunal; and the decision of the Court of Appeal of NSW in Burns v Corbett).

The decision has significant ramifications for the design of State tribunals. If States choose to confer judicial power on their tribunals, there will be certain matters that will necessarily remain beyond those tribunals’ jurisdiction. For example, such a tribunal could not hear an anti-discrimination claim involving residents of different States – the kind of matter in issue in Burns v Corbett – as that is the kind of matter referred to in s 75(iv) of the Constitution.

As will soon be apparent, there is a good deal of complexity in the reasons given for this decision and in the underlying constitutional concepts. The justices of the High Court have provided us with a smorgasbord of interesting judgments.

It is not possible to deal exhaustively with all the issues in a blog post such as this. This post discusses some of the key constitutional provisions and concepts, and the important divergences in the reasoning between the justices in explaining why State tribunals cannot exercise jurisdiction in matters of the kinds identified in ss 75 and 76.

An important divergence in the reasons for reaching the same result

A majority of the Court, comprising Kiefel CJ, Bell, Gageler and Keane JJ, held that Chapter III of the Commonwealth Constitution contains an implied limit on State legislative power: State Parliaments have no power to confer judicial power with respect to the matters in ss 75 and 76 on non-court State tribunals.

The remaining justices (whom I shall refer to as “the minority”, despite their agreement with the orders proposed by the majority), comprising Nettle, Gordon and Edelman JJ, held that, while State Parliaments did not lack legislative power to confer such jurisdiction on non-court State tribunals, the operation of State laws which purported to do so was excluded by a law of the Commonwealth Parliament — s 39(2) of the Judiciary Act 1903 (Cth) — which invests federal jurisdiction in State courts. The minority held that the Commonwealth Parliament, by enacting s 39(2), had evinced an intention that the only bodies capable of exercising judicial power in matters of the kinds listed in ss 75 and 76 of the Constitution should be Federal courts and State courts. For Nettle and Gordon JJ, a State law which conferred judicial power on non-court State tribunals in respect of matters of those kinds was inconsistent with the Commonwealth law, and so is invalid by operation of s 109 of the Constitution. For Edelman J, ss 38 and 39 of the Judiciary Act operated directly to exclude the jurisdiction of State courts.

Some relevant constitutional provisions and concepts

Section 75 of the Constitution confers original jurisdiction on the High Court of Australia in all matters of the five kinds there listed, while s 76 empowers the Commonwealth Parliament to make laws conferring original jurisdiction on the High Court in matters of the four kinds identified in that section. The term “jurisdiction” is used in the Constitution to refer to the “authority to decide” in the exercise of judicial power or, as Kiefel CJ, Bell and Keane JJ referred to it in Burns v Corbett, “authority to adjudicate”.

Each of the paragraphs of ss 75 and 76 identifies what might be called a “federal element” — a characteristic which might be thought to make it appropriate for adjudication by an independent federal judiciary. The classes of matters listed in ss 75 and 76 were referred to by Quick and Garran

as “matters of specially federal concern” (at ¶288). This is not a technical term; just a shorthand way of explaining why those matters were selected for inclusion in ss 75 and 76.However, there is an important distinction between exercising any jurisdiction in “matters of specially federal concern”, and exercising “federal jurisdiction”. “Federal jurisdiction” is a technical term, and it refers to the authority to decide which is conferred by the Commonwealth Constitution or by laws of the Commonwealth. By contrast, “State jurisdiction” is jurisdiction conferred by State law (Baxter v Commissioner of Taxation (NSW) at 1141; CGU Insurance Ltd v Blakeley at 349 [24]). Putting aside the appellate jurisdiction of the High Court, federal jurisdiction is limited to the matters identified in s 75 and 76. State law could also include jurisdiction in some of these kinds of matters (eg, matters involving suits between residents of different states, and matters arising under the Constitution).

The provision which is critical to the resolution of the issues raised in Burns v Corbett is s 77 of the Constitution. It provides:

With respect to any of [the kinds of matters identified in ss 75 and 76], the [Commonwealth] Parliament may make laws:

(i) defining the jurisdiction of any federal court other than the High Court;

(ii) 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;

(iii) investing any court of a State with federal jurisdiction.

It will be observed that s 77 says nothing in its terms about tribunals that are not Courts.

Sections 38 and 39 of the Judiciary Act were enacted pursuant to ss 77(ii) and (iii) of the Constitution. Sections 38 and 39 exclude the jurisdiction of State courts in relation to federal matters, and then (by s 39(2)) invest State courts with federal jurisdiction over those matters, subject to various conditions and restrictions (see Burns v Corbett at [24]-[25]).

The majority — reasoning of Kiefel CJ, Bell and Keane JJ

The joint judgment of Kiefel CJ, Bell and Keane JJ emphasised the exhaustive nature of Chapter III of the Constitution in various respects, and the negative implications that had been held to arise from it. The majority acknowledged that s 77(ii) itself “recognises the possibility that, absent Commonwealth legislation excluding the adjudicative authority that otherwise belongs to the State courts, that authority may continue to be exercised by those courts” (at [41]). However, the same was not true of non-court State tribunals.

Their Honours (at [45]) considered that:

the approach to the interpretation of Ch III, whereby the statement of what may be done is taken to deny that it may be done otherwise, is also apt to deny the possibility that any matter referred to in ss 75 and 76 might be adjudicated by an organ of government, federal or State, other than a court referred to in Ch III.

Chapter III expressly contemplates the exercise of adjudicative authority with respect to federal matters by:

  1. the High Court, exercising the (federal) jurisdiction conferred on it by the Constitution (s 75);
  2. the High Court, exercising the (federal) jurisdiction conferred on it by laws of the Commonwealth Parliament; (s 76);
  3. other federal courts created by the Parliament, exercising the (federal) jurisdiction conferred on them by laws of the Commonwealth Parliament (s 77(i));
  4. the courts of the States, exercising the (State) jurisdiction that otherwise belongs to them under the laws of the States (s 77(ii)); and
  5. the courts of the States, exercising the (federal) jurisdiction invested in them by the Commonwealth Parliament.

The majority considered that Ch III must be taken to be an exhaustive statement not only of the adjudicative authority of State courts but of any organ of government, federal or State. An important structural consideration supporting this conclusion was the scheme of appeals from State courts exercising federal jurisdiction, subject only to exceptions and regulations prescribed by the Commonwealth Parliament (see Burns v Corbett at [19], [49], [68], [70], [97]-[98]). That scheme would be undermined if States could invest judicial power in tribunals from which no appeal necessarily lay to a State court.

Kiefel CJ, Bell and Keane JJ held that they did not need to consider the s 109 inconsistency issue, because the question of whether an implication was to be drawn from Ch III was “logically anterior to any question as to the power of the Commonwealth Parliament to override such a conferral of adjudicative authority by a State Parliament” (at [4]).

The majority — additional reasoning of Gageler J

Gageler J, the other member of the majority, expressed general agreement with the conclusions of Kiefel CJ, Bell and Keane JJ, and “substantial” agreement with their Honours’ reasoning (at [69]). In contrast to the joint judgment, however, Gageler J explicitly considered the s 109 inconsistency argument first.

Gageler J’s judgment contains an instructive analysis of the operation of s 109 of the Constitution, particularly where it is suggested that a Commonwealth law impliedly excludes State laws within a particular field (at [80]-[93]). Gageler J explained that, in order for an inconsistency to arise between s 39(2) of the Judiciary Act and a State law conferring jurisdiction over ss 75 and 76 matters on a non-court State tribunal, the Commonwealth law must first be taken to legislate exhaustively within a particular “universe”. Whether it could do so depended upon the scope of the legislative power conferred on the Commonwealth Parliament.

Gageler J held that 39(2) of the Judiciary Act could not have a “negative penumbra” excluding jurisdiction from non-court State tribunals, because s 39(2) was enacted pursuant to s 77(iii) of the Constitution, and ss 77(ii) and (ii) referred only to State courts (at [93]). His Honour thus concluded that the Commonwealth Parliament had no power “to exclude the adjudicative authority of non-court State tribunals”.

For Gageler J, this conclusion strengthened the structural considerations in support of the Ch III implication, because it meant that “that question falls to be considered against the background of an absence of Commonwealth legislative power to achieve the same result”. If the Ch III implication were not drawn, there would be “a hole in the structure of Ch III” and “[t]he Commonwealth Parliament would have no capacity to plug it” (at [95]). If the Commonwealth Parliament had had power to exclude the jurisdiction of non-court State tribunals, then it might be said that the Ch III implication was unnecessary because — consistently with the apparent purpose of s 77(ii) and not inconsistently with the structure of appeals to the High Court under s 73 being subject to exceptions prescribed by the Commonwealth Parliament — the Commonwealth Parliament retained control over the organs capable of exercising judicial power in ss 75 and 76 matters.

The minority — reasoning of Nettle, Gordon and Edelman JJ

The minority justices, Nettle, Gordon and Edelman JJ, in three separate judgments, declined to recognise an implication from Ch III concerning State tribunals. Nettle and Gordon JJ each pointed out that the terms of s 77(ii) itself recognised that some state bodies (namely, State courts) could possess jurisdiction with respect to the matters identified in ss 75 and 76. As Gordon J neatly put it, “it follows that ‘federal control’ over jurisdiction in relation to [ss 75 and 76 matters] is not pre-ordained by the Constitution, whether in s 77 or elsewhere” (at [179]). Moreover, each of them pointed out that, historically, non-court State tribunals had exercised judicial power.

The minority justices also found that the Commonwealth had, by enacting s 39(2) of the Judiciary Act, evinced an intention to exclude non-court State tribunals from adjudicating ss 75 and 76 matters; and that it had legislative power to do so. As to the source of that Commonwealth legislative power, each of the minority judges took a different view.

Nettle J held that the power in s 77(iii), to invest the courts of the States with federal jurisdiction over ss 75 and 76 matters, carried with it an implied incidental power to exclude the jurisdiction of State tribunals (at [139]-[141]). This power was to be implied for essentially the same structural reasons that the majority referred to in support of the Ch III implication. It was necessary to avoid a situation where the Commonwealth Parliament was powerless to prevent non-court State tribunals exercising judicial power outside the integrated judicial system which Chapter III was intended to allow the Commonwealth Parliament to create.

Gordon J regarded ss 77(ii) and s 77(iii) together as supporting a law which provided, in effect, that only one or more of the courts identified in Ch III could deal with ss 75 or 76 matters (or some such matters) (at [195]). Her Honour also placed reliance upon the express incidental power in s 51(xxxix) (at [196]).

Edelman J considered that the power to exclude the jurisdiction of non-court State tribunals arose not as an incident of the power in s 77(iii) but rather as an aspect of the power in s 77(ii), to make exclusive the jurisdiction of any federal court (at [219]-[223]. Edelman J observed that the notion of “exclusive” jurisdiction usually connoted “jurisdiction exclusive of all other authority” (at [221]). However, that notion of exclusivity is difficult to square with the words used in s 77(ii) itself: “exclusive of that which belongs to or is invested in the courts of the States”. Edelman J, recognising this difficulty, relied on the drafting history of s 77(ii) to argue that it was intended to enable the Commonwealth Parliament to exclude the otherwise-concurrent jurisdiction of all State bodies in ss 75 and 76 matters (at [221]-[223]). Edelman J considered that this was simply a direct exercise of the power in s 77(ii) to exclude State jurisdiction, and so there was no need to invoke s 109 of the Constitution (at [208], [254]).

In substance, this appears to amount to reading the words “jurisdiction … which belongs to or is invested in the courts of the States” as meaning not the actual authority to adjudicate exercisable by State courts themselves, but jurisdiction of the kind that belongs to or is invested in the courts of the States. On this construction, the expression “which belongs to or is invested in the courts of the States” is treated as a long-hand way of describing all jurisdiction conferred on any body by State law. If that is what was intended, however, it is difficult to see why s 77(ii) should make reference to “courts of the States” at all; it might simply have said “State jurisdiction”, “non-federal jurisdiction” or “jurisdiction conferred by State law”. Moreover, the descriptive expression “belongs to or is invested in” seems more apt to describe the actual jurisdiction capable of being exercised by courts than a generic kind of jurisdiction.

It is suggested that a significant difficulty with relying (as Nettle and Gordon JJ did) upon any “incidental” power, whether express or implied, as a source of Commonwealth legislative power to exclude jurisdiction from non-court State tribunals, is that it would seem to allow the Commonwealth Parliament to enact a law that appears to exceeds the express limit of the power conferred by s 77(ii), namely to exclude the jurisdiction of State courts. Edelman J’s reasons did address this problem, but only by adopting what seems a rather strained approach to the construction of the text of s 77(ii). (It may be noted that Gageler J (at [76]) also considered, but rejected, that approach.)

A brief observation about the Kable doctrine in light of the majority reasoning in Burns v Corbett

The implication recognised by the majority in Burns v Corbett potentially has some relevance to the Kable doctrine. The Kable doctrine has previously been justified on the unsatisfactory basis that State courts must remain “fit receptacles for the investing of federal jurisdiction”, so that they cannot be given functions “incompatible with [their] role as a repository of federal jurisdiction”. (See, eg, Forge v Australian Securities and Investments Commission at 82 [82]; Attorney-General (NT) v Emmerson at 424 [40].)

However, as noted above, the concept of “federal jurisdiction” is concerned with the source of adjudicative authority, not the substantive nature of jurisdiction being exercised. The holding in Burns v Corbett, to the effect that only the judicial organs identified in Ch III may exercise jurisdiction in the “matters of specially federal concern” in ss 75 and 76 of the Constitution, allows the functional justification for the Kable doctrine to be repositioned slightly. Rather than the need to be “fit repositor[ies] for federal jurisdiction”, it can now be said that, given their special position in Ch III of the Constitution, State courts (but not necessarily non-court State tribunals) must retain their independence and institutional integrity so as to remain suitable organs to exercise judicial power in relation to “matters of specially federal concern”, irrespective of the source of jurisdiction.


The decision in Burns v Corbett, while reaffirming that there is no generalseparation of judicial power at the State level, has effectively extended the separation of judicial power in relation to matters of federal concern (the matters listed in ss 75 and 76 of the Constitution) to the States. It is now clear that Ch III of the Constitution exhaustively identifies the bodies that can exercise jurisdiction (authority to decide in the exercise of judicial power) in respect of such matters, namely federal and State courts.

It remains to be seen how State tribunal design will respond to this development.


Stephen McDonald is a barrister at Hanson Chambers who practises constitutional and administrative law, and an Adjunct at the University of Adelaide Law School

Suggested citation:  Stephen McDonald, ‘Burns v Corbett: Courts, Tribunals, and a New Implied Limit on State Legislative Power’ on AUSPUBLAW  (7 May 2018) <https://auspublaw.org/2018/05/burns-v-corbett-courts-tribunals/>

Author: Garry Burns

Gary Burns is an Australian anti-discrimination campaigner. He successfully tested the homosexual vilification provisions of the NSW Anti-Discrimination Act 1977 with a complaint of personal homosexual vilification against broadcaster John Laws and Sydney radio station 2UE that concluded in his favour in 2002.[1] Burns went on to front public interest cases against high profile figures and media establishments for unlawful homosexual vilification.

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