Challenges to the operation of the Victorian Civil and Administrative Tribunal

Recent decisions from various tribunals and courts have changed the operation of the VCAT. The cases of Burns v Corbett and Meringnage v Interstate Enterprises Pty Ltd (“Meringnage”) confirmed that the VCAT does not have the jurisdiction to hear ‘federal matters’, thus limiting the scope of matters it can determine.¹

Burns v Corbett has created, at large, jurisdictional challenges to tribunals.² The High Court held by a majority decision that an implied limitation existed in the Constitution that prevents state parliaments from vesting jurisdiction over ‘federal matters’ in state tribunals.³

From an academic perspective, there are numerous consequences of the Burns v Corbett decision. One noteworthy effect is that the decision is not a total limitation of state tribunals’ exercise of state judicial power, only a limitation in relation to ‘federal matters’.⁴ ‘Federal matters’ are defined in ss 75 and 76 of the Australian Constitution and are made up of nine subject matters or ‘heads of jurisdiction’.⁵ Another point of interest is that Burns v Corbett did not consider the question of whether the relevant tribunal (in this case, the New South Wales Civil and Administrative Tribunal (“NCAT”)) was a ‘court of a State’ under Chapter III of the Australian Constitution, as the parties had accepted it was not.⁶ The New South Wales Court of Appeal has since held that the NCAT is definitively not a ‘court of a State’ for the purposes of Chapter III of the Australian Constitution.⁷ In contrast, the Queensland Civil and Administrative Tribunal has been considered a ‘court of a State’ for the purposes of Chapter III.⁸ Therefore, the unresolved question in Burns v Corbett is being decided inconsistently across states.⁹ Victoria’s response to the decision lies in Meringnage, which confirmed that the VCAT is not a ‘court of a State’.

Meringnage saw the Victorian Court of Appeal apply the Burns v Corbett decision in Victoria, explicitly limiting the VCAT’s jurisdiction and ability to hear any ‘federal matters’.¹⁰ This limitation has now been enshrined in legislation with the Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act (“VCAT Amendment Act”).¹¹ The practical effect of these decisions is outlined on the VCAT’s website, which states it cannot decide cases where ‘the parties are residents of different Australian states’ or ‘the Commonwealth of Australia is a party’.¹² The limitation of jurisdiction affects many lists, including the building and property list, residential tenancy or anti-discrimination disputes.¹³ Until the VCAT Amendment Act, it was unclear where those matters which had previously been exclusively dealt with by the VCAT and were now excluded from the VCAT’s jurisdiction should be heard and what the process involved.¹⁴It is now apparent that the case will be discontinued by a Member at the VCAT (often on the application of the party who resides outside of Victoria) and then must be refiled in the appropriate court by the Applicant.

There are some oddities in the challenges to the VCAT’s jurisdiction that result from the Supreme Court’s strict textual reading of the Australian Constitution in Meringnage. While it disallows the VCAT from hearing matters between residents of different states, any matter between a resident of Victoria and a territory or overseas resident can still be heard.¹⁵ This is despite an ultimate finding that the organisational features of the VCAT (such as its establishment as a tribunal instead of a court, its decision makers being members instead of judges and its tenure and functions), restrict it from exercising judicial power in relation to federal matters.¹⁶

This article is an excerpt from the author’s Honours thesis titled ‘Trouble in the Tribunal: Examining the recent challenges to the operation of the Victorian Civil and Administrative Tribunal’ and completed at La Trobe University.

Footnotes

1. Burns v Corbett [2018] HCA 15 (‘Burns v Corbett’); Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30 (‘Meringnage’). ↩

2. Burns v Corbett (n 1). ↩

3. Australian Constitution. ↩

4. Azaara Perakath, ‘Burns v Corbett (2018) 353 ALR 286 Tribunals and Tribulations: Examining the Constitutional Limits on the Jurisdiction of State Tribunals’ (2019) 4 Adelaide Law Review 587, 593. ↩

5. Australian Constitution ss 75 & 76; Callum Christodoulou, ‘Burns v Corbett: Federal Jurisdiction, State Tribunals and Chapter III Courts’ (2020) 42(3) Sydney Law Review 353. ↩

6. Burns v Corbett (n 1) 398 [39]. ↩

7. Perakath (n 6) 595 citing A-G (NSW) v Gatsby (2019) 361 ALR 570, 603 – 4 [184] – [190] (Bathurst CJ), 606 [201] (McColl JA). ↩

8. Ibid 595. ↩

9. Ibid 595. ↩

10. Meringnage (n 1). ↩

11. Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 (Vic) (‘VCAT Amendment Act’). ↩

12. Victorian Civil and Administrative Tribunal, ‘Court decision affects the kinds of case VCAT can decide’ (Web Page, accessed 25 February 2023) https://www.vcat.vic.gov.au/news/court-decision-affects-kinds-cases-vcat-can-decide. ↩

13. . Perakath (n 4) 587. ↩

14. . VCAT Amendment Act (n 11). ↩

15. Victorian Civil and Administrative Tribunal (n 12). ↩

16. Greg Reinhardt, ‘Whether VCAT can exercise Commonwealth judicial power?’ (2020) 94(4) Law Institute Journal 54-55, 54. ↩

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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