Anti Discrimination: standing

Owen v Menzies [2012] QCA 170

JUDGES:

Chief Justice and Margaret McMurdo P and Muir JA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDERS:

In Appeal No 7138 of 2011:
The application for leave to amend the case
stated is refused.
1. Were the proceedings in the Anti-Discrimination
Tribunal an impermissible exercise by the tribunal of
the judicial power of the Commonwealth under
Chapter III of the Commonwealth Constitution?

Unnecessary to decide.
2. Is section 212 of the Anti-Discrimination Act 1991,
providing for the registration and enforcement of
orders of the Anti-Discrimination Tribunal,
inconsistent with Chapter III of the Commonwealth Constitution, and therefore invalid, so far as it
purports to apply in these proceedings?

Unnecessary to decide.
3. Is section 124A of the Anti-Discrimination Act 1991
inconsistent with the implied protection of freedom of
political communication provided by the
Commonwealth Constitution and therefore invalid?

No.
4. Alternatively, to what extent is section 124A of the
Anti-Discrimination Act 1991 to be read down in
order to comply with the implied protection of
freedom of political communication provided by the
Commonwealth Constitution?

It is unnecessary to read down s 124A in order
to comply with the implied protections of
freedom of political communication provided by
the Commonwealth Constitution.
5. Does a bisexual person have standing under section
134(1)(a) of the Anti-Discrimination Act 1991 to
complain about vilification on the ground of
homosexuality?

Depending on the circumstances, a bisexual
person may have standing under s 134(1)(a) of
the Anti-Discrimination Act to complain about
vilification on the ground of homosexuality.
In Appeal No 10318 of 2011:
Application refused.

In Appeal No 10868 of 2011:
Application refused.
The Court will receive submissions as to the costs of the
appeal hearing in accordance with Practice Direction
No 2 of 2010, para [52].

 

CATCHWORDS:
CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – GENERAL MATTERS – CONSTRUCTION OF THE CONSTITUTION – GENERALLY – where Queensland Civil and Administrative Tribunal (―QCAT‖) is described in the Queensland Civil and Administrative Tribunal Act 2009 as a ―court of record‖– where QCAT is not bound by rules of evidence or any practice or procedure applying to courts of record – where QCAT is to determine matters on a ―fair and equitable basis‖ in minor civil disputes – where QCAT‘s final decisions in minor civil disputes do not prevent other courts or tribunals from reconsidering issues determined by QCAT – where only two members of QCAT may exercise the power to punish for contempt – where senior members and ordinary members of QCAT may be removed from office by the executive government – where QCAT cannot enforce its own orders – where members of QCAT serve relatively short terms in office – where the position of only two members is linked to the holding of judicial office – where the executive government can include conditions in the appointment of senior and ordinary members – where the President of QCAT given administrative powers over QCAT – whether QCAT is a ―court of a State‖ within the meaning of the Commonwealth Constitution – where the applicant submitted if QCAT was not a court it would not be permitted to exercise the judicial power of the Commonwealth – where the applicant submitted that the result of s 260(4) of the Queensland Civil and Administrative Tribunal Act was that QCAT could only make a decision that the former Anti-Discrimination Tribunal could have made – whether QCAT can refer a constitutional issue to the Supreme Court for determination – whether QCAT is deprived of its state jurisdiction if a question involving federal jurisdiction arises – whether QCAT can form a view on an arising federal issue – whether QCAT is obliged to form such view – whether stating the case to the Supreme Court involved a purported exercise of jurisdiction with respect to the constitutional issue – whether the determination of this Court becomes a finding or determination of QCAT – whether s 131 of the Queensland Civil and Administrative Tribunal Act which deems a final decision of QCAT to be a final decision of the court in which it is registered purports to exercise federal judicial power – whether QCAT has jurisdiction to hear and determine matters arising under the Constitution or involving its interpretation if it is not a court – whether s 124A of the Anti-Discrimination Act 1991 (Qld) burdens the implied freedom of political communication – whether any such burden is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – whether a bisexual person can have standing under s 134(1)(a) Anti-Discrimination Act 1991 (Qld) to complain about homosexual vilification.

 

David Cormack – Brisbane Barrister.

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