Binding the Monolith

Abstract

This article discusses the Full Court of the Federal Court decision of Commonwealth of Australia v Anti-Discrimination Tribunal, in particular Justice Kenny’s finding that a state tribunal lacked sufficient “institutional arrangements and safeguards” to exercise federal judicial power. Justice Kenny’s finding, and its recent endorsement by the High Court in K-Generation v Liquor Licensing Court marks a shift in judicial attitudes towards courts of state, by requiring a much higher standard of independence and impartiality than in the past. Subsequently, we argue that legislatures across Australia must choose to either strengthen these aspects of their decision-making bodies – especially if they wish to bind Commonwealth instrumentalities – or simply accept that they will no longer be acceptable repositories of federal judicial power.