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Privacy Law and Policy Reporter (PLPR)
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Gunning, Patrick --- "Brandy v Human Rights and Equal Opportunity Commission" [1995] PrivLawPRpr 19; (1995) 2(2) Privacy Law & Policy Reporter 32


High Court of Australia, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, 23 February 1995

Constitutional law - separation of judicial power - validity of legislation providing for enforcement of determinations of the Human Rights and Equal Opportunity Commission

Harry Brandy and John Bell were officers of the Aboriginal and Torres Strait Islander Commission (ATSIC). Bell lodged a complaint against ATSIC and Brandy with the Human Rights and Equal Opportunity Commission (HREOC) in respect of Brandy's behaviour towards Bell and ATSIC's response to Bell's complaints alleging contraventions of the Racial Discrimination Act 1975 (Cth) (the Act). HREOC conducted an inquiry and determined that both Brandy and ATSIC were to pay compensation to Bell and to apologise to him. The determination was lodged in the Federal Court and Brandy applied for a review of the determination. As a preliminary step in the review, Brandy challenged the validity of provisions of the Act which were inserted by the Sex Discrimination and other Legislation Amendment Act 1992 and the Law and Justice Legislation Amendment Act 1993. Brandy argued that the amendments provided for an exercise of judicial power otherwise than in conformity with Chapter III of the Commonwealth Constitution in that the power is exercised by HREOC which is not a Federal Court.

Section 25Z of the Act provided that after holding an inquiry HREOC could find a complaint substantiated and make a determination which might include declarations that the respondent had engaged in unlawful conduct and that the respondent should pay compensatory damages to the complainant. However, such determinations were not binding or conclusive between any of the parties to the determination.

Where a determination was made HREOC was required to lodge it in a registry of the Federal Court and to notify the parties of its registration (s 25ZAA). On registration the order was to have effect 'as if it were an order made by the Federal Court' (s 25ZAB(1)). However, no action to enforce the determination could be taken until the expiration of a 28 day period in which the respondent was entitled to apply for a 'review' of the determination by the court. In these proceedings the court 'may review all issues of fact and law' but a party 'cannot adduce any new evidence without the leave of the court' (s 25AZC).

Held (unanimously):

Although it is not possible to exhaustively define the attributes of judicial power, two important characteristics are the power to give a binding and authoritative decision and the power to enforce that decision. In the present case in the absence of the system for registration and enforcement of HREOC's determinations it would be plain that HREOC was not exercising judicial power. However, by requiring HREOC to register a determination in the Federal Court and by providing that a determination, from the moment of registration, had effect 'as if it were an order made by the Federal Court' the Act invalidly purported to invest HREOC with judicial power.

Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; Rola Co (Aust) Pty Ltd v The Commonwealth [1944] HCA 17; (1944) 69 CLR 185; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330; Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153, applied; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, distinguished.


Although this decision only directly affects the Racial Discrimination Act, similar systems providing for the registration and enforcement of determinations made under each of the Acts administered by HREOC have effectively been invalidated (for a description of the Privacy Act system see (1994) 1 PLPR 15). The Commonwealth Government must view this decision as unfortunate: 1 PLPR 15). The Commonwealth Government must view this decision as unfortunate: one of the motivations for the introduction of the registration and enforcement system was criticism from members of the judiciary of the waste of resources involved in the duplication of hearings by HREOC and the Federal Court (see Maynard v Neilson [1988] EOC 92-226). However, the Attorney-General has announced that a new system for the making and enforcement of determinations will be formulated and presented to Parliament as a matter of urgency.

One of the issues to be addressed is the recoverability of payments made by way of compensation following registration of a determination with the Federal Court. In previous cases in which payments have been made under systems later found to be unconstitutional the Commonwealth has enacted legislation re-directing payments (for example, the system considered in Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; (1994) 68 ALJR 216).

For a recent discussion of the definition of judicial power see Gunning and Walker, 'Judiciary' in Laws of Australia, Vol 19, 'Government'.

Patrick Gunning

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