Brandy v HREOC

Citation:	183 CLR 245 [PDF], 69 ALJR 191, 58 IR 48, 127 ALR 1, 37 ALD 340, [1995] HCA 10 Court:	High Court of Australia (AUS)

Judges:	Mason, Brennan, Deane, Dawson, Toohey, Gaudron, McHugh

Judgement Date: 23/2/1995

Harry Brandy worked for the Department of Aboriginal Affairs (DAA, now ATSIC). Two officers who also worked for the DAA filed a complaint against him and the DAA for racial abuse. The Human Rights and Equal Opportunity Commission heard evidence from the officer sand made a determination that Mr Brandy and ATSIC do several things in compensation to the officers.

In order for the determination to be enforceable, it had to be registered with the Federal Court. Mr Brandy argued that this was unconstitutional, as the HREOC Act attempted to give a registered determination of HREOC the same effect as if it was an order of the Federal Court. The High Court agreed with him.

From the headnote:

(1) The Racial Discrimination Act 1975 Cth, ss 25ZAA, 25ZAB and 25ZAC, were invalid, as they provided for an exercise of judicial power otherwise than in conformity with the Constitution, Ch III , in that the power was to be exercised by the Human Rights and Equal Opportunity Commission, a body not being a court established pursuant to s 71 , and constituted in accordance with the Constitution, s 72. Observations on the difficulties of providing a comprehensive definition of "judicial power". Per Mason CJ, Brennan and Toohey JJ — A judicial order made by the Federal Court takes effect as an exercise of Commonwealth judicial power, but a determination by the commission is neither made nor registered in the exercise of judicial power. An exercise of executive power by the commission and the performance of an administrative function by the Registrar of the Federal Court simply cannot create an order which takes effect as an exercise of judicial power; conversely, an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination.

(2) The relevant review function reposed in the Federal Court was not an exercise of federal judicial power in the form of a grant of original jurisdiction, in that a commission determination was expressed to become enforceable on registration in circumstances where the review procedure was not invoked. An argument to the contrary, that the review function was analogous to a default judgment, could not be sustained, as such a judgment is entered in the exercise of judicial power by a court, pursuant to its rules, and may be set aside in accordance with those rules. Per Deane, Dawson, Gaudron and McHugh JJ — The determination remains the determination of the commission and in no sense becomes the determination of the Federal Court.

(3) The review to which the Racial Discrimination Act, ss 25ZAB and 25ZAC, referred, was not a hearing de novo: no express legislative language enabled it, and the history of the legislation suggested otherwise.