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Trimming the tribunals: Brandy v Human Rights and Equal Opportunity Commission.

CONTENTS

Major Issues

Introduction

PART 1

The choice of an administrative structure for dealing with abuses of human rights

The development of human rights legislation in Australia

The enforceability of HREOC determinations

Criticisms of the enforcement mechanism for HREOC determinations

Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs

The registration of HREOC determinations by the Federal Court

The movement from administrative to judicial functions

PART 2

The separation of powers

Judicial power

The effect of the registration provisions

The relevance of the power to seek a review

The result of the Brandy case

PART 3

The consequences of the Brandy decision

The effect of the Brandy decision on other legislation

Ways of rectifying the problem

Brandy v Human Rights and Equal Opportunity Commission

Major Issues

The recent High Court decision in Brandy v Human Rights and Equal Opportunity Commission struck down the enforcement provisions for determinations made by the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975.

The Racial Discrimination Act 1975 has given the Commission the power to conciliate complaints of racial discrimination. Originally, this was its only power, and if conciliation failed, an action could be brought in a court for a court order. Over the years, however, the Commission has been given powers to make determinations that unlawful acts of discrimination have occurred, and that the respondent must pay compensation or employ the complainant or perform some other act to redress the discrimination. Such findings are judicial in nature, but up until 1992, when amendments were made to the Act, the Commission was not considered to be exercising judicial power because its determinations were not binding and enforceable. If a person refused to comply with the Commission's determination, then the complainant had to initiate an action in the Federal Court and the matter had to be heard all over again, before the Court would exercise its judicial power and make an order.

In some cases when the matter was brought to the Federal Court, the Court would make a different finding to the Commission, because different evidence was presented before the Court, and different rules of evidence applied.

The unsatisfactory nature of the system, which often required a complainant to endure three full investigations, led to an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs. The Commission made a submission to the Committee that its determinations should be registered with the Federal Court and take effect as if they were court orders, subject to the ability of the respondent to apply for a review by the Federal Court. The validity of this proposal was supported by an opinion by the Chief General Counsel, and the majority recommendation to follow this course was adopted by the Government. Legislation implementing these recommendations was enacted in 1992, and came into force in January 1993.

In October 1994 the legislation was challenged in the High Court in the case of Brandy v Human Rights and Equal Opportunity Commission, and on 23 February 1995 the High Court unanimously held that these registration and review provisions were invalid because they breached the constitutional separation of judicial power from executive power. The Court held that the legislative provisions purported to give the Commission, which is an administrative body, power to make binding and enforceable judicial decisions, and that this is contrary to the Constitution which exclusively confers judicial power on courts.

The consequence of the High Court's decision is that the Commission's determinations under the Racial Discrimination Act are unenforceable. As the same provisions apply in the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Privacy Act 1988, any determinations made under these Acts will also be unenforceable.

Concern about the wider ramifications of the Brandy case for other administrative bodies appears to be less well founded. Most administrative bodies exercise administrative or arbitral power, and will not be caught by this decision. The National Native Title Tribunal is a good example of where the line must be drawn. Most of its functions are arbitral in nature, and will not be affected by the Brandy decision. However, one of its functions, which is to make a determination that native title exists, where all parties consent, may well be considered to be an exercise of judicial power, and may therefore be unenforceable.

The immediate problem faced by the Government is to amend the discrimination legislation in a manner which will be both effective and constitutionally valid. The Parliament has several options. First, it could return to the legislative scheme which existed prior to the 1992 amendments, where an action could be brought in the Federal Court if a respondent failed to comply with a determination of the Commission. The Federal Court would then exercise its judicial power in making its adjudication on the evidence before it.

Secondly, the Parliament could remove the Commission's power to make determinations, and leave it with its main function of conciliation. If conciliation failed, an action could be brought in the Federal Court. A special division of the Federal Court could be established to create an expertise in these matters, and to operate by rules of evidence and procedures which are more suitable to human rights matters.

Thirdly, the Parliament could vest federal jurisdiction in State discrimination bodies, which have been considered 'courts' for the purposes of granting judicial power under Chapter III of the Constitution.

Fourthly, the Parliament could vest arbitral power in the Commission, rather than judicial power. 1

Brandy v Human Rights and Equal Opportunity Commission

Introduction

On 23 February 1995 the High Court handed down its judgment in Brandy v Human Rights and Equal Opportunity Commission. 2 The Court unanimously held that sections of the Racial Discrimination Act 1975 which provided for the registration and enforcement of the determinations of the Human Rights and Equal Opportunity Commission (HREOC), are constitutionally invalid because they breach the principle of separation of powers.

The original complaint involved an allegation by Mr Bell that Mr Brandy had acted in a racially discriminatory manner towards him, and that their mutual employer, the Aboriginal and Torres Strait Islander Commission (ATSIC), had not dealt properly with the complaint. A determination was made by Mr R. Castan QC, who was acting on behalf of HREOC, that Mr Brandy and ATSIC had both breached the Racial Discrimination Act, and that they apologise to Mr Bell and pay him damages in the sums of $2500 and $10,000 respectively. Mr Castan also determined that ATSIC must take disciplinary action against Mr Brandy.

Mr Brandy challenged the constitutional validity of this determination, on the basis that it was an exercise of judicial power, and that the Constitution provides that judicial power may only be conferred on a court - not an administrative body such as HREOC.

Prior to the enactment of amendments in 1992, HREOC had the power to make determinations, but they were not binding or enforceable. If a person wanted to enforce a determination, he or she had to commence proceedings in the Federal Court and have the matter heard all over again (known as a hearing de novo). The Court could not merely adopt the determination of HREOC, because the Court had to independently exercise its judicial power in order to make a binding and enforceable order.

In 1992, the Commonwealth Parliament passed the Sex Discrimination and Other Legislation Amendment Act 1992, which provided for the registration of HREOC determinations with the Federal Court, and that upon registration they were to take effect as if they were orders of the Federal Court (subject to the ability to seek a review of the determination by the Court). The effect of these provisions was that HREOC could make determinations which became binding and enforceable, and therefore amounted to an exercise of judicial power, contrary to the Constitution. Accordingly, the High Court held that the registration and review provisions were constitutionally invalid.

The first part of this paper discusses how these unconstitutional provisions came about. It looks back to the original scheme of the Racial Discrimination Act 1975, where the Commissioner's role was purely to effect conciliation and judicial matters were left to the courts, and considers how gradual changes to discrimination legislation began to undermine this distinction, finally resulting in the invalid legislation. It also considers the various judicial criticisms that were made of the scheme prior to the 1992 amendments, and the proposals put to the Senate Standing Committee on Legal and Constitutional Affairs to address these problems. Some of these proposals, which were rejected at the time in favour of the unconstitutional provisions, may now need to be reconsidered in order to recast the discrimination legislation in a constitutionally valid manner.

Part 2 of the paper provides a summary and analysis of the Brandy case.

Part 3 of the paper considers the ramifications of the case, including how it will affect other legislation and other administrative bodies. It then considers the options for amending the affected legislation to achieve an effective and constitutionally valid system.

PART 1

The choice of an administrative structure for dealing with abuses of human rights

When the Federal Government enacted the Racial Discrimination Act 1975 it chose to adopt an administrative means of dealing with racial discrimination, rather than leaving the matter to the courts.

One of the reasons for the adoption of an administrative structure was that it is aimed at solving the problems which underlie racial discrimination, rather than exacerbating them with adversarial proceedings. The Attorney- General, Mr Kep Enderby, stated in the second reading speech of the Racial Discrimination Bill 1975:

The Bill recognises that reliance on the spasmodic operation of judicial action or review for the enforcement of the legislation would be unsatisfactory. The Bill also for this reason recognises that an emphasis on mediation and conciliation is a more satisfactory way of tackling individual instances of racial discrimination and tensions that are associated with individual disputes. 3

The Government had also noted that the effectiveness of conciliation might be jeopardised if the Commissioner were to become involved in litigation. Accordingly, the Bill was structured to separate the conciliation role from any court action. 4

The former Race Discrimination Commissioner, Ms Irene Moss, has also advocated the use of administrative means to protect human rights. She responded to the question of why an administrative approach was taken rather than providing a direct right to take judicial action, as follows:

The answer lies in the fact that even in handling individual complaints of discrimination, it is often necessary to refer to wider patterns of disadvantage, to issues of power relations, and to structural and systemic factors. It was also felt that legislation could only cover acts of discrimination - in other words, behaviour - when the problem often lies with attitude. Thus with anti- discrimination laws, the government was embarking on legislation which could be called 'social engineering'; trying to engender new attitudes amongst its citizens. To achieve this, it was argued successfully that a more flexible, informal and confidential (where necessary) approach would be preferable to a more public, combative, expensive, legalistic court room approach. Thus the conciliation method of complaint handling was adopted, and the machinery put in place to allow parallel avenues of attitude change (such as research, education and promotional activities). 5

The development of human rights legislation in Australia

The first Commonwealth law which dealt with discrimination was the Racial Discrimination Act 1975. Part II of the Act provided that it was 'unlawful' (but not an 'offence') 6 to discriminate against a person on the ground of race, colour, descent or national or ethnic origin. Complaints about racial discrimination were to be made to a Commissioner who was to attempt to resolve them by means of conciliation rather than adversarial proceedings. 7

If conciliation failed, the aggrieved person could institute proceedings in a court. 8 If the court was satisfied that the respondent had committed an 'unlawful' act of discrimination, it could grant an injunction restraining the respondent from repeating the act, or direct the respondent to do a specified act such as paying damages, or grant such other relief as the court considered just. 9 The division between the conciliatory role of the Commissioner and the judicial role of the courts was clear.

In 1981 the Human Rights Commission Act 1981 was enacted. The Act established the Human Rights Commission, the functions of which included inquiring into any act or practice of the Commonwealth, or acts done under Commonwealth legislation, that may have been inconsistent with, or contrary to, the human rights and freedoms recognised in certain international instruments. 10 Where appropriate, the Commission was to endeavour to effect a settlement of such matters. If conciliation was unsuccessful, the Commission was to report the results of its inquiry to the Minister. 11

Section 16 provided that where the Commission found that a person's act or practice was inconsistent with a human right, it should serve notice on the person of its findings and include any recommendation for the purpose of preventing a repetition or continuation of the act or practice. Section 16 also provided that the Commission was to report its findings and recommendations to the Minister, and inform the Minister whether, to its knowledge, the person had taken action as a result of the recommendations.

In addition to its conciliatory role, therefore, the Commission could make findings and recommendations about compliance with the Act. As its findings and reports to the Minister were confined to acts and practices of the Commonwealth, or acts done under Commonwealth laws, the Commission would be merely fulfilling its administrative role of advising the Commonwealth on the compliance of its own practices with its international obligations.

The role of the Commission in making findings and recommendations was expanded by the enactment of the Sex Discrimination Act 1984. The Act provided for the conciliation of complaints of sex discrimination by a Sex Discrimination Commissioner. The Act was not confined to complaints about the acts and practices of the Commonwealth, but rather applied to individuals and companies.

If conciliation failed, the Human Rights Commission could conduct an inquiry into the matter. After holding an inquiry, the Commission could find the complaint substantiated and make a determination which could include, amongst other things, a declaration that the respondent:

(a) had engaged in unlawful conduct and should not repeat such conduct;

(b) should perform any act to redress the loss or damage suffered by the complainant; or

(c) should employ or promote the respondent. 12

The Act provided that a determination of the Commission was not binding or conclusive between any of the parties, 13 but the Commission or the complainant could institute proceedings in the Federal Court for an order to 'enforce' a determination of the Commission. 14

In 1986, a review of the Commission and its role in the protection of human rights, resulted in its replacement by the Human Rights and Equal Opportunity Commission, under the Human Rights and Equal Opportunity Commission Act 1986. The Racial Discrimination Act 1975 was amended 15 to allow HREOC to make the same type of determinations and declarations in relation to racial discrimination, as it could in relation to sex discrimination.

HREOC can now make determinations which declare that the respondent has engaged in unlawful conduct, and must not repeat such action, or must perform any reasonable act, including the re- employment or promotion of the complainant or the payment of compensation. 16

The enforceability of HREOC determinations

Before the 1992 amendments 17 to the Acts the only means of enforcing a determination of HREOC was to take proceedings in the Federal Court. If the Federal Court was satisfied that the respondent had engaged in conduct or committed an act that was unlawful under the relevant Act, the Court could make such orders as it thought fit. 18

This procedure did not amount simply to the Federal Court lending its judicial power to enforce the order of the Commission. The Court considered itself obliged to hear the matter de novo and to make its own independent adjudication which may or may not result in the same determination as that made by the Commission.

This matter was first raised in the Federal Court in the case of Aldridge v Booth. 19 The Human Rights Commission (as it then was) made a determination in 1986 that the complaint of sexual harassment brought by Ms Aldridge against her former employer Mr Booth was substantiated, and that Mr Booth should pay her $7000 in compensation. Mr Booth did not pay the sum, and Ms Aldridge took action in the Federal Court to enforce the Commission's determination. Justice Spender referred to the constitutional restrictions on the power of the Commission as follows:

The express provision that a determination of the Commission under sec. 81(1) [of the Sex Discrimination Act] is "... not binding or conclusive between any of the parties to the determination" reflects a recognition of the limitation of the judicial power of the Commonwealth under Ch. III of the Constitution. A determination of the Commission is not an exercise of the judicial power of the Commonwealth. This subsection, it seems to me, reinforces the conclusion that the functions of the Human Rights Commission, and now the Human Rights and Equal Opportunity Commission, under the Act and the other statutes with which it is concerned, are primarily educational and conciliatory. 20

Justice Spender then went on to consider whether the role of the Court was confined to the mere 'enforcement' of the determination, or whether the Court was obliged to make its own independent consideration of the case. Section 82 of the Sex Discrimination Act provided that the Court must be satisfied that the respondent has engaged in unlawful conduct. His Honour concluded that this meant that the Court must consider matters of law and fact, and make its adjudication on the basis of the civil standard of proof; on the balance of probabilities.

His Honour then considered the extent to which the Court could rely upon the findings of the Commission, noting differences in rules of evidence:

...the Court is bound to proceed only on evidence properly admitted before it in accordance with the rules of evidence, a stricture that does not necessarily apply to the Commission. Independently of that consideration, the evidence before the Court will frequently not be the same as that before the Commission. It seems to me, having regard to the terms of sec. 81(2), that any findings by the Commission can be of no assistance in the performance of the task entrusted to the Federal Court by sec. 82(2). 21

Justice Spender independently came to the same conclusion as the Commission, and awarded an identical sum in compensation.

Justice Spender's observation that the evidence before the Court may be different from that before the Commission, was exemplified by the subsequent case of Maynard v Neilson. 22 In that case further evidence was adduced in the hearing in the Federal Court, leading the Court to find that there was no case of racial discrimination, contrary to the Commission's determination.

Justice Wilcox noted that one of the dangers of allowing an administrative body to make these determinations which are not binding on the parties, is that parties may choose not to bring forward all the relevant evidence until the matter is heard by a court. 23

The enforcement of the Commission's determinations was further addressed by the Federal Court in the case of Hall Others v A A Sheiban Pty Ltd Others. 24 The determination of the Commission was challenged under the Administrative Decisions (Judicial Review) Act before the Full Federal Court. Justice Lockhart considered the argument that the Federal Court when exercising its functions under s. 82 of the Sex Discrimination Act 1984 is confined to the enforcement of that particular determination, and cannot consider matters or make orders outside the terms of that declaration. He rejected that view and observed:

Plainly the reason for the Legislature's enactment of sec. 81 in its present form, which invests the Commission with the power to make declarations that of themselves have no force, effect or operation and which provides that the Commission's findings do not bind the parties, is to make clear that the Commission does not exercise the judicial power of the Commonwealth, which is exercised only when a matter comes before the Federal Court under sec. 82.

What enlivens the Federal Court's jurisdiction under sec. 82 is a declaration of the Commission capable of enforcement in some measure. 25

Justice Lush also raised that point that the true effect of the Commission's determination is to 'enliven' the jurisdiction of the Federal Court, by giving a person standing to commence proceedings in the Court. It appears that from the Court's perspective, the role of the Commission as a filter mechanism for complaints is more significant than the actual substance of its orders.

In summary, it appears from the cases dealing with the enforcement of HREOC determinations prior to 1992, that the courts concluded that although the type of determinations made by HREOC were adjudicative, and therefore judicial in nature, because they decided whether an unlawful act had taken place, they did not breach the constitutional separation of powers because the determinations were not binding or enforceable.

Criticisms of the enforcement mechanism for HREOC determinations

There was a great deal of dissatisfaction with the system of enforcement of HREOC determinations, which required a case which had already been determined once by HREOC, to be completely re- heard by the Federal Court.

Justice Wilcox was one of those who was highly critical of the system. He noted in Maynard v Neilson that the fact that the determination is unenforceable itself leads to unsatisfactory results. He observed that the complainant will feel even greater injury if after receiving a determination in his or her favour, the respondent does not, and is not obliged to, comply with it. As already quoted, enforcement proceedings in the Federal Court will be costly and even more distressing for the complainant. 26

Justice Wilcox concluded that it may be preferable if the legislation were amended to remove the power of the Commission to make these non- binding determinations, and let the matter be directly referred to the courts. He stated:

...if it is constitutionally impossible to make the findings of the Commission, after inquiry, binding on the parties, it may be better to dispense with the inquiry procedure all together and to provide an immediate right of action in the Federal Court upon the failure of the Race Discrimination Commissioner to resolve the complaint by conciliation.

Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs

Criticisms, such as those made by Justice Wilcox, eventually led to a reference being made to the Senate Standing Committee on Legal and Constitutional Affairs on 21 December 1990. The terms of reference required the Committee to consider the mechanisms available to parties dissatisfied with determinations made by the HREOC, and whether, having regard to the constitutional separation of powers, alternative, less costly, procedures can be developed.

Submissions to the Committee showed a general agreement that the procedures at that time were not satisfactory because they resulted in the duplication of functions between HREOC and the Federal Court, and involved a great deal of unnecessary stress, expense and waste of time. 27

HREOC advocated the registration of HREOC determinations by the Federal Court, giving them the effect of orders of the Federal Court unless an application is made to the Court for a review of the determination within a limited time period. 28

The Commonwealth Attorney- General's Department provided a submission which concluded that HREOC could not be given the power to determine whether a breach of the legislation has occurred, because this would be the exercise of judicial power. It stated:

There is no doubt that the power to decide whether alleged conduct in breach of the [Racial Discrimination Act] or [the Sex Discrimination Act] has taken place, and the power to award damages or make restraining orders, are judicial powers and are properly given to the Federal Court. These powers could be given without the need for any prior hearings by the Commission, the functions of which could be limited to conciliation. 29

The Department considered that the only way HREOC's proposal could work would be if HREOC did not adjudicate on the law and facts as they exist, but rather created liabilities, in much the same way as an arbitral body: 30

This is a useful option because it enables determinations to be enforced without the need for a judicial hearing if there is no "appeal". The registration proposal would probably be valid if the legislation created a liability to pay the amount determined or to do the conduct determined within a specified period after the determination was made if no "appeal" had been lodged in the meantime or had been lodged but withdrawn. 31

This proposal to change the function of HREOC, from making determinations on an adjudicative basis, to making determinations which are more arbitral in nature, did not gain general acceptance, and was not pursued any further.

An opinion from the Chief General Counsel, on the constitutional validity of the proposal put by HREOC, was sought by the Senate Committee. The Chief General Counsel, Dennis Rose, issued an opinion that the proposed legislation would be valid. He acknowledged that the nature of HREOC determinations is primarily judicial, but argued that as long as full judicial review of the determinations is available, the making of the determinations would not be an exercise of judicial power. He noted that:

... a HREOC determination in favour of an applicant would be a determination to the effect that the respondent had engaged in conduct made ' unlawful' by the legislation. This would be an exercise of judicial power, at least if it was to be made enforceable without full judicial review. The power could therefore not be conferred on HREOC since it is not a court. An appeal from HREOC limited to the grounds on which an appeal is ordinarily taken from a single judge of the Federal Court or a Supreme Court to a Full Court would not suffice... 32

Mr Rose argued that by allowing a full judicial review, as opposed to an appeal, HREOC would not be exercising judicial power. Its determinations would be analogous to default judgments, which can be obtained from a court official if the defendant does not appear to defend the action. According to the analogy, if the respondent does not apply for a review by the Federal Court, then the determination prevails in the same way as would a default judgment.

The Senate Committee published its report Review of Determinations of the Human Rights and Equal Opportunity Commission and the Privacy Commissioner in November 1992.

The majority report, by Senators Cooney, Giles, Schacht and Spindler, recommended that the legislation be amended so that if a determination of HREOC was not complied with within 30 days of its making, the determination could be registered with the Federal Court. Unless an objection is lodged within 30 days of the registration of the determination, the registered determination should become an order of the court. If an objection is lodged within the relevant time, then the Federal Court should review the matter.

The minority report, by Senators Vanstone, Kemp, O'Chee and Walsh, recommended that where conciliation is unsuccessful, the complaint should be directly referred to the Federal Court for adjudication, rather than allowing HREOC to make an unenforceable determination. The minority report noted:

Adopting such an approach recognises that 'administrative' and 'judicial' functions are mutually exclusive, require differing expertise, and should not both be exercised by a single body. 33

The registration of HREOC determinations by the Federal Court

Legislation substantially implementing the recommendations of the Senate majority report was introduced into the Parliament and passed in late 1992. The Sex Discrimination and Other Legislation Amendment Act 1992 amended the Sex Discrimination Act, the Racial Discrimination Act and the Disability Discrimination Act 1992, to provide for the registration of HREOC determinations by the Federal Court.

The Racial Discrimination Act provides that as soon as practicable after a determination is made, 34 the Commission must lodge the determination in a Registry of the Federal Court. 35 Upon lodgment of the determination, a Registrar must register the determination. 36 The Commission must also give notice to the complainant and the respondent that the determination is registered.

Upon registration, a determination 'has effect as if it were an order made by the Federal Court', subject to certain provisions. 37 Action cannot be taken to enforce the determination during the 'review period'. The 'review period' is a period of 28 days starting on the day the determination is registered, during which the respondent may apply to the Federal Court for a review of the determination. If such an application is made, the review period is extended until the review undertaken by the Federal Court is completed.

In reviewing the determination, the Federal Court may review all issues of fact and law. 38 A party cannot, however, introduce new evidence that was not provided to the Commission, unless leave of the Court is granted to do so. After reviewing the determination, the Court may make such orders as it considers fit, and may confirm a registered determination.

The movement from administrative to judicial functions

The following summary shows the way in which administrative human rights bodies have progressively assumed adjudicative functions. While conciliation of complaints has always been the primary aim of discrimination legislation, if conciliation process failed:

1975 - the complainant could commence an action in the Federal Court.

1981 - the Commission could inquire into a matter and report recommendations to the Minister.

1984 - the Commission could inquire into a matter and make a determination which, if not acted upon, could be enforced by a de novo hearing in the Federal Court.

1992 - the Commission could inquire into a matter and make a determination, which must be registered by the Federal Court and has the same effect as a Federal Court order, subject to the possibility of review by the Court.

PART 2

The separation of powers

In Brandy v Human Rights and Equal Opportunity Commission, the plaintiff argued that the Commission was exercising judicial power, contrary to the separation of powers required by the Constitution.

Chapter III of the Constitution deals with the judicature, and section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court, such other federal courts as the Parliament may create, or State courts which are vested by the Parliament with federal jurisdiction. Section 72 requires federal judges to be appointed to a term which does not expire until they reach a specified retirement age, and provides that their salary may not be diminished during their term of office.

The High Court has held that federal judicial power cannot be exercised by any person or body other than a federal court constituted by judges appointed under section 72 of the Constitution 39 or a State court vested by the Commonwealth Parliament with federal jurisdiction. This was restated in the Boilermakers' case in the joint judgment of Dixon CJ, McTiernan, Fullagar and Kitto JJ., where they concluded:

it is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to section 71 and constituted in accordance with section 72 or a court brought into existence by a State. 40

It is clear that HREOC is not a court, because its members are not appointed in accordance with section 72 of the Constitution 41 and its primary function of conciliation is not a 'judicial' function. 42 Members of HREOC are appointed for fixed terms according to the conditions set out in the relevant legislation. At the end of their terms, they are eligible for reappointment.

Accordingly, the Commonwealth Parliament has no power to vest judicial power in HREOC. The main question argued in Brandy was whether the powers conferred on HREOC were in fact 'judicial'.

Judicial power

It has often been stated that 'judicial power' defies exhaustive and conclusive definition. 43 In general, however:

judicial power is usually exercised in relation to a controversy between two or more parties; 44

judicial power involves the declaration of legal rights or duties; 45

the declaration must be made upon the basis of such law and facts as already exist; 46

the declaration must have a binding effect on the parties, (subject to appeal or review) and must be capable of enforcement; 47

the adjudication must be made on the basis of judicial principles and not be required to take into account extraneous policy matters; 48

the application of judicial procedure such as the compellability of witnesses and laws regarding contempt may be indicative, but not conclusive, of judicial power; 49 and

the name or description of the body exercising the power is not relevant. 50

The determinations of the Human Rights and Equal Opportunity Commission fulfil most of these criteria. They involve the declaration of the rights and obligations of the parties to a controversy, based on the facts and the law as they already exist. The process of making the determination is one involving the application of the law to the facts, which does not require HREOC to take into account extraneous policy matters or create new rights and obligations for the future.

Prior to the 1992 amendments, it was only the fact that the determinations were not binding or enforceable which prevented their making from being characterised as an exercise of judicial power. 51

In Brandy, the High Court recognised that the determination by HREOC, requiring the payment of damages by Mr Brandy and ATSIC to Mr Bell, was inherently judicial in nature because it was a finding that an unlawful act had occurred, and the application of a remedy of compensation. 52 The functions of HREOC therefore are 'closely analogous to those of a court in deciding criminal or civil cases' and thus 'exclusively' judicial in nature. 53 The only factor which could have prevented it from being considered 'judicial power' would be if the determinations of HREOC were not 'binding and enforceable.'

The effect of the registration provisions

The Court, in Brandy, referred to the legislative scheme prior to the 1992 amendments, when a decision of HREOC was not binding and enforceable, and an action had to be initiated in the Federal Court and heard afresh in order to obtain a binding and enforceable order. In these circumstances, the Court considered that the Commission's functions were purely administrative, and that there was no breach of the separation of powers. 54

The crucial difference between the old scheme and the scheme established by the 1992 amendments was that by providing for the registration of the Commission's determinations and giving them effect 'as if they were orders of the Federal Court', the Racial Discrimination Act 1975 transformed the Commission's powers into judicial power. Justices Deane, Dawson, Gaudron and McHugh summarised this finding as follows:

[I]f it were not for the provisions providing for the registration and enforcement of the Commission's determinations, it would be plain that the Commission does not exercise judicial power. That is because, under s. 25Z(2), its determination would not be binding or conclusive between any of the parties and would be unenforceable. That situation is, we think, reversed by the registration provisions. 55

The fact that the order had to be registered with the Federal Court gave the appearance that the judicial power was being exercised by a court, but the High Court recognised that this was not the case. Under s. 25ZAA of the Racial Discrimination Act it was compulsory for the determination to be registered by the Registrar of the Federal Court, and no judicial discretion or supervision was conferred on the Court. Once registration took place, s. 25ZAB provided that it took effect as if it were an order of the Federal Court, making it binding and enforceable (subject to any review). Justices Deane, Dawson, Gaudron and McHugh therefore concluded:

Nothing that the Federal Court does gives a determination the effect of an order. That is done by the legislation operating upon registration.... It is the determination of the Commission which is enforceable and it is not significant that the mechanism for enforcement is provided by the Federal Court. The situation stands in contrast to the situation which was superseded by the 1992 amendments to the Racial Discrimination Act. Under the earlier provisions, the Federal Court had to be satisfied of a breach of the Act before making an order for itself. 56

Chief Justice Mason and Justices Brennan and Toohey reached the same conclusion that the Federal Court's role in the registration of the Commission's determinations does not lend legitimacy to the Commission's purported exercise of judicial power. Their Honours stated:

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. Thus, s. 25ZAB purports to prescribe what the Constitution does not permit. 57

The relevance of the power to seek a review

The Commonwealth argued in the Brandy case that the power of a respondent to seek a full review of the Commission's determination by the Federal Court meant that the Commission had not exercised judicial power, and that its determination was analogous to the initiating of legal proceedings. If a respondent did not apply for a review of the determination within the required period, then, it was argued, the binding and enforceable order against him or her would be similar to a default judgment issued by a court when a party to a suit does not comply with the rules of a court.

The High Court rejected this argument. Their Honours noted that default judgments 'are entered in the exercise of judicial power by a court, pursuant to its rules, and may be set aside in accordance with those rules'. 58 In the case of the Commission's determinations, however, there is no exercise of judicial power on behalf of the Federal Court if a review is not sought. The Commission's determination has effect as an order of the Federal Court, without the Federal Court ever having considered it or exercised any of its judicial power in relation to it. Even when an application for review is made, this does not transform the making of the initial determination into a non- judicial act. As Justices Deane, Dawson, Gaudron and McHugh noted:

The existence or exercise of a right of appeal from a decision made in the exercise of judicial power does not convert that decision into one of an administrative kind. 59

It was also argued by the Commonwealth that a review conducted by the Federal Court was an exercise of original jurisdiction by the Court, rather than an appeal. However, the Racial Discrimination Act 1975 provides that a party to a review cannot adduce any 'new evidence' without the leave of the Court. The Court considered that the type of review contemplated by the legislation was an appeal by rehearing and not a hearing de novo. 60 Accordingly, it could not be said that the review was an exercise by the Federal Court of its original jurisdiction.

The result of the Brandy case

All seven Justices of the High Court held that sections 25ZAB, 25ZAC and 25ZC of the Racial Discrimination Act 1975, which deal with the registration, enforcement and review of determinations of the Human Rights and Equal Opportunity Commission, are invalid. Justices Deane, Dawson, Gaudron and McHugh also held that s. 25ZAA was invalid. The reason for this invalidity is that these sections purport to confer on the Commission the judicial power of the Commonwealth, contrary to section 71 of the Constitution.

PART 3

The consequences of the Brandy decision

Although the High Court struck down the provisions concerning the registration, enforcement and review of the Commission's determinations, it did not strike down the power of the Commission to make a determination. Section 25Z, which gives the Commission the power to make a determination declaring that the respondent has engaged in an unlawful act and should not repeat or continue such conduct, or that the respondent should pay compensation or employ the complainant, or perform any other reasonable act to redress the damage suffered by the complainant, remains a valid section of the Racial Discrimination Act 1975. However, subsection 25Z(2) provides that a determination of the Commission is not binding or conclusive between the parties. Accordingly, as the registration and enforcement provisions are invalid, there is no longer any legal power to enforce the Commission's determinations.

Prior to the 1992 amendments, the Racial Discrimination Act 1975 permitted a complainant to institute proceedings in the Federal Court to enforce a Commission order. The Federal Court heard the matter de novo, and exercised its own judicial power in reaching an order, rather than relying on the Commission's determination. The High Court recognised in Brandy that this system was constitutionally valid. 61 The provisions allowing this course of action were removed from the Act when the 1992 amendments were introduced, so they do not currently apply.

Accordingly, at the present, the determinations of the HREOC are not enforceable. The determination against Mr Brandy, therefore, cannot be enforced (unless the Parliament passes valid retrospective legislation which allows the Federal Court to conduct a de novo hearing, in the exercise of its original jurisdiction). The determination against ATSIC is in a different category, because Division 4 of Part III of the Act deals separately with determinations involving Commonwealth agencies, and requires their compliance, without the necessity of giving effect to the Commission's determination as if it were a Federal Court order. The determination against ATSIC is therefore not affected by the Brandy decision.

The consequences of the Brandy decision for others who have had determinations made by the Commission since the 1992 amendments came into effect in January 1993 are unclear. Most complaints to the HREOC are resolved in the conciliation stage, and will therefore be unaffected. The Attorney- General's Department estimates that there are about 30 cases where orders were registered with the Federal Court. 62 If compensation was paid on the basis that there was a valid court order requiring its payment, then there is a possibility that there would be a right of action for the return of the amount, on the basis that there was no valid order.

The effect of the Brandy decision on other legislation

The same provisions which were held constitutionally invalid in the Brandy case, also exist in the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Privacy Act 1988. On the basis of the reasoning in Brandy, these provisions are also constitutionally invalid.

The same provisions for registration and enforcement of the determinations of a tribunal are also contained in the Native Title Act 1993. 63 However, this does not necessarily mean that none of the determinations of the National Native Title Tribunal may be enforced. The Tribunal has the power to make determinations as to whether a future act affecting native title (such as the grant of a mining lease over native title land) may proceed. 64 The Act sets out a list of criteria upon which the Tribunal is to make its determination. 65 This is unlikely to be considered an act of judicial power because it is not a matter of declaring the rights and liabilities of parties as they exist under the law. On the contrary, the Tribunal's role is to create future rights and liabilities, and to do so upon criteria which involve the exercise of discretion far beyond the judicial process. Upon the basis of cases such as Precision Data Holdings Ltd v Wills 66 and Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia, 67 the Tribunal would not be exercising judicial power in making such a determination, and therefore it would be unaffected by the Brandy decision in relation to this type of determination.

In contrast, the National Native Title Tribunal also has power to make determinations under section 61 concerning the existence of native title. This would appear to be a judicial, rather than arbitral, act. However, such determinations may only be made if the application is unopposed or if the parties reach a negotiated agreement. On the one hand, it might be argued that because there is agreement between the parties, there is no dispute and therefore no exercise of judicial power. On the other hand, the High Court has previously held that consent orders are exercises of judicial power, and parties cannot, by consent, confer Commonwealth judicial power upon a non- judicial body. 68 Accordingly, it is possible that determinations made under s. 61 could be unenforceable as a consequence of the Brandy decision.

There have been some suggestions that the Brandy decision will affect the functioning of other tribunals, such as the Administrative Appeals Tribunal and the proliferation of other commissions and bodies which make decisions. It is unlikely that this will be the case. The important question to be asked is what type of power is the tribunal or commission exercising? If it is merely exercising administrative powers or arbitral powers, it will be unaffected by the Brandy decision.

There have been, in the past, a number of cases in which the nature of the powers exercised by such tribunals and commissions has been the subject of legal challenge. For example, in Precision Data Holdings Ltd v Wills, the High Court held, unanimously, that the Corporations and Securities Panel does not exercise judicial power, because its determinations create new rights and obligations rather than adjudicate upon rights and obligations existing at law prior to the making of the determination, and because it is required to take into account certain matters of policy, which are outside the boundaries of judicial power.

The difference between the Human Rights and Equal Opportunity Commission, and most other tribunals and commissions, is that the powers that it was exercising, and the method by which they were to be exercised, were inherently judicial in nature. Once the final element of a binding and enforceable order was added, it was clearly exercising judicial power, contrary to the Constitution. It is unlikely that the same combination will exist in relation to other tribunals or commissions (except, as noted above, in relation to a certain aspect of the National Native Title Tribunal's powers)

Ways of rectifying the problem

At present, the Human Rights and Equal Opportunity Commission's determinations under the Racial Discrimination Act 1975 are unenforceable. There are a number of ways in which the legislation could be amended to achieve enforceable orders in discrimination matters.

The first is to return to the scheme that existed before the 1992 amendments. In that period, if the Commission made a determination, and a party did not comply with it, the other party or the Commission could commence proceedings in the Federal Court. The Federal Court had to hear the matter all over again, so that it could independently exercise its judicial power. The High Court in Brandy recognised that this scheme was constitutionally valid.

The disadvantage of this former scheme is that the person who has suffered from discrimination may well be required to go through the trauma of three full proceedings before the matter is resolved. First there are the conciliation proceedings. If these fail, then the matter proceeds to a full inquiry before the Commission. If the respondent refuses to accept the Commission's determination, then the entire matter is heard again before the Federal Court.

A simpler solution is to have only two stages. The Commission's role would be confined to conciliation, and if conciliation failed, the matter would then be heard by a court. A special branch of the Federal Court could be created to hear these cases in an expeditious and less formal manner, with special rules of court, as is done for the Family Court. As noted in Part 1, when the Racial Discrimination Act 1975 was originally enacted, the power to make determinations was specifically kept from the Commissioner, on the basis that conciliation is undermined if a party knows that the Commissioner may take sides in the future and make a finding against the party.

It should also be noted that in submissions to the Senate Standing Committee on Legal and Constitutional Affairs, in 1992, bodies such as the Legal Aid Office of Queensland 69 and the Australian Law Reform Commission 70 recommended that the determinative function be taken away from HREOC and granted directly to the courts.

A third alternative was raised in a submission to the Senate Committee by the Anti- Discrimination Board of New South Wales. It proposed that federal jurisdiction should be vested in State courts, noting that State discrimination tribunals have been deemed to be courts because the separation of powers does not apply to the States. 71 Accordingly these State bodies could validly exercise federal jurisdiction under Commonwealth human rights legislation, as long as they are considered to be State courts for the purposes of Chapter III of the Commonwealth Constitution.

A fourth alternative was raised in the initial submission by the Attorney- General's Department to the Senate Committee. It suggested that the Commission could be given powers which are arbitral in nature, rather than judicial.

1 This paper is partly based on post graduate research which was used in the preparation of the applicant's case before the High Court.

2

Unreported, High Court, F.C. 95/006, 23 February 1995.

3

Australia. House of Representatives. Debates, 13 February 1975: 286.

4

Australia. Senate. Debates, 31 October 1974: 2192 per Senator Murphy.

5

Moss, I., 'Human Rights Agencies and the Protection of Individual Rights', in McMillan, J. (ed.), Administrative Law: Does the Public Benefit? Australian Institute of Administrative Law Inc., 1992: 69.

6

Racial Discrimination Act 1975: s. 20.

7

Racial Discrimination Act 1975: s. 20.

8

Racial Discrimination Act 1975: s. 24.

9

Racial Discrimination Act 1975: s. 25.

10

The International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons, as well as such other international instruments as are declared by the Minister from time to time.

11

Human Rights Commission Act 1981: s. 9(1).

12

Sex Discrimination Act 1984: s. 81(1).

13

Sex Discrimination Act 1984: s. 81(2).

14

Sex Discrimination Act 1984: s. 82. In Aldridge v Booth (1988) 80 A (discussed below), the Federal Court held that the power to 'enforce' a determination of a the Commission, involved the Court satisfying itself as to all matters of fact and law, and reaching its own determination.

15

Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986

16

Racial Discrimination Act 1975: s. 25Z(1); and Sex Discrimination Act:

17

Sex Discrimination and Other Legislation Amendment Act 1992, discussed belo

18

Sex Discrimination Act 1984: s. 82; and Racial Discrimination Act 1975:

19

(1988) 80 ALR 1; (1988) EOC 92- 222.

20

(1988) 80 ALR 1, 6- 7; (1988) EOC 92- 222, at pp 77,087- 88.

21

(1988) 80 ALR 1, 8; (1988) EOC 92- 222, at p 77,088.

22

Unreported, Case No. T.G. 11 of 1987, 27 May 1988; see summary at (1988) EOC 92- 226.

23

(1988) EOC 92- 226, at p 77,131.

24

(1989) EOC 92- 250; (1989) 85 ALR 503.

25

(1989) EOC 92- 250, at p 77,399.

26

Unreported, Case No. T.G. 11 of 1987, 27 May 1988.

27

See, e.g.: Submission No. 2 by the Legal Aid Office (Queensland); Submission No. 3 by the Anti- Discrimination Board of New South Wales; Submission No. 5 by Equal Opportunity Practitioners in Higher Education; Submission No. 7 by the Legal Aid Commission of Victoria; Submission No. 8 by the Human Rights and Equal Opportunity Commission; and Submission No. 13 by the Australian Law Reform Commission, to the Senate Standing Committee on Legal and Constitutional Affairs.

28

Human Rights and Equal Opportunity Commission, 4 June 1991, Submission No. 8 to the Senate Standing Committee on Legal and Constitutional Affairs.

29

Attorney- General's Department, July 1991, Submission No. 9 to the Senate Standing Committee on Legal and Constitutional Affairs: p 10.

30

See discussion below. The creation of rights involves the use of administrative, not judicial, power.

31

Attorney- General's Department, July 1991, Submission No. 9 to the Senate Standing Committee on Legal and Constitutional Affairs: p 8.

32

Rose, D., Opinion of the Chief General Counsel, 12 November 1991, Submission No. 15 to the Senate Standing Committee on Legal and Constitutional Affairs: paragraph 7.

33

Senate Standing Committee on Legal and Constitutional Affairs, Review of Determinations of the Human Rights and Equal Opportunity Commission and the Privacy Commissioner, November 1992: p 36.

34

This provision contrasts with the recommendation of the Senate Standing Committee on Legal and Constitutional Affairs that the Commission's determination should be registered with the Court after 30 days, only if it had not been acted upon.

35

Racial Discrimination Act 1975: s. 25ZAA.

36

Racial Discrimination Act 1975: s. 25ZAA(3).

37

Racial Discrimination Act 1975: s. 25ZAB.

38

Racial Discrimination Act 1975: s. 25ZAC.

39

New South Wales v The Commonwealth (1915) 20 CLR 54, at 62, 89- 90, 108- 9; Waterside Workers' Federation of Australia v J.W. Alexander Ltd (1918) 25 CLR 434.

40

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 2

41

New South Wales v The Commonwealth (1915) 20 CLR 54; Waterside Workers' Federation of Australia v J. W. Alexander Ltd (1918) 25 CLR 434.

42

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

43

R v Davison (1954) 90 CLR 353, per Dixon C.J. and McTiernan J. at 366; R Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, per Windeyer J. at 394;

44

Huddart Parker v Moorehead (1909) 8 CLR 330, 357.

45

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 1 CLR 361, 374- 75

46

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 1 CLR 361.

47

Waterside Workers' Federation of Australia v J. W. Alexander Ltd (1918) 25 434, 451.

48

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656, 666. See also Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 140, 149.

49

Waterside Workers' Federation of Australia v J.W. Alexander Ltd (1918) 25 C 434, 442.

50

Waterside Workers' Federation of Australia v J. W. Alexander Ltd (1918) 25 434, 451, and per Griffith J. at 442 and 444. See also similar comments: Rola Co. (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185, per Starke J. at 210; and Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, per Brennan, Deane and Dawson JJ. at 27.

51

This was noted by members of the Federal Court in Aldridge v Booth (1988) 8 ALR 1, 6- 7; Maynard v Neilson, unreported, Case No. T.G. 11 of 1987, 27 May 1988; and Hall v A A Sheiban Pty Ltd (1989) 85 ALR 503.

52

Transcript, F.C. 95/006, per Mason, Brennan and Toohey JJ. at 11; and per Deane, Dawson, Gaudron and McHugh JJ. at 23- 25.

53

Transcript, F.C. 95/006, per Deane, Dawson, Gaudron and McHugh JJ. at 25.

54

Transcript, F.C. 95/006, per Mason CJ, Brennan and Toohey JJ at 13; and per Deane, Dawson, Gaudron and McHugh JJ at 25.

55

Transcript, F.C. 95/006, at p 25.

56

Transcript, F.C. 95/006, at p 26.

57

Transcript, F.C. 95/006, at p 12.

58

Transcript, F.C. 95/006, per Mason CJ, Brennan and Toohey JJ. at 15; see also per Deane, Dawson, Gaudron and McHugh JJ. at 26.

59

Transcript, F.C. 95/006, at 27.

60

Transcript, F.C. 95/006, per Deane, Dawson, Gaudron and McHugh JJ. at 27; see also Mason CJ, Brennan and Toohey JJ at 17.

61

Transcript, F.C. 95/006, per Mason CJ, Brennan and Toohey JJ. at 13; and per Deane, Dawson, Gaudron and McHugh JJ. at 25.

62 Australia. Parliamentary Debates. Senate Legal and Constitutional Legislation Committee, 28 February 1995, LC 402 per Mr Colin Neave.

63

Part 6, Division 5, Subdivision E.

64

Section 162.

65

Section 39.

66

(1991) 173 CLR 167, 188- 89.

67

(1987) 163 CLR 656, 666. See also Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 140, 149.

68

Harris v Caladine (1991) 172 CLR 84, esp. per Toohey J. at 133; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, per Gibbs C.J., Stephen, Mason, and Wilson JJ. at 163.

69

Legal Aid Office (Queensland), 11 April 1991, Submission No. 2 to the Senate Standing Committee on Legal and Constitutional Affairs.

70

Australian Law Reform Commission, 3 October 1991, Submission No. 13 to the Senate Standing Committee on Legal and Constitutional Affairs.

71

Anti- Discrimination Board of NSW, 10 April 1991, Submission No. 3 to the Senate Standing Committee on Legal and Constitutional Affairs.