Brandy V Human Rights And Equal Opportunity Commission Case Summary

CASE NOTE ASSIGNMENT

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Judges: Mason CJ, Brennan J, Deane J, Dawson J, Toohey J, Gaudron J, McHugh J
Plaintiff: Mr Harry Brandy
Defence: Mr John Bell, Mr. A R Castan AM, QC and the Human Rights and Equal Opportunity Commission.
Court: High Court of Australia

Date of Judgment: 23rd of February 1995

Student number: u3177954

I The Case

The Material Facts And Relevant Law In The Case:

John Bell made a complaint against Harry Brandy who was his colleague at the Aboriginal and Torres Strait Islander Commission. Bell made a complaint to the Human Rights and Equal Opportunity Commission alleging verbal ill treatment and intimidating conduct by Brandy. HREOC found that Bell’s complaint was justified and

declared that ATSIC as well as Brandy were to apologise and pay compensation to Bell. ATSIC was additionally directed to sanction Brandy for his conduct.

Both of these decisions were made in accordance with s25Z of the Racial Discrimination Act 1975 . Section 25ZAA of the RDA necessitated that decisions made towards s25Z were to be submitted and recorded in a Federal Court Registry. Once it was registered, the determination would have standing as if it were an injunction handed by the federal court. The Federal Court had the capability, upon application, to analyse all relevant facts and laws pertaining to a decision, and to hand down decisions as it desired. The commission’s judgment was accordingly lodged and recorded in the Federal Court Registry.

Brandy originally requested for an evaluation in the Federal Court, however he later initiated matters in the High Court. He alleged that clauses in the RDA that catered for enforceability of the Commission’s decision upon enrollment into the Federal Court registry were not valid. It was particularly asserted that the applicable sections of the RDA added up to an exercise of judicial power otherwise than in compliance “with the provisions in Chapter III of the Commonwealth Constitution”. This claim lay on the assertion that the Commission wasn’t a court founded pursuant to s.71 and constituted in conformity with s.72 of the Constitution.

Gaudron J then retained the following question for the deliberation of the Full Court:

In consequence of the amendments embodies in the Sex Discrimination and other Legislation Amendment Act 1992 and/ or the Law and Justice Legislation Amendment Act 1993 as they affect the Racial Discrimination 1975 are any, and if so which, of the provisions of Pt III of the Racial Discrimination Act invalid?

The Reasoning Of The Judge/s (Including Any Dissenting Judgments):

The High Court consistently came to the judgment that ss.25ZAB; 25ZAC and 25ZC of the Racial Discrimination Act were all void. Similarly they unanimously agreed that the assessable provisions encompassed within the revised provisions of the RDA had no effect on this authority. “The majority also declared s. 25ZAA to be invalid, the minority did not consider this point.” There were two compatible views conveyed in Brandy v HREOC.

The Ratio Decidendi:

The reasoning behind the decision of the case stems from judicial power. Mason CJ notes “only a court can exercise the judicial power of the Commonwealth.” Griffith CJ identified the signs or indications of the power of the judiciary in Huddart Parker & Co Pty Ltd v Moorehead and Waterside Workers’ Federation of Australia v J W Alexander Ltd .

He states that the purpose of the HREOC is not of an arbitral nature. This is due to the fact that “the object of the inquiry into and determination of the matters in issue is the ascertainment of legal tights and obligations.” Mason CJ goes on to state that the Registrar is merely obligated to register determinations by s25ZAA. The registrar does possess the choice to refuse, as he isn’t acting as a court delegate.

Due to the vast amount of definitions to define judicial power, in the case of R v Davidson, Dixon CJ and McTiernan J examined that:

“The enforcement of a judgment or judicial decree by the court itself cannot be a necessary attribute of a court exercising judicial power. The power to award execution might not belong to a tribunal, and yet its determinations might clearly amount to an exercise of the judicial power. Indeed it may be said that an order of a court of petty sessions for the payment of money is an example. For warrants for the execution of such an order are granted by a justice of the peace as an independent administrative act”.

The reality that the Commission has no power to impose its own determinations is a strong influence opposing the characterisation of its authority as judicial, however it is to be accepted that this isn’t a restricted measure of the exercise of judicial power.

The Obiter Dicta (If Any):

J Basten QC (with him N J Williams) desired to appear as amicus curiae and therefore submit an application for leave.

The Orders In The Case:

In response to the reserved question:

‘In consequence of the amendments embodied in the Sex Discrimination and Other Legislation Amendment Act 1992 and/or the Law and Justice Legislation Amendment Act 1993 as they affect the Racial Discrimination Act 1975 are any, and if so which, of the provisions of Part 111 of the Racial Discrimination Act invalid?’

The answer was that 25ZAA, 25ZAB and 25ZAC were indeed invalid.

The second order required that the plaintiff’s legal costs be paid by the first defendant.

II Analysis

The case of Brandy v Human Rights and Equal Opportunity Commission is a momentous one as it highlights the reduced number of bodies, which hold the capability to wield judicial power. The verdict of Brandy v HREOC underlined the notion that certain administrative bodies and non-judicial courts, which weren’t established as a Chapter III constitutional court, had no ability to employ judicial power.

This effect was dual, in the sense that it paused the formation of numerous non-judicial bodies that were going to be vested with certain responsibilities, in addition to forestalling the establishment of a different Chapter III court to regulate applications of this type, presently recognised as the Federal Magistrates Court. The ruling illustrated certain disadvantages, such as the issue of incompetence and steep expenses, which incited the establishment of the amendment legislation for the Racial Discrimination Act in the first place. It however appears to be warranted as transferring the courts’ power to resolve such disputes and conferring it in a tribunal raises issues of justice.

Function of the Human Rights and Equal Opportunity Commission

Subsequent to the Brandy judgment, the Human Rights and Equal Opportunity Commission issued a comment in which it was emphasised that news speculation that the Commission had been deprived of its powers by the High Court was vastly overstated. The issued comment made it clear that the bulk of disputes presented to the Commission were settled by conciliation and rarely got pushed to the hearing process. The Commission also executes numerous administrative operations and presents advisory viewpoints. It has the ability to arrange for an investigation into its own contraventions into operations or practices, which may be prejudiced. It can also request leave to interfere in court affairs involving human rights or equal opportunity issues.

III Conclusion

The Brandy v Human Rights and Equal Opportunity Commission case holds constitutional significance as it allows a court to analyse whether judicial power is being exercised correctly or not.

This was key in confirming the separation of powers and its importance within the Commonwealth.

Bibliography

Cases

1. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

2. Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330

3. Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434

4. Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 127 ALR 1

Articles

1. Matthew G. Cowman, Separation of judicial power: Brandy v Human Rights and Equal Opportunity Commission, Deakin Law Review 119

2. Elizabeth Henderson, Trials, tribunals and tribulations: Brandy v Human Rights and Equal Opportunities Commission [1995] Sydney Law Review Vol. 17, 587

3. Brandy V Human Rights And Equal Opportunity Commission (2017) Wikipedia The Free Encyclopedia https://en.wikipedia.org/wiki/Brandy_v_Human_Rights_and_Equal_Opportunity_Commission

Legislation

1. Racial Discrimination Act 1975

(Cth)