Facts of the case

Up until 1992, Australia's Human Rights and Equal Opportunity Commission

Human Rights and Equal Opportunity Commission

The Australian Human Rights Commission is a national human rights institution, a statutory body funded by, but operating independently of, the Australian Government. It has the responsibility for investigating alleged infringements under Australia’s anti-discrimination legislation...

 (the HREOC), in response to complaints of racial discrimination

Racism

Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...

 lodged in accordance with the Racial Discrimination Act 1975

Racial Discrimination Act 1975

The Racial Discrimination Act 1975 is a statute passed by the Australian Parliament during the Prime Ministership of Labor Gough Whitlam....

 (Cth) (the RDA), was able to make determinations. These were voluntary, and in the event complainants chose not to comply with them, there was no mechanism for enforcement. The only option available to complainants was to make an application to the Federal Court

Federal Court of Australia

The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...

 to have the matter re-heard.

The case of Maynard v Neilson criticised this process as being costly and unnecessarily repetitive. This prompted the federal government

Government of Australia

The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...

 to legislate amendments to the RDA in order to rectify the problem. These were the Sex Discrimination and other Legislation Amendment Act 1992 and the Law and Justice Legislation Amendment Act 1993. The sections which these amendments introduced into Part III of the RDA allowed for determinations made by the HREOC to be registered with the Federal Court. These determinations, upon registration, would have the effect of being an order made by the Federal court, unless a respondent applied for a review.

In the Brandy case, Harry Brandy and John Bell were both officers of the Aboriginal and Torres Strait Islander Commission

Aboriginal and Torres Strait Islander Commission

The Aboriginal and Torres Strait Islander Commission was the Australian Government body through which Aboriginal Australians and Torres Strait Islanders were formally involved in the processes of government affecting their lives...

 (ATSIC). Bell lodged a complaint against Brandy and ATSIC with the HREOC alleging contraventions to the RDA. The HREOC conducted an inquiry and handed down a determination that both Brandy and ATSIC were to pay compensation to Bell and to apologise to him. This determination was registered with the Federal Court, prompting Brandy to firstly seek a review and secondly to make an application to the High Court

High Court of Australia

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 for the present case.

Legal issue

The Question before the court was, in the words of Justice Gaudron

Mary Gaudron

Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...

 – “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 III of the Racial Discrimination Act 1975 invalid?”

Judgment and outcome of the case

A unanimous decision was returned by the High Court through two judgments, one by Mason CJ, Brennan

Gerard Brennan

Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....

 and Toohey JJ, the other by Deane

William Deane

Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...

, Dawson

Daryl Dawson

Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...

, Gaudron and McHugh

Michael McHugh

Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...

 JJ. The court found that sections 25ZAB, 25ZAC and 25ZC of the RDA which had been implemented by the two prior mentioned amendments were invalid. Deane, Dawson, Gaudron and McHugh JJ also declared section 25ZAA to be invalid. The other judges did not consider this issue.

This decision was formulated from the consideration of the definition of judicial power, the starting point of which was noted to be the judgment of Griffith

Samuel Griffith

Sir Samuel Walker Griffith GCMG QC, was an Australian politician, Premier of Queensland, Chief Justice of the High Court of Australia and a principal author of the Constitution of Australia.-Early life:...

 CJ in the case of Huddart, Parker and Co Pty Ltd v Moorehead. This case encapsulated a definition of judicial power which included binging and authoritative decisions of controversies between subjects by Chapter III courts of the Constitution

Constitution of Australia

The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...

.

The key factor in the decision of the sections being deemed invalid was the enforceability of the determinations. Mason CJ, Brennan and Toohey JJ stated that “if it were not for the provisions providing the registration and enforcement of the Commission’s determinations, it would be plain that the Commission does not exercise judicial power”. Thus, prior to the inclusion of the amendments, the HREOC was not exercising judicial power upon making determinations with regards to complaints of discrimination. By allowing determinations to be registered with the Federal Court to effectively become as an order from that court was to make the determinations enforceable. This was thought by the court to be an exercise of judicial power by a body which could not be vested with such power. This is because the HREOC was not a court in accordance with sections 71 and 72 of the Constitution and thus not a Chapter III court able of exercising judicial power.

The case of Brandy is constitutionally significant firstly because its decision re-emphasises the limited number of bodies which are permitted to exercise judicial power. The decision of Brandy emphasised the fact that non-judicial tribunals and other administrative bodies which did not constitute a Chapter III court of the constitution could not exercise judicial power. This had a twofold effect in that it halted the creation of a number of non-judicial bodies which were to be empowered with such responsibilities, as well as pre-empting the creation of another Chapter III court to manage claims of this nature, which is today known as the Federal Magistrates Court. The decision did have drawbacks, as the problem of inefficiency and high costs, which prompted the creation of the amendment legislation for the RDA in the first place, is still apparent. However, it seems justified as reallocating the courts power to determine such disputes and vesting it in a tribunal raises questions of fairness.

The final point of constitutional significance arising from the case of Brandy is the formulation of four guidelines in the Deane, Dawson, Gaudron and McHugh JJ judgment which allow a court to determine whether or not judicial power is being exercised. The four points are:

1. The determination of a controversy between parties
2. Which is based upon existing facts and the application of law
3. Resulting in the awarding of remedies
4. Which constitute a binding and enforceable decision

These reiterate what are considered to be key characteristics of judicial power. However, these are no necessarily exhaustive, but are definitely a good indicator of judicial power being exercised.