Consitutional issue in Brandy V HREOC Essay

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Consitutional issue in Brandy V HREOC

The case Brandy V Human Rights and Equal Opportunity Commission challenges the constitutional validity of the scheme for the enforcement of Human Rights and Equal Opportunity Commission (HREOC) determination under the Racial Discrimination Act 1975 (Cth). The High Court of Australia had decided that since HREOC was not constituted as a court according to Chapter III of the Constitution, and therefore was not able to exercise judicial power of commonwealth and enforce any subsequent decisions.

The Constitution is divided into separate chapters dealing separately with the parliament, executive and the Judicature. The “pure” doctrine of separation of powers prescribes that the functions of the three arms of government be clearly and institutionally separated . It is important to note that Australia does not have a pure separation of power because we inherited the British Westminster tradition. For example, Chapter I legislative parliament and Chapter II executive are seemingly two independent arms of Constitution, but in practice, this distinction between the executive and legislature is blurred, such that the Commonwealth Ministers are simultaneously members of the executive and the legislature, as it is required by s 64 of the Commonwealth Constitution. However, there is a rigid separation of power in Judicature as described by Chapter III of the Constitution, this characteristic is evident in Brandy V HREOC. The decision made by High Court invalidated the enforcement mechanism for decisions of HREOC on the grounds that it infringed the doctrine of separation of powers. This is also evident in the Boilermaker’s case3 whereby the High Court argued the relevant legislation was impermissible under the separation of judicial power principle.

The High Court determines the Constitutional issue as the judges seeks to define “judicial power”. Though the nature and scope of federal judicial power was not exhaustively defined, but High Court concluded only those courts under Chapter III of the Constitution can exercise federal judicial power, however HREOC is not a Chapter III court, so it could not exercise judicial power of Commonwealth. More specifically, High Court held that ss 25ZAA, 25ZAB and 25ZAC of the Racial Discriminate Act 1975 (CTH) governing the registration and enforcement of HREOC determinations were invalid because those provisions had the effect of making HREOC determination binding and conclusive “as if it was an order made by the Federal Court”4. A judicial order made by the federal Court takes effect as an exercise of Commonwealth Judicial power, but a determination by the HREOC is neither made nor registered in the exercise of judicial power. On this basis, the High Court held the relevant provisions of the amended Racial Discrimination Act 1975 (CTH) invalid, as it contravenes Chapter III of the Constitution.

The High Court’s decision did not address the subject matter of the case, the human rights issue was not even mentioned throughout the reasoning of the judgements. Personally, I believe the decision is technically fair as it is based on the separation of power, but its lack of consideration in human rights issue resulted the victim suffering the consequence of racial abuse without any legal action being acted upon because it could not be enforced by HREOC. So the question remains, can the separation of power really act as safeguard to individual rights or is it merely legal fiction?

Apart from resolving the Constitutional issue and finalized the dispute. The decision made by High Court also invalidated the amendments of Racial Discrimination Act 1975 (Cth), which means from the day High Court passed on the final decision, HREOC, and other similar commissions including the Industrial Relations Commission and the Australian Broadcasting Authority could not make any determination and enforce any judicial decisions by registering their determination in the Federal Court5. Ironically, the contemporary notion ‘access to justice’ seems to be ignored as the doctrine of separation of power is highlighted. The amendments was made to create efficiency and accessibility of the administration of justice in human rights, so that the public can claim their human rights without going to the court, which is usually rather costly, overly formal, often intimidating6.

As the invalidation of amendments takes place, previous costly and problematic enforcement procedures of the Commission returns, the restatement of the importance of the constitutional doctrine of separation of powers and uncertainty in the protection of human rights also are evident7. It is almost rhetorical what role does HREOC provide to the public in terms of claiming their human rights since the invalidation of amendments? This question illustrates the tension created between the courts that are vested with judicial power and commissions as a result of High Court’s decision. The inconsistency between Commonwealth legislation and the commission which is appointed under Commonwealth legislation, in which resulted invalidation of the amendments shows the dominance in which the High Court has over the other branches of the government. As stated explicitly in s 109 of the Constitution:

“when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”8.

The concept of parliamentary supremacy and sovereignty is significant in the decision of High Court. It is mentioned briefly above that Australia inherited the Westminster tradition from United Kingdom, as under British Constitutional law, the Parliament has absolute sovereignty and therefore has the power to make or unmake any law. Though this idea of absolute power is less obvious in Australia as we have doctrine of separation of power, but the Brandy case surely highlighted the fact that separation of power in Australian Constitution is not clear and the parliamentary supremacy has the absolute power over other branches of government. Therefore, the High Court relied upon arguments of separation of judicial power in arriving at conclusion, rather than articulating principles relating to those individual rights as justifying those decisions.

The decision made by the High Court concerns with constitutional validity rather than the issue of racial discrimination, thus it is fair to say the decision is legally justified but it did not morally justified. This can be explained by the rigid characteristics of western law as discussed by Patrick Parkinson, namely autonomy of law, which is conceptually distinct from custom, morality, religion or politics . This concept is reflected in the Brandy case that High Court adopted legal formalism (an interpretation of legal texts focussing closely on the words, a rule based approach with little or no regard to social, political consideration ) and procedural approach rather than legal instrumentalism (a view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests ) and substantive approach.

The High Court seeks to achieve justice by consistently applying rules and procedures that shape a fair, consistent and predictable legal system and constrains government arbitrariness. It does not concern whether the end result will be substantive, as such it satisfies ethical, emotional or political factors. This notion of justice is more concerned with process and procedure than the result. As Selznick says, “legality has to do mainly with how policies and rules are made and applied rather than with their contents “. As a result, High Court held that the enforcement of determinations administered by HREOC was invalid based on the technical ground of separation of judicial power, but ignoring the moral issues concerned in the case as they do not promote fairness and consistency.

However, the High Court is now shifting to a system where it seeks to balance out the strict legal framework and social interests. In the context of human rights, this shift is reflected in Australian Capital Television V commonwealth13 and Nationwide News Pty Ltd V Wills14, where the High Court implied issues of human rights in contrast with Brandy V HREOC.

In conclusion, in the case of Brandy V HREOC, from a constitutional law perspective, the decision made by the High Court consolidated the separation of power and the exercise of judicial power. However, it is obvious that the rigid characteristics of traditional western law have contributed towards the inefficiencies to the guarantees of human rights issue.


Dicey, A. V. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund, 1982

Dr Imtiaz Omar, Individual Rights and Judicial Power: the underlying equation (1995) Australasian Law Teachers Associations

Catriona Cook et al, Laying Down the law (6th edition, 2002)

LLB100 Supplementary Reading, University of Wollongong

Imtiaz Omar, “Darkness On the Edge of Town: The High Court And Human Rights in the Brandy case” (1995) 2 Australia Journal of Human Rights

Patrick Gunnings, “Chapter III courts: Evolution of Australia’s Federal Judiciary” (1995) 6 Public Law Review

Alison Gooly, ‘modern framework after Brandy’, (University of Wollongong, 1997)

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