MacIntyre, Greg --- "Brandy: Against the Spirit of Our Laws? Brandy v HREOC" [1995] AboriginalLawB 31; (1995) 3(73) Aboriginal Law Bulletin 20

• Brandy: Against The Spirit Of Our Laws?

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Brandy: Against the Spirit of Our Laws?

Brandy v Human Rights and Equal Opportunity Commission

High Court of Australia

[1995] HCA 10

23 February 1993

by Greg Maclntyre

Harry Brandy is an Officer of the Aboriginal and Torres Strait Islander Commission (ATSIC) against whom another Officer of ATSIC lodged a complaint under the Racial Discrimination Act 1975 (Cth) (the RDA) to the Human Rights and Equal Opportunity Commission (HREOC) alleging verbal abuse and threatening behaviour on the part of Brandy, and complaining of the inadequacy of the response of ATSIC and its Chief Executive Officer. The complaint alleged racial discrimination pursuant to ss9 and 15 of the RDA.

Mr A.R. Castan QC, appointed by HREOC, held an inquiry into the allegations and made a determination pursuant to s25Z of the RDA declaring that the plaintiff apologise and pay $2500 damages to the complainant and that ATSIC take disciplinary action against the plaintiff, apologise to the complainant and pay $10,000 by way of damages.

Section 25Z(2) makes it clear that the declaration of HREOC is "not binding or conclusive" between the parties. Section 25ZAA(2) and (3) provide that HREOC is required after a determination is made to lodge it in the Registry of the Federal Court and the Registrar is then required to register it. Section 25ZAB(1) of the RDA provides that, upon registration of the determination, it has effect "as if it were an order made by the Federal Court".

The registration procedure and the declarations as to the consequential effect were introduced into the RDA by the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) and the Law and Justice Amendment Act 1993 (Cth).

Prior to the introduction of those procedures, the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth) had enacted a procedure which empowered HREOC or a complainant to institute proceedings in the Federal Court to enforce a determination made by HREOC.

As Mason CJ and Brennan and Toohey JJ in a joint judgment pointed out, under the 1986 provisions an independent exercise of judicial power by the Federal Court was required to give effect to the determination.

The Court held unanimously that the 1992 and 1993 amendments, purporting to make a. determination of HREOC binding by a process of registration in the Federal Court, were invalid.

The Court held that the effect of the provisions was to attempt to vest in HREOC, which is not a Court, judicial power contrary to s71 of the Comniomvealth Constitution.

The Court rejected arguments for the Commonwealth that the provision of a review process to be conducted by the Federal Court was sufficient to constitute the proceedings in the Federal Court as an original procedure or a process analogous to a default judgment. Those arguments were described as "without substance" and "tenuous" respectively by Mason CJ, Brennan and Toohey fl. The Court considered the meaning of the words "judicial power". All members of the Court referred to the words of Griffiths CJ in Huddert, Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357 in which he said:

"[t]he exercise of [judicial] power does not begin until some Tribunal which has power to give a binding and authorita tive decision (whether subject to Appeal or not) is called upon to take action".

Allmembers of the Court acknowledged the "difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive". (Precision Data Holdings Ltd v Wills (1991). 173 CLR 167 at 188-189.)

The Court took into account that in Rola Co Australia Ply Ltd v The Commonwealth [1944] HCA 17; (1994) 69 CLR 185 at 199, Latham CJ said that:

"If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then, but only then, according to definition quoted, all the attributes of judicial power are plainly present [and] a tribunal is not necessarily a court because it gave decisions (even final decisions), between contending parties which affected their rights".

The Court also took into account the dicta of Dixon CJ and McTiernan J in Reg v Davison [1954] HCA 46; (1954) 90 CLR 353 at 368 which suggests that, while the fact that HREOC cannot enforce its determinations is a strong factor weighing against the characterisation of its power as judicial:

"This is not an exclusive test of the exercise of judicial power". (Mason CJ and

Brennan and Toohey JJ at page 9.)

Mason CJ and Brennan and Toohey JJ, after considering the dicta of Dixon CJ and McTiernan J in Reg v Davison at 369 suggesting that "judicial determination" means "an authoritative determination by means of the judicial method, i.e., an enforceable decision", concluded that the process engaged in by Mr Castan as Commissioner of HREOC became of that character upon the registration of the determination and as a consequence of the provision in the RDA for enforcement as if the determination were an order of the Federal Court.

Deane, Dawson, Gaudron and McHugh JJ pointed out that "it is not essential to the exercise of judicial power that the Tribunal should be called upon to execute its own decision" (at page 24).

The Brandy decision has direct ramifications for the operations of not only HREOC but also the National Native Title Tribunal (NNTT), which is given similar powers to make determinations, which become enforce able upon registration in the Federal Court. The following collection of determinations made by the NNTT could be said to determine rights finally:

1. The decision of the Registrar to accept or refer to a Presidential Member an application for a native title determination or for compensation (s63(1) and (2), s64(1)).

2. The decision of a Presidential Member to direct the Registrar to accept or not accept the application (s63(3) and (4); s64(2) and (30)).

3. The decision of a Presidential Member that a person can be a party to an application (s69).

4. The decision of the President to direct a mediation conference (s72).

5. The decision to terminate a mediation and referral of an application to the Federal Court by the Registrar (s74).

6. The decision of the Tribunal to make or not make a determination in respect of an unopposed application or pursuant to an agreement (ss70, 71 and 73).

7. The decision of the Registrar to accept or not accept an application objecting to the expedited procedures and to accept or not accept a future actt determination application (s77).

8. The decision of the Tribunal as an arbitral body on whether a proposed future act is an act attracting the expedited procedure (s32(4)).

9. The decision of the Tribunal as an arbitral body in deciding whether or not a future act can be done and, if so, subject to what conditions (s38).

10. The decision of the Tribunal to dismiss an application at the inquiry stage as frivolous or vexatious or where no prima facie case is made out or where an applicant requests dismissal (ss147, 148 and 149).

(See R.S. French, President, NNTT, Discussion Paper on Proposed Changes to the Native Title Act 1993,14 March 1995.)

It is certainly arguable on the basis of the decision in Brandy that those decisions are exercises of judicial power by persons other than a court, contrary to s71 of the Constitution.