Brandy V Hrec

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
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
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