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Brandy v Human Rights and Equal Opportunity Commission

Brandy v Human Rights and Equal Opportunity Commission

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Case Copied 23 February 1995 50 min read

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HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

HARRY BRANDY v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND ORS

(1995) 183 CLR 245

23 February 1995

Constitutional Law (Cth)—Judicial power of Commonwealth—Human Rights and Equal Opportunity Commission—Racial discrimination Complaint that person has done unlawful act—Inquiry by Commission—Commission not constituted as federal court—Powers—To dismiss complaint—To make determination—Determination not binding or conclusive—Registration in Federal Court—Registered determination effective as if Court order—Right for respondent to apply for review by Court—Power of Court to review all issues of fact and law—New evidence not adducible without leave—The Constitution (63 and 64 Vict c 12), Ch III—Racial Discrimination Act 1975 (Cth), ss 25Z, 25ZAA, 25ZAB,25ZAC,25ZC.

Headnote

The Racial Discrimination Act 1975 (Cth) (as amended by the Sex Discrimination and other Legislation Amendment Act 1992 (Cth) and the Law and Justice Legislation Amendment Act 1993 (Cth)) made certain described conduct, constituting racial discrimination, unlawful and provided for the lodging of written complaints with the Human Rights and Equal Opportunity Commission that a person had done an act that was unlawful by virtue of the Act. The Commission was obliged to hold an inquiry into each complaint referred to it by the Commissioner (after his own inquiry into the matter) or into any other matter referred to it by the Minister for inquiry as a complaint: ss 24, 25A. After holding an inquiry, the Commission was empowered (a) to dismiss the complaint; or (b) to find it substantiated and make a determination, which might include any one or more of the following: (i) a declaration that the respondent had engaged in conduct rendered unlawful by the Act and should not repeat or continue such unlawful conduct; (ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; (iii) a declaration that the respondent should employ or re-employ the complainant; (iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the respondent's conduct; (v) a declaration that the respondent should promote the complainant; (vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant; (vii) a declaration that it was inappropriate for any further action to be taken in the matter: s 25Z(1). A determination under s 25Z(1) was not binding or conclusive between any of the parties to it: s 25Z(2). The Commission, however, was required to lodge a determination in a registry of the Federal Court as soon as practicable and the registrar was required to register it: s 25ZAA(2), (3). Upon registration the determination was to have effect as if it were an order made by that Court: s 25ZAB(1). But no action to enforce it could be taken before the end of the "normal application and review period" and a failure by the respondent to comply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] HCA 10
Decision Date: 23 February 1995

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Brandy against a decision of the Human Rights and Equal Opportunity Commission (HREOC) and the subsequent judgment of the Federal Court. Mr Brandy had lodged a complaint with HREOC alleging racial discrimination, which HREOC found to be substantiated. However, the Commission's recommendation that Mr Brandy be paid compensation was not implemented by the Attorney-General, leading Mr Brandy to seek judicial review of HREOC's decision and the Attorney-General's inaction.

The central legal issue before the High Court was whether the recommendations made by HREOC under the *Racial Discrimination Act 1975* (Cth) were binding and enforceable, or merely advisory. This question involved an interpretation of the statutory framework governing the Commission's powers and the legal effect of its findings and recommendations in relation to complaints of unlawful discrimination.

The High Court, by majority, held that the recommendations of HREOC were not binding. The Court reasoned that the *Racial Discrimination Act 1975* did not confer upon HREOC the power to make legally enforceable orders. Instead, the Commission's role was to investigate and make recommendations, with the ultimate power to enforce such recommendations resting with the Attorney-General, who could then apply to the Federal Court for an order. As HREOC's recommendations were not binding, the Court found that there was no legal basis for Mr Brandy to seek judicial review of the Commission's decision or the Attorney-General's failure to implement the recommendations. The appeal was dismissed.

Orders