Brandy v Human Rights and Equal Opportunity Commission

[1995] HCA 10

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 with it during that period was not a contravention of the determination: s 25ZAB(3), (4). The normal application and review period was twenty-eight days from the date of registration or, if review was sought, when the review proceedings were completed or otherwise terminated: s 25ZAB(11). Only the respondent was entitled to apply to the Court within twenty-eight days of registration for review of the determination: s 25ZAB(5), (6). The parties to a review were to be the applicant and the complainant: s 25ZAC(2). The Court could review all issues of fact and law (s 25ZAC(4)) but a party could not adduce new evidence without leave: s 25ZAC(5). After reviewing the determination the Court was empowered to "make such orders as it thinks fit (including a declaration of right)" and could confirm a registered determination: s 25ZAC(6). Provision was made by s 25ZC for the granting of financial or legal assistance in review proceedings.


Held, that ss 25ZAA, 25ZAB and 25ZAC of the Racial Discrimination Act 1975 (as amended in 1992 and 1993) purported to vest judicial power in the Commission contrary to Ch III of the Commonwealth Constitution and hence were invalid and s 25ZC was invalid since it depended upon s 25ZAC.

Hearing

CANBERRA, 1994, May 3, February 23
#DATE 23:2:1995


CASE STATED pursuant to the Judiciary Act 1903 (Cth), s 18.

Harry Brandy commenced proceedings in the High Court against the Commonwealth of Australia, the Human Rights and Equal Opportunity Commission, Mr A R Castan AM, QC, and Mr John Bell claiming declarations that ss 25ZAA, 25ZAB and 25ZAC of the Racial Discrimination Act 1975 were invalid. On 22 March 1994, Gaudron J ordered that the Commonwealth of Australia be deleted as the first defendant and that a case be stated to the Full Court. Pursuant to s 18 of the Judiciary Act 1903 (Cth), the following facts were stated and question of law was reserved for consideration:

"Facts Stated

1. The Aboriginal and Torres Strait Islander Commission ('ATSIC') was established on 5 March 1990 by the Aboriginal and Torres Strait Islander Commission Act 1989. ATSIC took over functions and staff of the Department of Aboriginal Affairs ('DAA') which ceased to exist from that date.


2. The plaintiff and the third defendant have at all material times been officers of DAA or ATSIC.


3. On 13 March 1990, pursuant to s 22 of the Racial Discrimination Act 1975 ('the Act'), the third defendant lodged a complaint against ATSIC with the first defendant. The complaint included allegations of verbal abuse and threatening behaviour which the plaintiff allegedly directed towards the third defendant in February 1990 while both were officers of the DAA. There was a further allegation as to the inadequacy of the response of ATSIC and the Chief Executive Officer of ATSIC (Mr Wilfred Gray). The complaint relied upon breaches of ss 9 and 15 of the Act.


4. Pursuant to s 24(5) of the Act, the Race Discrimination Commissioner referred the matter to the first defendant. Pursuant to s 25B of the Act, the power of the first defendant to hold an inquiry into the complaint was exercised by the second defendant (who was duly appointed under s 24F of the Act a person to participate in the performance of the functions of the first defendant). The second defendant held an inquiry into the complaint pursuant to s 25A of the Act. On 18 November 1992, during the course of that inquiry, the second defendant acceded to applications that Mr Gray and the plaintiff be joined as respondents, pursuant to s 25F of the Act.


5. On 22 December 1993, the second defendant handed down a determination pursuant to s 25Z of the Act, in which he found the complaint substantiated, and declared that the following acts or course of conduct should be performed:
(1) that the plaintiff do apologise to the third defendant, the form of the apology being annexed to the determination;
(2) that the plaintiff do pay the sum of $2,500 to the third defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the third defendant;
(3) that ATSIC do take disciplinary action against the plaintiff, in relation to the conduct which he perpetrated against the third defendant;
(4) that ATSIC do apologise to the third defendant in relation to the handling of his complaint, the form of the apology being annexed to the determination;
(5) that ATSIC do pay the sum of $10,000 to the third defendant by way of damages for the pain, humiliation, distress and loss of personal dignity suffered by the third defendant.


6. On 23 December 1993, the first defendant, pursuant to s 25ZAA(2) of the Act, lodged the second defendant's determination in the New South Wales District Registry of the Federal Court.


7. On 23 December 1993, the second defendant's determination was registered pursuant to s 25ZAA(3) of the Act, by a Deputy District Registrar of the Federal Court


8. The first defendant gave notice of the registration of the determination in accordance with s 25ZAA(4) of the Act.


9. On 20 January 1994, the plaintiff applied to the Federal Court, pursuant to s 25ZAB(5) of the Act, for review of the second defendant's determination.


10. The plaintiff alleges that ss 25ZAA, 25ZAB and 25ZAC of the Act are invalid by reason of Chapter III of the Constitution.


Question Reserved

Are any and which parts of ss 25ZAA, 25ZAB and 25ZAC of the Racial Discrimination Act 1975 (Cth) invalid on the ground of inconsistency with Chapter III of the Constitution?"


The case came on before the Full Court on 4 October 1994. During the course of the hearing it was suggested that the parties should apply to Gaudron J for the amendment of the question reserved. As a result of an application the following question was substituted in the stated case:

"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 HI of the Racial Discrimination Act 1975 invalid?"


J Basten QC (with him N J Williams) applied for leave to appear as amicus curiae. In public interest litigation such as this it is desirable that the Court should have the assistance of submissions from community organisations such as the Public Interest Advocacy Centre. Over the past twelve years the Centre's work has developed in line with its charter of promoting the public interest and enhancing the quality of public policy-making through analysing and seeking the reform of laws, policies and practices which are unjust or deficient. Invoking a multi-disciplinary approach to its work which combines legal action, research, policy analysis and campaigning, the Centre's cases and projects have focused on broad public interest concerns with an emphasis on consumer protection and access to justice issues.


The Court adjourned for a short time.


MASON CJ. The Court has concluded that the application should be refused.


G C Corr and A F Twomey, for the plaintiff.


G C Corr. The case concerns the short question of whether ss 25ZAA, 25ZAB and 25ZAC of the Racial Discrimination Act 1975 (Cth) allow for the exercise of the judicial power of the Commonwealth by a body other than a court or a person who is not a judicial officer. (MASON CJ. You are not attacking the validity of s 25Z?) No, but it is arguable that it is invalid too. (MASON CJ. We shall proceed on the footing that your argument assumes the validity of s 25Z.) Only a court can exercise the judicial power of the Commonwealth (1) R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270). The indicia of judicial power were identified by Griffith CJ in Huddart Parker and Co Pty Ltd v Moorehead (2) (1909) 8 CLR 330 at 357) and Waterside Worker' Federation of Australia v J W Alexander Ltd (3) (1918) 25 CLR 434 at 442). Though some functions may overlap, others are clearly inconsistent with judicial or executive action (4) Federal Commissioner of Taxation v Munro (1926) 38 CLR 153). The function of the Commission here is not arbitral because the object of the inquiry into and determination of the matters in issue is the ascertainment of legal rights and obligations (5) See Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666). Whether the broader view of judicial power adopted by Starke J in Victorian Chamber of Manufactures v The Commonwealth (6) (1943) 67 CLR 413 at 422) (ie the determination of whether a Commonwealth law has been contravened) or the narrower view of Latham CJ in Victorian Chamber of Manufactures v The Commonwealth (7) (1943) 67 CLR 413 at 417) (ie such a determination coupled with a penalty) is preferred, the challenged provisions are invalid. Registration under s 25ZAB has the effect of giving the order particular means of enforcement. The separation of the making of the determination from the registration and enforcement does not save the provisions (8) See R v Davison (1954) 90 CLR 353 at 368.). The Registrar is required to register determinations by s 25ZAA(3). He has no discretion to refuse. He is not acting as a delegate of the Court (9) cf Harris v Caladine (1991) 172 CLR 84 at 121, 164). Determinations are not analogous to default judgments. Default judgments are made under the control of the court but it has no control over the registration of determinations of the Commission. The possibility of the review of a determination by the Federal Court does not affect the nature of the original determination (10) Harris v Caladine (1991) 172 CLR 84 at 111, 141). (TOOHEY J. Can an applicant whose complaint is dismissed under s 25Z(1)(a) or who is refused a determination under s 25Z(1)(b) obtain review?) A form of administrative review may be available, but there is no appellate mechanism. (MASON CJ. How does this arrangement differ from that of the old taxation Boards of Review from which an appeal lay to a court in the exercise of original jurisdiction?) (MCHUGH J. It was held in Shell Co of Australia Ltd v Federal Commissioner of Taxation (11) (1930) 44 CLR 530; (1931) AC 275) that the Board of Review was put in the place of the Commissioner.) If there is no application for review the determination takes effect and is clearly an exercise of the judicial power of the Commonwealth.


A F Twomey, following, referred to United States v Raddatz (12) (1980) 447 US 667 at 681); Wharton-Thomas v United States (13) (1983) 721 F (2d) 922,); Northern Pipeline Construction Co v Marathon Pipeline Co (14) (1981) 458 US 50); and Peretz v United States (15) (1991) 501 US 932).


G Griffith QC, Solicitor-General for the Commonwealth, (with him SJ Gageler), for the Attorney-General for the Commonwealth, intervening in support of the defendants. The power to make an authoritative decision whether conduct infringes a federal statutory prohibition is judicial power which may only be conferred on a court constituted under Ch III of the Constitution (16) R v Davison (1954) 90 CLR 353 at 366). The effect of s 25ZAB(1) of the Racial Discrimination Act is to give a determination of the Commission the character of a judicial order upon registration with the Federal Court. It does not follow that the making of a determination is an exercise of judicial power. It is not binding or conclusive: s 25Z(2). The scheme under ss 25ZAA-25ZAC enables a person affected by a determination to elect whether to be bound or to have it reviewed. The Federal Court may review all issues of fact and law and make such orders as it thinks fit (17) cf Harris v Caladine (1991) 172 CLR 84 at 110, 130). This is an exercise of judicial power (18) R v Davison (1954) 90 CLR 353 at 366-370; Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 657, 659-660). (He referred to the Arbitration (Foreign Awards and Agreements) Act 1974 (Cth), s 8(2).) Registration is not a final step of any conclusive determination by the Commission but the first step in engaging the judicial process for review provided by ss 25ZAB and 25ZAC. (He referred to ss 25Z(2), 25Y(2), 25ZAA(4), (3)-(7).) The Registrar's duty is ministerial (19) Le Mesurier v Connor (1929) 42 CLR 481 at 522-523). The ss 25ZAA and 25ZAB procedures are broadly analogous to governing the entry of judgment in default of appearance or defence in ordinary civil actions. (TOOHEY J. Does it not follow from your argument that it is competent for the Parliament to establish tribunals to make determinations in a range of matters all capable of enforcement by registration as orders of the Federal Court so long as provision is made for review by a Ch III court?) Yes, if the review has the capacity to be complete. If s 25ZAA or s 25ZAC is invalid the provisions before the 1992 amendments (Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth), s 17) will be restored (20) Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527; Air Caledonie International v The Commonwealth (1988) 165 CLR 462). Courts in Canada and the United States have taken a different approach to questions of judicial power from Australian courts. It is open there for judicial power to be invested in non-judicial tribunals provided the integrity of judicial power is not threatened (21) Commodity Futures Trading Commission v Schor (1985) 478 US 833 at 851; Re Residential Tenancies Act (1981) 1 SCR 714; (1981) 123 DLR (3d) 554; Sobeys Stores Ltd v Yeomans (1989) 1 SCR 238; (1989) 57 DLR (4th) 1; Chrysler Canada Ltd v Canada (Competition Tribunal) (1992) 2 SCR 394; (1992) 92 DLR (4th) 609). The respective functions of the Commission and the Federal Court take their colour from their repository. (He also referred to Minister for Home and Territories v Smith (22) (1924) 35 CLR 120 at 126-127).)


M J Higgins, for the third defendant John Bell, adopted the submissions of the Attorney-General for the Commonwealth.


G C Corr, in reply.

Cur adv vult

Counsel for the Appellant: G.C. Corr with A.F. Twomey

Solicitors for the Appellant: Aboriginal Legal Service Limited

Counsel for the Respondent: M.J. Higgins (3rd Defendant)

Solicitors for the Respondent: Higgins Solicitors (3rd Defendant)


Interveners: G. Griffith QC Solicitor-General for
the Commonwealth/S.J. Gageler
intervening for the Attorney-General
of the Commonwealth, instructed by
the Australian Government Solicitor

Orders

1. Answer the question reserved in the amended case stated as follows:

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 111 of the Racial Discrimination Act invalid?

Answer: Yes ss.25ZAA, 25ZAB, 25ZAC and 25ZC are invalid.

2. The first defendant pay the plaintiff's costs of the case stated.

Decisions

MASON CJ, BRENNAN AND TOOHEY JJ This matter came before the Court
by way of a case stated by Gaudron J which reserved to the Full Court
the determination of the following question:

"Are any and which parts of sections 25ZAA, 25ZAB and 25ZAC of the
Racial Discrimination Act 1975 (Cth) invalid on the ground of
inconsistency with Chapter III of the Constitution?"



2. As the argument developed, it became clear that an answer to the
question asked would not resolve all the matters in issue.
Accordingly the parties were directed to approach Gaudron J with a
view to securing an amendment to the case stated. This was done and
the Court is now asked to determine the following question:

"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 invalid?"

Both the Sex Discrimination and other Legislation Amendment Act and
the Law and Justice Legislation Amendment Act effected relevant
amendments to the Racial Discrimination Act 1975 (Cth) ("the Act").
The Act is to be read accordingly.



3. The plaintiff, Harry Brandy, is an officer of the Aboriginal and
Torres Strait Islander Commission ("ATSIC"), a body established on 5
March 1990 by the Aboriginal and Torres Strait Islander Commission Act
1989 (Cth). ATSIC took over the functions of the Department of
Aboriginal Affairs ("the Department") which then ceased to exist. The
third defendant, John Bell, is also an officer of ATSIC. He and the
plaintiff were officers of the Department until that body ceased to
exist.



4. On 13 March 1990 the third defendant lodged a complaint against

ATSIC with the first defendant, the Human Rights and Equal Opportunity
Commission ("the Commission"), pursuant to s.22 of the Act. The
complaint alleged verbal abuse and threatening behaviour on the part
of the plaintiff against the third defendant while both were officers
of the Department. There was a further complaint as to the inadequacy
of the response of ATSIC and its Chief Executive Officer. The
complaint alleged breaches of ss.9 and 15 of the Act.



The Human Rights and Equal Opportunity Commission
5. The Commission was established by the Human Rights and Equal
Opportunity Commission Act 1986 (Cth). Section 8(1) of that Act
identifies the constitution of the Commission as consisting of:

"(a) a President; and
(b) a Human Rights Commissioner; and
(c) the Race Discrimination Commissioner; and
(ca) the Aboriginal and Torres Strait Islander Social Justice
Commissioner; and
(d) the Sex Discrimination Commissioner;
(e) the Privacy Commissioner; and
(f) the Disability Discrimination Commissioner."

Section 8(4) requires that the Human Rights Commissioner be "a legally
qualified person appointed as a full-time member" (1 s.8(8) defines
"legally qualified person") but otherwise no particular qualifications
are required of those who constitute the Commission.



6. The Racial Discrimination Act deals with the appointment of the
Race Discrimination Commissioner ("the Commissioner") and provides
that the Commissioner holds office for such period, not exceeding
seven years, as is specified in the instrument of appointment, but is
eligible for re-appointment (2 s.30(1)) .



7. Part II of the Act is headed "Prohibition of Racial
Discrimination". Part II contains ss.9 and 15, breaches of which were
alleged in the third defendant's complaint. Section 9 and s.15 make
conduct of the kind described in either section unlawful. A complaint
in writing that a person has done an act that is unlawful by virtue of
a provision of Pt II may be lodged with the Commission (3 s.22) .
Where a complaint is so lodged or it appears to the Commission that a
person has done an act that is unlawful by virtue of a provision of Pt
II, the Commission shall notify the Commissioner accordingly (4 s.24).
The Commissioner is then required to inquire into the act unless,
for the reasons specified, the Commissioner decides not to commence or
continue the inquiry (5 s.24(1) and (2)) . In that event, the
Commissioner is obliged to give notice to the complainant (6 s.24(3)),
who may require the Commissioner to refer the complaint to the
Commission or to the President (7 s.24(4), (5), (5A)) .



8. Part III of the Act is headed "Inquiries and Civil Proceedings".
The Commission is obliged to hold an inquiry into each complaint
referred to it by the Commissioner or any matter referred to it by the
Minister for inquiry as a complaint under Pt III (8 s.25A) . The
powers of the Commission to hold an inquiry under the Act may, if the
President so directs, be exercised by a single member of the Commission
who is legally qualified, or by two or more members of the Commission
at least one of whom is legally qualified (9 s.25B(1)) . In that
event, the Commission's powers with respect to a final determination
are governed by s.25Z which reads in part:

"(1) After holding an inquiry, the Commission may:

(a) dismiss the complaint the subject of the inquiry; or

(b) find the complaint substantiated and make a determination,
which may include any one or more of the following:

(i) a declaration that the respondent has engaged in conduct
rendered unlawful by this 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 conduct of the respondent;

(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 would be inappropriate for any
further action to be taken in the matter.

(2) A determination of the Commission under subsection (1) is not
binding or conclusive between any of the parties to the
determination."



9. Where a determination has been made under s.25Z, the Commission
is required as soon as practicable after the determination is made to
"lodge the determination in a Registry of the Federal Court" and
thereupon the Registrar is required to register the determination (10
s.25ZAA(2) and (3)) . The Commission must, within seven days, give
written notice of the registration to the complainant and respondent
(11 s.25ZAA(4)) . It should be noted that s.25ZAA has no application
where the respondent is a Commonwealth agency or is the principal
executive of a Commonwealth agency (12 s.25ZAA(1)) . The Parliament
apparently assumed that in those cases the determination will be met,
so far as the Commonwealth is concerned, without the need for
registration. Nevertheless, Div.4 of Pt III of the Act - "Review and
enforcement of determinations involving Commonwealth agencies" -
contains provisions aimed at ensuring that a Commonwealth agency or the
principal executive of an agency complies with a determination under
s.25Z. The ultimate sanction for non-compliance is an application to
the Federal Court for an order directing the agency or principal
executive to comply with a determination (13 s.25ZI) .



Consequences of registration of a determination
10. Upon registration in the Federal Court, the determination, which
hitherto has not been binding or conclusive between the parties (14
s.25Z(2)) , has effect as if it were an order made by the Federal
Court (15 s.25ZAB(1)) . However, no action to enforce the
determination may be taken before the end of the "normal application
and review period" and a failure by a respondent, during that period,
to comply with a positive requirement of a determination is not a
contravention of the determination (16 s.25ZAB(3) and (4)) . The
expression "normal application and review period" is defined (17
s.25ZAB(11)) . The period is 28 days from registration of the
determination or, if the respondent seeks a review of the
determination, when proceedings on the review are completed or
otherwise terminated. The respondent to a determination may, within 28
days after the determination is registered, apply to the Federal Court
for such a review (18 s.25ZAB(5) and (6)) . The Court may extend the
time for applications "only in exceptional circumstances" (19
s.25ZAB(7)) . It is only the respondent who may seek a review. Thus,
if the Commission determined, pursuant to s.25Z(1)(b)(vii), "that it
would be inappropriate for any further action to be taken in the
matter", the complainant would not be entitled to invoke the review
procedure and that would be the end of the matter so far as the Act is
concerned.



11. The parties to a review are the applicant and the complainant to
the determination (20 s.25ZAC(2)) . The Court "may review all issues
of fact and law" (21 s.25ZAC(4)) . A party "cannot adduce new
evidence without the leave of the Court" (22 s.25ZAC(5)) . After
reviewing the determination, the Court "may make such orders as it
thinks fit (including a declaration of right)"; the orders may confirm
a determination that is registered under s.25ZAA (23 s.25ZAC(6)) .



The complaint
12. The complaint made by the third defendant against the plaintiff
alleged breaches of ss.9 and 15 of the Act. It is unnecessary to set
out these sections in full. Section 9(1) makes it unlawful for a
person to do any act involving a distinction, exclusion, restriction
or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of any human
right or fundamental freedom in any field of public life. Section 15
contains a number of prohibitions on employers or persons acting on
their behalf in respect of acts relating to the non-employment,
treatment and dismissal of a person by reason of his or her race,
colour, or national or ethnic origin. The third defendant gave notice
in accordance with s.24(4)(a) of the Act and accordingly the
Commissioner referred the complaint to the Commission.



13. The power of the Commission to hold an inquiry under the Act
into the third defendant's allegations was exercised by Mr Castan
Q.C., the second defendant. The second defendant was appointed
pursuant to s.24F of the Act which empowers the Minister to appoint a
person to participate, in accordance with the section, "in the
performance of the functions of the Commission". He conducted an
inquiry and, on 22 December 1993, made a determination pursuant to
s.25Z of the Act. The determination took effect as a determination of
the Commission. By that determination the second defendant found the
third defendant's complaint substantiated and declared that the
following acts or courses of conduct should be performed:

"(1) that the Plaintiff do apologise to the Third Defendant, the form of the apology being annexed to the determination;

(2) that the Plaintiff do pay the sum of $2 500 to the Third
Defendant by way of damages for the pain, humiliation, distress and
loss of personal dignity suffered by the Third Defendant;

(3) that ATSIC do take disciplinary action against the Plaintiff,
in relation to the conduct which he perpetrated against the Third
Defendant;

(4) that ATSIC do apologise to the Third Defendant in relation to
the handling of his complaint, the form of the apology being annexed
to the determination;

(5) that ATSIC do pay the sum of $10 000 to the Third Defendant by
way of damages for the pain, humiliation, distress and loss of
personal dignity suffered by the Third Defendant."



14. On 23 December 1993 the Commission lodged the determination in
the New South Wales Registry of the Federal Court and the
determination was registered that day. On 20 January 1994 the
plaintiff, having received notice of registration, applied to the
Federal Court, pursuant to s.25ZAB(5) of the Act, for a review of the
determination. That application has proceeded no further pending a
decision on the plaintiff's challenge to the validity of sections of
the Act.



The plaintiff's challenge to the Act
15. The plaintiff's challenge to particular provisions of the Act is
based upon the proposition that they provide for an exercise of
judicial power otherwise than in conformity with Ch.III of the
Commonwealth Constitution in that the power is exercised by the
Commission which is not a court established pursuant to s.71 and
constituted in accordance with s.72 of the Constitution. The
plaintiff further argues that the correctness of this proposition is
not affected by the provisions for review by the Federal Court.



16. To determine this argument it is first necessary to consider the
relevant steps in the operations of the Commission. In doing so, it
is also necessary to bear in mind that, in the words of Griffith CJ
in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (24 (1909) 8
CLR 330 at 357. See also Re Cram; Ex parte Newcastle Wallsend Coal Co.
Pty. Ltd. (1987) 163 CLR 140 at 148-149 and the authorities referred to
therein) :
"(t)he exercise of (judicial) power does not begin until some tribunal
which has power to give a binding and authoritative decision (whether
subject to appeal or not) is called upon to take action."



17. The exercise of power by a tribunal to enforce its own orders
has sometimes been seen as an essential element in the exercise of
judicial power. In Rola Co. (Australia) Pty. Ltd. v. The
Commonwealth (25 (1944) 69 CLR 185 at 199) , Latham CJ, with
reference to Griffith CJ's definition of judicial power in Huddart,
Parker, said:
"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 the definition quoted, all the attributes
of judicial power are plainly present. I refer to what I say more in
detail hereafter, that the Privy Council, in the Shell Case (26
(1931) AC 275) ... expressly held that a tribunal was not necessarily
a court because it gave decisions (even final decisions) between
contending parties which affected their rights."

In Rola Co. (27 (1944) 69 CLR at 200) , it was the absence of any
power in the Committee of Reference to enforce its own determination
that led Latham CJ (with whom McTiernan J agreed) to conclude that
the Committee did not exercise judicial power. And, in the Shell Case
(28 Shell Co. of Australia v. Federal Commissioner of Taxation (1931)
AC 275 at 297) , the Privy Council held that a tribunal is not
necessarily a court in the strict sense of exercising judicial power
because it gives a final decision; nor because two or more contending
parties appear before it between whom it has to decide; nor because it
gives decisions which affect the rights of subjects; nor because it is
a body to which a matter is referred by another body.



18. However, it has not been found possible to offer an exhaustive
definition of judicial power (29 Precision Data Holdings Ltd. v.
Wills (1991) 173 CLR 167 at 188-189) . So, in Reg. v. Davison, Dixon
CJ and McTiernan J observed (30 (1954) 90 CLR 353 at 368) :
"(T)he enforcement of a judgment or judicial decree by the court
itself cannot be a necessary attribute of a court exercising judicial
power. The power to award execution might not belong to a tribunal,
and yet its determinations might clearly amount to an exercise of the
judicial power. Indeed it may be said that an order of a court of
petty sessions for the payment of money is an example. For warrants
for the execution of such an order are granted by a justice of the
peace as an independent administrative act."

The fact that the Commission cannot enforce its own determinations is
a strong factor weighing against the characterization of its powers as
judicial; though it must be recognized that this is not an exclusive
test of the exercise of judicial power.



19. The plaintiff's challenge only impugned the registration and
enforcement procedure of the Act. Section 25Z, which empowers the
Commission to make determinations, was only put in issue to the extent
that it supported the procedure overall. Because s.25Z(2) provides
that a determination of the Commission is "not binding or conclusive
between any of the parties to the determination", the holding of an
inquiry and the making of a determination under the Act cannot of
itself be seen as an exercise of judicial power (31 See Aldridge v.
Booth (1988) 80 ALR 1 at 6) . In that regard, where the Commission
finds a complaint to have been substantiated, the Commission is
confined to making a declaration (which is not binding or conclusive)
qualified in terms of what the respondent "should" do rather than in
terms of what the respondent "shall" or "must" do.



20. At one point, the plaintiff placed some reliance on the
following passage from Re Ranger Uranium Mines Pty. Ltd.; Ex parte
Federated Miscellaneous Workers' Union of Australia (32 (1987) 163
CLR 656 at 666) in support of an argument that a determination by the
Commission may of itself constitute an exercise of judicial power:

"The power of inquiry and determination is a power which
properly takes its legal character from the purpose for which it is
undertaken. Thus inquiry into and determination of matters in issue
is a judicial function if its object is the ascertainment of legal
rights and obligations."

But this passage must be taken in context and, in particular, read
with what follows shortly thereafter:

"As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co.
Pty. Ltd. (33 (1987) 163 CLR at 149) , the formation of an opinion as
to legal rights and obligations does not involve the exercise of
judicial power, at least if it is 'a step in arriving at the ultimate
conclusions on which (is based) the making of an award intended to
regulate the future rights of the parties'. For, as was there made
clear, 'the formation of such an opinion does not bind the parties and
cannot operate as a binding declaration of rights'."

In the end, the plaintiff did not attack s.25Z except in so far as it
was part of the procedure for registration and enforcement.



21. Although many decision-making functions may take their character
as an exercise of judicial, executive or legislative power from their
legislative setting, the character of the decision-maker and the
nature of the decision-making process, some decision-making functions
are exclusive and inalienable exercises of judicial power (34 Reg. v.
Davison (1954) 90 CLR at 368-370 per Dixon CJ and McTiernan J) . As
Dixon CJ and McTiernan J observed in Reg. v. Davison (35 ibid. at
369) :
"The truth is that the ascertainment of existing rights by the
judicial determination of issues of fact or law falls exclusively
within judicial power so that the Parliament cannot confide the
function to any person or body but a court constituted under ss.71 and
72 of the Constitution".

In that statement, the expression "judicial determination" means an
authoritative determination by means of the judicial method, that is,
an enforceable decision reached by applying the relevant principles of
law to the facts as found.



22. Thus, it has always been accepted that the punishment of
criminal offences and the trial of actions for breach of contract and
for wrongs are inalienable exercises of judicial power (36 Federal
Commissioner of Taxation v. Munro (1926) 38 CLR 153 at 175 per Isaacs
J) . The validity of that proposition rests not only on history and
precedent but also on the principle that the process of the trial
results in a binding and authoritative judicial determination which
ascertains the rights of the parties (37 Reg. v. Davison (1954) 90
CLR at 368-370 per Dixon CJ and McTiernan J) . So, when A alleges
that he or she has suffered loss or damage as a result of B's unlawful
conduct and a court determines that B is to pay a sum of money to A by
way of compensation, there is an exercise of judicial power. The
determination involves an exercise of such power not simply because it
is made by a court but because the determination is made by reference
to the application of principles and standards "supposed already to
exist" (38 Prentis v. Atlantic Coast Line (1908) 211 US 210 at 226
per Holmes J) . And the determination is binding and authoritative in
the sense that there is what has been described as an immediately
enforceable liability of B to pay A the sum in question (39 See Rola
Co. (1944) 69 CLR at 199 per Latham C.J) . Consequently, even if the
determination in such a case were to be made by an administrative
tribunal and not by a court, the determination would constitute an
exercise of judicial power, although not one in conformity with Ch.III
of the Constitution.



23. In the present case, the determinations by the Commission for
the payment of damages by the appellant and ATSIC were made by
reference to the application of the pre-existing principles and
standards prescribed by the provisions of ss.9 and 15 of the Act.
Accordingly, the only distinction between the determination supposed
in the last sentence of the preceding paragraph and the determinations
by the Commission in the present case is that the Commission's
determinations only become binding on the parties and enforceable
after registration of the determinations in the Federal Court. Upon
registration they become binding on the parties and have effect as if
they were an order of the Federal Court. However, the determinations
cannot be enforced until the expiration of the normal application and
review period.



24. If the respondent to a determination does not apply for a review
within 28 days of the registration of the determination, then the
determination is enforceable at the expiration of that time unless
leave to apply is granted after that time by the Federal Court. And,
if the Commission finds the complaint substantiated and yet declares

under s.25Z(1)(b)(vii) that it would be inappropriate for any further
action to be taken in the matter, the determination is binding and
enforceable upon registration in the Federal Court because a
successful complainant is given no right to invoke the review
procedure.



25. Turning to the case before the Court, whatever might be the
enforceability of a declaration that the plaintiff "do apologise", a
declaration that the plaintiff "do pay the sum of $2 500" to the third
defendant, once registered, attracts the operation of s.53 of the
Federal Court of Australia Act 1976 (Cth). By that section, a person
in whose favour a judgment is given is entitled to the same remedies
for enforcement, by execution or otherwise, as are allowed by the laws
of the State or Territory applicable. In the present case, this means
New South Wales. Section 53 does not affect the operation of any
provision made by or under any other Act or the Rules of Court for the
execution and enforcement of judgments of the Court (40 s.53(2)) .



26. But s.25ZAB goes beyond providing the machinery for the
enforcement of a determination. It purports to give a registered
determination effect "as if it were an order made by the Federal
Court". A judicial order made by the Federal Court takes effect as an
exercise of Commonwealth judicial power, but a determination by the
Commission is neither made nor registered in the exercise of judicial
power. An exercise of executive power by the Commission and the
performance of an administrative function by the Registrar of the
Federal Court simply cannot create an order which takes effect as an
exercise of judicial power; conversely, an order which takes effect as
an exercise of judicial power cannot be made except after the making
of a judicial determination. Thus, s.25ZAB purports to prescribe what
the Constitution does not permit.



27. The Commonwealth submits, however, that the provisions relating
to review of a determination by the Federal Court operate in such a
way that a determination, even when registered, does not constitute an
exercise of judicial power by the Commission. This submission, which
was put at the forefront of the Commonwealth's argument, should be
considered in the context of the interlocking provisions relating to
inquiries and to review and enforcement of determinationsa (that is,
Divs 3 and 4 of Pt III of the Act).



Previous procedures under the Act
28. The system of review of a determination by the Federal Court was
introduced as part of the amendments made by the Sex Discrimination
and other Legislation Amendment Act. Some further changes were made by
the Law and Justice Legislation Amendment Act. However, before turning
to this system of review, it is useful to compare the relevant
provisions of the Act before the system was introduced. When first
enacted, the Act contained ss.9 and 15, though not entirely in their
present form. There was a Commissioner for Community Relations whose
functions were, inter alia, inquiring into alleged infringements of Pt
II and endeavouring to effect a settlement of the matters alleged to
constitute those infringements (41 s.20(a)) . However, a person
aggrieved by an act considered to have been unlawful by reason of Pt II
was entitled to "initiate a proceeding in relation to the act by way of
civil action in a court of competent jurisdiction" (42 s.24(1)) and
the court was empowered to grant various remedies, including injunctive
relief (of a negative or mandatory nature), cancellation or variation
of a contract and damages (43 s.25) . Clearly, in those
circumstances, the function of the Commissioner was administrative
only.



29. The Human Rights and Equal Opportunity Commission (Transitional
Provisions and Consequential Amendments) Act 1986 (Cth) repealed Pt
III of the Act - "Inquiries and Civil Proceedings" - and substituted a
new part under the same heading. A Race Discrimination Commissioner
was given the functions previously exercised by the Commissioner for
Community Relations. Provision was made for inquiries by the
Commission and the making of determinations. The Commission or a
complainant was empowered to institute a proceeding in the Federal
Court to enforce a determination. Where the Court was satisfied that
the respondent had engaged in conduct or committed an act that was
unlawful under the Act, the Court was authorized to make such orders
(including a declaration of right) as it thought fit. Thus, an
independent exercise of judicial power by the Federal Court was
required to give effect to a determination.



Review by the Federal Court
30. The Commonwealth, as intervener, argued that, although styled as
a review, the procedure set out in s.25ZAC "is obviously an exercise
of original jurisdiction" because the Federal Court may review all
issues of fact and law and may make such orders as it thinks fit. The
argument continued: registration of a determination under s.25ZAA is
the first step in the judicial process established by ss.25ZAB and
25ZAC. It is like the filing of an originating process.



31. In considering the nature of the "review" contemplated by
s.25ZAC, it is relevant to note that the expression "review" is
commonly used in the context of judicial control of administrative
action and in the context of comprehensive administrative review by an
administrative tribunal of administrative decisions (44 Re Brindle;
Ex parte F.B. and F.A. McMahon Pty. Ltd. (1992) 108 ALR 470 at 473 per
Hill J) . But what emerges from the judicial decisions and, for that
matter, from statutes is that "review" has no settled pre-determined
meaning; it takes its meaning from the context in which it appears.



32. It might be said that the use of the word "review" is apt to
signify that the decision under review is administrative in character
rather than one made in the exercise of the judicial power of the
Commonwealth (45 Re Greenhill; Ex parte Pook (1988) 83 ALR 295 at 296
per Gummow J) , though, in the context of the review of a decision of
the Registrar of Trade Marks by the High Court, the word "appeal" was
used in s.45 of the Trade Marks Act 1905 (Cth) (46 Farbenfabriken
Bayer Aktiengesellschaft v. Bayer Pharma Pty. Ltd. (1959) 101 CLR 652
at 656, 657 per Dixon C.J) . And it is possible that those who drafted
s.25ZAC considered that the Commission's functions did not involve an
exercise of judicial power.



33. The Commonwealth contends that the review function entrusted to
the Federal Court is an exercise of federal judicial power in the form
of a grant of original jurisdiction (47 ibid. at 657 per Dixon C.J) .
It is in that context that the Commonwealth argues that the provisions
of the Act which give binding effect to a determination of the
Commission and make it enforceable merely endow the determination with
those attributes as incidental to the exercise of judicial power by the
Federal Court. That argument is without substance for the simple
reason that the determination is registered and becomes enforceable in
circumstances where the review procedure is not invoked.



34. An endeavour was made to support the argument by reference to a
supposed analogy with a default judgment. But default judgments are
entered in the exercise of judicial power by a court, pursuant to its
rules, and may be set aside in accordance with those rules.
Non-compliance with those rules is the occasion for the entry of a
default judgment. So any comparison with a default judgment is at
best tenuous.



35. In exercising its jurisdiction to review a determination by the
Commission, the starting point is the existence of a determination and
the evidence given to the Commission in the inquiry which led to the
making of the determination. The Federal Court must start with this
material; indeed, unless the Court gives leave to adduce new evidence,
that will be the only material before the Court. It is true that the
Court is empowered to review all issues of fact and law. That, we
think, is a facultative provision; whether the Court does review all
issues of fact and law will be a matter for it in the light of the
arguments put to it. Whether it is incumbent on a respondent to give
grounds or the like for a review is something on which the Act is
silent. This may well be deliberate, in order to avoid argument that
the review is by way of appeal. At the same time, the Court does have
the determination and the evidence before the Commission and it is
clear that the Court must have regard to that material.



36. This is in marked contrast to O.36A r.7(4) of the Family Law
Rules which was considered in Harris v. Caladine (48 (1991) 172 CLR
84) . The sub-rule read:

"A court reviewing an exercise of power by a Judicial Registrar or a
Registrar shall proceed by way of a hearing de novo but may have
regard to the proceedings, including the evidence given and any
affidavit filed, before the Judicial Registrar or Registrar, as the
case requires."

Harris v. Caladine concerned a delegation of judicial power by a court
constituted in accordance with Ch.III of the Constitution. By reason
of the nature of the review provided by the Family Law Rules and other
aspects of the Family Law Act 1975 (Cth) and the Rules, the delegation
was held not to infringe Ch.III. But the provisions of the Act with
which the Court is presently concerned are so different as to preclude
the decision from being of direct relevance.



37. In assessing the nature of the review procedure in the Act,
s.25ZAC(5) is of importance. It reads:

"A party cannot adduce new evidence without the leave of the
Court."

The expression "new evidence" is, we think, unusual. Expressions such
as fresh evidence and further evidence have well-understood meanings.
But not so "new evidence". Does it mean evidence about matters on
which no evidence was led before the Commission and which is therefore
new in that sense? Or does it mean that the parties may give evidence
confined to what was said before the Commission? The latter seems
unlikely since it would be merely repetitive. Furthermore, it will
preclude cross-examination (assuming cross-examination to be
available), aimed at bringing out facts which were not before the
Commission.



38. Again, by way of contrast, reference may be made to Aldridge v.
Booth (49 (1988) 80 ALR 1) where Spender J considered the role of
the Federal Court in the Sex Discrimination Act 1984 (Cth) as it stood
at the relevant time. Proceedings to enforce a determination of the
Commission could be brought in the Federal Court. The Court was
required to be "satisfied" that the respondent had engaged in conduct
or committed an act that was unlawful under the Act. In that context,
Spender J said (50 ibid. at 7-8) :
"How matters of fact are established to the satisfaction of the court
will depend upon the nature of the case but where, as here, the
dispute requires an assessment of the credibility of the parties and
their witnesses, it seems to me impossible to avoid the conclusion that
those issues must be determined on the basis of oral evidence."

But that statutory context is quite different from the one with which
we are concerned. The Act says nothing as to the satisfaction of the
Federal Court, simply that the Court may review all issues of fact and
law and make such orders as it thinks fit.



39. The review to which ss.25ZAB and 25ZAC refer is not a hearing de
novo. Such a hearing requires that "the informant or complainant
starts again and has to make out his case and call his witnesses" (51
Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.
(1976) 135 CLR 616 at 620; see also Harris v. Caladine (1991) 172 CLR
at 124) .



40. Not only is there in these sections an absence of language
indicating a fresh hearing, the legislative history points in a
different direction. In Maynard v. Neilson (52 (1988) EOC 92-226) ,
Wilcox J referred to difficulties under the existing system of
enforcement under the Act. His Honour spoke of the considerable costs
of duplicating the hearing and of the danger that, in the context of a
non-binding determination, a party might fail to put forward all
relevant evidence. He also said that the standing of the Commission
was not enhanced by a procedure which enabled the parties to disregard
its determinations and to resist enforcement by the presentation of
evidence withheld from the Commission.



41. In the course of introducing the amendments to the Act through
the Sex Discrimination and other Legislation Amendment Act, the Prime
Minister made express reference to the remarks of Wilcox J to which
we have just referred (53 Commonwealth, House of Representatives,
Parliamentary Debates (Hansard), 3 November 1992 at 2397) . It is
clear that the intention of the Parliament was to avoid these
criticisms. The Parliament did so by introducing a scheme whereby the
Federal Court would review, in the sense of re-examine, a determination
in light of the evidence adduced before the Commission. In light of
that evidence and any new evidence the Court permits to be led, the
Court may make such orders as it thinks fit. In that way a duplicate
hearing is avoided and a party who chooses not to lead all relevant
evidence before the Commission is at risk that no further evidence will
be allowed.



42. The Court may review issues of fact, though, ordinarily, one
would expect its attention to focus more on issues of law,
particularly if it has not allowed new evidence. And one would expect
that, in reviewing issues of fact, and of law, the Court will inquire
why the determination should not stand. After all, if nothing is
offered by the respondent to suggest that the determination is in
error, why should it not stand?



43. The Federal Court is expressly empowered to confirm a
determination though that express power hardly seems necessary given
the wide powers the Court otherwise has. The Court is not expressly
empowered to set aside a determination but such a power must be
implied because, unless the Court does so, the determination stands as
an order of the Court.



Conclusion
44. It follows from what has been said in these reasons that the
Act, in providing for registration of a determination of the Commission
and its enforcement as if it were an order of the Federal Court, purports
to provide for an exercise of judicial power by the Commission and
that the jurisdiction conferred on the Federal Court to review a
determination of the Commission does not provide a sufficient answer
to this conclusion.



45. The consequence is that so much of the Act as provides for
registration and enforcement of a determination is invalid. This must
result in the invalidation of the review procedure which is dependent
on the existence of a registered determination. It follows that
ss.25ZAB and 25ZAC are invalid. Section 25ZC must also be declared
invalid because it attaches to a procedure which, in our view, is
itself invalid.


DEANE, DAWSON, GAUDRON AND McHUGH JJ Under Pt II of the Racial
Discrimination Act 1975 (Cth) ("the Act") various acts of racial
discrimination are made unlawful (54 ss. 9, 11, 12, 13, 14, 15, 16 and
17) . A complaint may be lodged with the Human Rights and Equal
Opportunity Commission ("the Commission") that a person has done an act
that is unlawful by virtue of a provision of Pt II (55 s.22) .
Procedures are laid down for the settlement or summary disposal of a
matter arising out of a complaint (56 See Div.2, Pt III of the Act) ,
but failing that, the Commission is required to hold an inquiry and
dispose of it. Under s.25Z(1) of the Act the Commission may determine
the matter by making various declarations, including a declaration that
the respondent has engaged in conduct rendered unlawful by the Act, a
declaration that the respondent should perform any reasonable act or
course of conduct to redress any loss or damage suffered by the
complainant and 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 conduct of the respondent. Under s.25Z(2) a
determination under sub-s.(1) is not binding or conclusive between any
of the parties to the determination.



2. As soon as practicable after a determination is made, the
Commission must lodge it in a Registry of the Federal Court and upon
lodgment the Registrar must register the determination (57 s.25ZAA(2)
and (3)) . There is an exception where the respondent is a
Commonwealth agency or the principal executive of a Commonwealth agency
(58 s.25ZAA(1)) . Upon registration of a determination, it has effect
as if it were an order made by the Federal Court, but the respondent
may apply to the Federal Court for a review of the determination (59
s.25ZAB(1) and (5)) . No action may be taken to enforce the
determination before the expiration of the time for making an
application for review, which, in the case of a determination made
before 18 January 1994, is a period of 28 days from the registration of
the determination or, if a review is instituted within that time, a
period ending upon the completion of the review (60 s.25ZAB(3), (5),
(6) and (7). And see s.18(2) of the Law and Justice Legislation
Amendment Act 1993 (Cth)) .



3. Under s.25ZAC the Court may, in reviewing the determination,
review all issues of fact and law and make such orders as it thinks
fit, including a declaration of right. However, a party cannot adduce
"new evidence" without the leave of the Court.



4. The third defendant, John Bell, and the plaintiff, Harry Brandy,
were employed as officers of the Department of Aboriginal Affairs and
the Aboriginal and Torres Strait Islander Commission ("ATSIC"). The
Department of Aboriginal Affairs was superseded by ATSIC in 1990. Mr
Bell lodged a complaint with the Commission that Mr Brandy and their
employer, ATSIC, had done acts which were unlawful under ss.9 and 15
of the Act. The second defendant, Mr Castan Q.C., who constituted the
Commission under ss.24F and 25B of the Act for the purpose, held an
inquiry and made a determination in which he found the complaint
substantiated. He declared that the following acts or course of
conduct should be performed:

"(1) that the Plaintiff do apologise to the Third Defendant, the form of the apology being annexed to the determination;

(2) that the Plaintiff do pay the sum of $2 500 to the Third
Defendant by way of damages for the pain, humiliation, distress and
loss of personal dignity suffered by the Third Defendant;

(3) that ATSIC do take disciplinary action against the Plaintiff,
in relation to the conduct which he perpetrated against the Third
Defendant;

(4) that ATSIC do apologise to the Third Defendant in relation to
the handling of his complaint, the form of the apology being annexed
to the determination;

(5) that ATSIC do pay the sum of $10 000 to the Third Defendant by
way of damages for the pain, humiliation, distress and loss of
personal dignity suffered by the Third Defendant."



5. On 23 December 1993, the Commission lodged the determination in
a Registry of the Federal Court and it was registered on the same day.
On 20 January 1994, the plaintiff applied to the Federal Court for a
review of the Commission's determination. He also commenced
proceedings in this Court claiming that those sections of the Act
which provide for the registration and review of a determination are
invalid by reason of the requirements of Ch.III of the Constitution.



6. Pursuant to s.18 of the Judiciary Act 1903 (Cth), Gaudron J
stated a case and reserved a question for the consideration of the
Full Court which, in its amended form, is as follows:

"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 invalid?"



7. Part III of the Racial Discrimination Act is that part which
provides for inquiries into complaints, their determination by the
Commission and their registration in the Federal Court. Under
legislation which was introduced in 1986 (61 Human Rights and Equal
Opportunity Commission (Transitional Provisions and Consequential
Amendments) Act 1986 (Cth)) , the determination of the Commission was

not binding or conclusive between any of the parties to the
determination (62 s.25Z(2)) , but the Commission or complainant might
institute a proceeding in the Federal Court to enforce a determination
(63 s.25ZA(1)) . Under that legislation, where the Federal Court was
satisfied that the respondent had engaged in conduct or committed an
act which was unlawful under the Racial Discrimination Act, the Federal
Court might make such orders as it thought fit (64 s.25ZA(2)) . The
current provisions of the Act providing for the registration of a
determination of the Commission by the Federal Court were the result of
amendment of the Act by the Sex Discrimination and other Legislation
Amendment Act 1992 and the Law and Justice Legislation Amendment Act
1993.



8. The Commission, notwithstanding that on this occasion it
comprised a legally qualified person, is not constituted as a court in
accordance with the requirements of Ch.III of the Constitution. It
cannot, therefore, exercise the judicial power of the Commonwealth
which, under s.71, may only be vested in the High Court or such other
courts as the Parliament creates or invests with federal
jurisdiction (65 See Waterside Workers' Federation of Australia v.
J.W. Alexander Ltd. (1918) 25 CLR 434) . Those courts must be
constituted as provided by s.72. The plaintiff contends that the
amendments to the Act which require the registration of the
Commission's determinations in the Federal Court, resulting in their
enforceability under s.53 of the Federal Court of Australia Act 1976
(Cth), are invalid because they purport to invest the Commission with
judicial power.



9. Difficulty arises in attempting to formulate a comprehensive
definition of judicial power not so much because it consists of a
number of factors as because the combination is not always the same.
It is hard to point to any essential or constant characteristic.
Moreover, there are functions which, when performed by a court,
constitute the exercise of judicial power but, when performed by some
other body, do not (66 See Reg. v. Davison (1954) 90 CLR 353 at 368) .
These difficulties were recognized by the Court in Precision Data
Holdings Ltd. v. Wills (67 (1991) 173 CLR 167 at 188-189) :
"The acknowledged difficulty, if not impossibility, of framing a
definition of judicial power that is at once exclusive and exhaustive
arises from the circumstance that many positive features which are
essential to the exercise of the power are not by themselves
conclusive of it. Thus, although the finding of facts and the making
of value judgments, even the formation of an opinion as to the legal
rights and obligations of parties, are common ingredients in the
exercise of judicial power, they may also be elements in the exercise
of administrative and legislative power."

One is tempted to say that, in the end, judicial power is the power
exercised by courts and can only be defined by reference to what
courts do and the way in which they do it, rather than by recourse to
any other classification of functions. But that would be to place
reliance upon the elements of history and policy which, whilst they
are legitimate considerations, cannot be conclusive.



10. It is traditional to start with the definition advanced by
Griffith CJ in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead
(68 (1909) 8 CLR 330 at 357) in which he spoke of the concept of judicial power in terms of the
binding and authoritative decision of controversies between subjects
or between subjects and the Crown made by a tribunal which is called
upon to take action. However, it is not every binding and
authoritative decision made in the determination of a dispute which
constitutes the exercise of judicial power. A legislative or
administrative decision may answer that description. Another important
element which distinguishes a judicial decision is that it determines
existing rights and duties and does so according to law. That is to
say, it does so by the application of a pre-existing standard rather
than by the formulation of policy or the exercise of an administrative
discretion. Thus Kitto J in Reg. v. Gallagher; Ex parte Aberdare
Collieries (69 (1963) 37 ALJR 40 at 43) said that judicial power
consists of the "giving of decisions in the nature of adjudications
upon disputes as to rights or obligations arising from the operation of
the law upon past events or conduct". But again, as was pointed out in
Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (70 (1987) 163
CLR 140 at 149) , the exercise of non-judicial functions, for example,
arbitral powers, may also involve the determination of existing rights
and obligations if only as the basis for prescribing future rights and
obligations.



11. However, there is one aspect of judicial power which may serve
to characterize a function as judicial when it is otherwise equivocal.
That is the enforceability of decisions given in the exercise of
judicial power. In Waterside Workers' Federation of Australia v. J.W.
Alexander Ltd. (71 (1918) 25 CLR at 451) Barton J said:

"It is important to observe that the judicial power includes
with the decision and the pronouncement of judgment the power to carry
that judgment into effect between the contending parties. Whether the
power of enforcement is essential to be conferred or not, when it is
conferred as part of the whole the judicial power is undeniably
complete."

And in Federal Commissioner of Taxation v. Munro (72 (1926) 38 CLR 153
at 176) Isaacs J pointed out that the concept of judicial power
includes enforcement: the capacity to give a decision enforceable by
execution. It was this characteristic of judicial power which was
emphasized by Latham CJ in Rola Co. (Australia) Pty. Ltd. v. The
Commonwealth (73 (1944) 69 CLR 185 at 198-199) . He pointed to the
fact that in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead
Griffith CJ referred not only to the giving of a binding and
authoritative decision as being indicative of the exercise of judicial
power, but also spoke of such a decision being given by a tribunal
"called upon to take action". Thus, Latham CJ pointed out, where a
tribunal is able to give a binding and authoritative decision and is
able to take action so as to enforce that decision, "all the attributes
of judicial power are plainly present" (74 ibid. at 199) .



12. However, notwithstanding the reference by Griffith CJ to a
tribunal "called upon to take action", it is not essential to the
exercise of judicial power that the tribunal should be called upon to
execute its own decision. As Dixon CJ and McTiernan J observed in
Reg. v. Davison (75 (1954) 90 CLR at 368) , an order of a court of
petty sessions for the payment of money is made in the exercise of
judicial power, but the execution of such an order is by means of a
warrant granted by a justice of the peace as an independent
administrative act (76 cf. Local Courts (Civil Claims) Act 1970
(N.S.W.), s.58) . Turning to the present case, it is apparent that
the Commission's functions point in many respects to the exercise of
judicial power. It decides controversies between parties and does so
by the determination of rights and duties based upon existing facts
and the law as set out in Pt II of the Racial Discrimination Act.
Indeed, the relevant function of the Commission is essentially to
determine whether the provisions of ss.9 and 15, which prohibit certain
kinds of racial discrimination, have been contravened. That is
clearly indicative of the exercise of judicial power, for, as Starke J
said in Victorian Chamber of Manufactures v. The Commonwealth
(Industrial Lighting Regulations) (77 (1943) 67 CLR 413 at 422) :

"The Constitution remits to the judicial power of the Commonwealth the
jurisdiction and authority to determine whether a subject has or has
not contravened a law or regulation of the Commonwealth."

Moreover, the remedies which the Commission may award (78 See s.25Z)
include damages as well as declaratory or injunctive relief and,
according to whether they may be viewed as punitive or otherwise, make
its functions closely analogous to those of a court in deciding
criminal or civil cases. And as Isaacs J remarked in Federal
Commissioner of Taxation v. Munro (79 (1926) 38 CLR at 175) , the
punishment of crime or the trial of actions for breach of contract or
for civil wrongs is "appropriate exclusively to judicial action".



13. However, if it were not for the provisions providing for the
registration and enforcement of the Commission's determinations, it
would be plain that the Commission does not exercise judicial power.
That is because, under s.25Z(2), its determination would not be
binding or conclusive between any of the parties and would be
unenforceable. That situation is, we think, reversed by the
registration provisions.



14. Under s.25ZAA registration of a determination is compulsory and
under s.25ZAB the automatic effect of registration is, subject to
review, to make the determination binding upon the parties and
enforceable as an order of the Federal Court. Nothing that the
Federal Court does gives a determination the effect of an order. That
is done by the legislation operating upon registration. The result is
that a determination of the Commission is enforceable by execution
under s.53 of the Federal Court Act. It is the determination of the
Commission which is enforceable and it is not significant that the
mechanism for enforcement is provided by the Federal Court. The
situation stands in contrast to the situation which was superseded by
the 1992 amendments to the Racial Discrimination Act. Under the
earlier provisions, the Federal Court had to be satisfied of a breach
of the Act before making an order for itself.



15. The Commonwealth, intervening, submitted that by virtue of the
review procedure provided by s.25ZAC the registration of a
determination is the commencement of proceedings in the Federal Court
so that if a determination becomes enforceable it is by reason of the
adjudication of the Federal Court, that being a court constituted in
accordance with Ch.III of the Constitution and capable of exercising
judicial power.



16. The plain answer to that submission is that a registered
determination may not be subjected to review but has effect as an
order of the court from the moment of registration. True it is that
it cannot be enforced pending the institution or completion of a
review, but it remains an order of the Court. The right to review is
exercisable only by a respondent to a determination. If he or she
fails to apply for review within 28 days, the determination becomes
enforceable forthwith. The Commonwealth sought to counter this answer
by submitting that the procedure is analogous to the entry of judgment
by default, but the analogy cannot be sustained.



17. A judgment entered by default is nonetheless a judgment of the
court whose rules provide for such a course (80 See, e.g., Federal
Court Rules, O.11, r.23) . The circumstances in which judgment may be
entered are prescribed by the court itself and the process is one which
is commenced and brought to a conclusion in accordance with those
rules. The circumstances in which a determination may be made by the
Commission are prescribed by the Act and, except upon a review, the
Federal Court is precluded from any consideration of those
circumstances either upon the registration of a determination or in
relation to its enforcement. The determination remains the
determination of the Commission and in no sense becomes the
determination of the Federal Court.



18. If the registration of a determination of the Commission cannot
be seen as the commencement of proceedings in the original
jurisdiction of the Federal Court, then the existence of the review
procedure does not bear upon the question whether the determination was
made in the exercise of judicial power. That is obvious in the case of
a determination for which no review is sought, but it is equally the
case where a review is sought. The existence or exercise of a right
of appeal from a decision made in the exercise of judicial power does
not convert that decision into one of an administrative kind (81 See
Harris v. Caladine (1991) 172 CLR 84 at 111 per Brennan J, 141 per
Toohey J) .



19. The way in which the Commonwealth sought to use the review
procedure was to say that its comprehensive nature was such as to
indicate that the jurisdiction of the Federal Court was original and
not by way of appeal. Because a determination might be registered and
enforced without recourse to review, that argument cannot succeed in
any event, but the review procedure, despite its name, does not
indicate a proceeding in the original jurisdiction of the Federal
Court. The Court "may" review all issues of law and fact but is not
required to do so. It would be unlikely to do so in the absence of
some specified ground for disturbing the Commission's determination.
Moreover, upon a review a party cannot adduce new evidence without the
leave of the Court. Whether "new evidence" is the same as fresh
evidence is not clear, but its exclusion points to a proceeding by way
of appeal - an appeal by rehearing and not de novo (82 ibid. at
124-126.) - rather than a proceeding in the original jurisdiction of
the Court. Thus the review procedure provided does not support the
suggestion that the registration of a determination of the Commission
is the commencement of a fresh proceeding in the Federal Court.



20. For these reasons, ss.25ZAA, 25ZAB and 25ZAC, which combine to
make a determination of the Commission binding, authoritative and
enforceable, invalidly purport to invest judicial power in the
Commission. Section 25ZC, which provides for financial or legal
assistance in review proceedings, is dependent for its application
upon s.25ZAC and must also fail. We would answer the question asked:
yes, ss.25ZAA, 25ZAB, 25ZAC and 25ZC.