Brandy v Human Rights and Equal Opportunity Commission

[1994] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Registry         No C3 of 1994

B e t w e e n -

HARRY BRANDY

Plaintiff

and

HUMAN RIGHTS AND EQUAL
  OPPORTUNITY COMMISSION
  & ORS

Defendants

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 OCTOBER 1994, AT 9.16 AM

Copyright in the High Court of Australia

MR G.C. CORR:   I appear for Mr Brandy, Your Honour.   (instructed by Aboriginal Legal Service Limited)

MR M.J. HIGGINS:   I appear for the third respondent, Mr Bell, Your Honour.  (instructed by Higgins)

MR S.J. GAGELER:   If Your Honour pleases, I appear for the Attorney-General of the Commonwealth, intervening.  (instructed by the Australian Government Solicitor)

MR CORR:   Your Honour, we have been unable to agree as to what the case stated should be in this matter.  There is disagreement as to what the intention of the Chief Justice was in comments that he made towards the end of the hearing the other day.  I am not certain if Your Honour has a copy of the transcript.

HER HONOUR:   I do, in fact, yes.

MR CORR:   It is on the last page there.

HER HONOUR:   You are worried about the reference to the 1986 amendments, when the only amendments that you know of are the 1992 amendments?

MR CORR:   No, I know very well that there are 1986 amendments.  The view that I have taken is that the Chief Justice was of the view that other provisions of the Racial Discrimination Act, other than those referred to in the original case stated might, in fact, be invalid and that there should be some argument as to whether or not those particular sections were invalid.

HER HONOUR:   I do not know that the Chief Justice had in mind that you could put some further argument, but that the argument as put might lead to the conclusion that some others were invalid.

MR CORR:   Yes.  With discussion with my friend I realise that if in fact that is the case and there does need to be an expansion to cover those, the Commonwealth considers that it would be appropriate there should in fact be further argument put to the Court since that is something of an expansion on the case which was presented to the Court the other day.

HER HONOUR:   Your argument, as I recollect it, however, on one analysis would suggest that the investigation procedures were invalid.

MR CORR:   Yes, and I would in fact support that.

HER HONOUR:   The argument has been put; it is only really to accommodate the stated case, is it not, to the argument that the parties put on the last occasion?

MR GAGELER:   Well, Your Honour, it was not put by us; we were responding to a very specific argument, we thought, dealing with sections 25ZAA to 25ZAAC.  If I can take Your Honour to various references in the transcript that show that that  - - -

HER HONOUR:   Yes, I know that that is the case as stated, but the difficulty was with Mr Corr’s argument that on one view - and he did not back away from it when it was put to him - it might be that the investigation procedures were invalid.

MR GAGELER:   Would Your Honour hear me on that now or ‑ - -

HER HONOUR:   Yes, but I mean, the argument was put, was it not?

MR GAGELER:   Your Honour, various things were mentioned during the course of Mr Corr’s argument and Your Honour has the transcript.  If I can take you first to page 7 at line 37, where the Chief Justice asks:

You are not attacking the validity of section 25Z, are you?

And the answer:

No, though I think that is arguable possibly - - -

HER HONOUR:   And then he moved away from it.

MR GAGELER:   Well, Your Honour, the last line on that page:

It forms no part of your argument, does it?

And then:

No, it does not, Your Honour.

Now we took that at face value - - -

HER HONOUR:   But Mr Corr moved away from that position; there is no doubt that he moved away from that position.

MR GAGELER:   Well, Your Honour, we had a doubt about that.  It did not appear to us that in the course of Mr Corr’s answers to questions ‑ and that is how the matter arose; it was not in the course of his developed argument.  For example, when he got to page 17 of the transcript, from line 25 following, he is pressed by Justice Toohey as to whether or not his argument can stand without attacking the validity of section 25Z as well.  And the answer, Your Honour, is by no means clear.  There was a clear answer to the Chief Justice’s question, “No, we are not attacking it”.  The answer at this stage is, “Well, there’s an argument - there might be a very good argument - that section 25Z is invalid as well”.

Now, we have no difficulty with Mr Corr framing his case and arguing the case however he chooses.  The difficulty is that the case as pleaded originally in the statement of claim attacked only the registration provisions.  The case as stated dealt only with the registration provisions; the cases notified under section 78B - - -

HER HONOUR:   Exactly, but we are here to amend the stated case because the stated case did not marry up with the argument.

MR GAGELER:   Did not marry up with the argument as presented by the plaintiff on one version.

HER HONOUR:   Yes.

MR GAGELER:   Your Honour, we did not respond to what may have been considered to be the widest version of the plaintiff’s argument.  If it is to be amended - - -

HER HONOUR:   That may be your bad luck.  You were in Court, you heard the argument, you were represented by the Solicitor-General.  He was not denied any opportunity to deal with the matter or to clarify it, or any opportunity to clarify it.  We have all been counsel at the bar table.  The reason why we have counsel is to cover the case and all its aspects.

MR GAGELER:   May I say this in response to that, Your Honour:  the first point is that from the first answer given by Mr Corr at the beginning of his argument in answer to a very clear question from the Chief Justice, we understood the case to be put on a particular basis.

HER HONOUR:   Why would you maintain that understanding when at the end of the argument the Chief Justice says, “Well, you might have to consider amending the stated case.”

MR GAGELER:   There are several interpretations of what His Honour may have meant there.  During the course of his argument, and particularly at page 53 of the transcript, the Solicitor-General presented a reading down argument, that is if the 1992 amendments are invalid it would be necessary to go back to the 1986 Act.  Then he was asked a little further on by the Chief Justice at page - - -

HER HONOUR:   Whereabouts was that?

MR GAGELER:   That is at page 53.

HER HONOUR:   Is that the argument that relates - that is sort of intended to be encompassed by question 2 of your proposed amendments?

MR GAGELER:   Yes.

HER HONOUR:   And that is in essence that the whole of the relevant amendment that I take it is - - -

MR GAGELER:   It is contained in the schedule to the 1992 Act.  I am not sure what version Your Honour has.  If it is the bound volume at page 3824.  It is in the schedule to the Act.  It is a bit hard to pick up.  Would it be convenient if I hand up my own photocopy?

HER HONOUR:   What you are suggesting is that the schedule, so much of the schedule as appears after, and includes the words “Section 25ZA” down to what is invalid?

MR GAGELER:   Down to the reference, to the end of section 25ZAC.

HER HONOUR:   Would it be down till you come to the Sex Discrimination Act (1984) - - -

MR GAGELER:   Yes.

HER HONOUR:   Is invalid?

MR GAGELER:   The difficulty - I have just handed Your Honour my own copy.  But to the end of section 25ZAC - - -

HER HONOUR:   I think that was not a matter that was fully explored in argument, was it?

MR GAGELER:   Your Honour, it was put very clearly by the Solicitor-General at page 53.  Precisely what provisions, apart from 25ZAA to 25ZAC may stand or fall  was ‑ ‑ ‑

HER HONOUR:   Yes, the rest was not debated.

MR GAGELER:   Was not debated, but ‑ ‑ ‑

HER HONOUR:   You have got real difficulty severing out parts of an amending legislation for validity, have you not?

MR GAGELER:   No, Your Honour, the point is simply this:  25ZAA to 25ZAC were inserted by an amending Act which ‑ ‑ ‑

HER HONOUR:   Yes, I follow that, but what you have to say is, do you not, that the opening words “repeal the section substitute” are invalid, and then the question arises whether you can, if you take that approach, sever off parts, including the parts which require the Commonwealth agencies not to challenge the determinations?

MR GAGELER:   Your Honour, Mr Corr has been kind enough to hand me his copy of the document; no it is only from ‑ Your Honour will see the reference section 25ZA in bold letters - it is simply from there which says “repeal the section and substitute” to the next amendment which is paragraph 25ZC(1)(a) and (b).  So, there is no difficulty about severing the amending Act. It is one package, it is taking out the old section 25ZA and putting in the new registration provisions.  So, what would go ‑ ‑ ‑

HER HONOUR:   Yes, but what has not been argued is whether you can do that and leave Division 4 in place.

MR GAGELER:   Your Honour, what was attacked were the three sections.   Now, we responded by saying if those three sections were invalid, we go back ‑ ‑ ‑

HER HONOUR:   But, my point, Mr Gageler, is simply this:  by the time the Chief Justice had made his remarks the argument had extended beyond that.

MR GAGELER:   Your Honour, the argument had been focused by the Chief Justice in his initial question.  The argument that was dealt with by the Solicitor‑General was the argument that was presented by the case stated.

Mr Corr, in answer to some questions, and particularly on one view of what he said in answer to the question by Justice Toohey, said that he could have extended his argument beyond the three sections that were in issue.  We cannot say that he cannot present an argument that is of that width.  The only thing we say is, if he is to do so, there are certain procedures which we would wish to see followed.  There would be an amendment not only to the case stated, but to the statement of claim; an amendment to the case stated; further section 78B notices; and we would wish to have clearly identified for us precisely what sections of the Act he says are invalid for what reasons, and we would wish to have an opportunity to respond.  If that is not by way of further oral argument, Your Honour, we would do so by written submission.  But the case as originally presented and as framed by Your Honour on the case stated was particularly focused, and we only dealt with a very narrow argument.

Your Honour, as a matter of policy an attack on the registration provisions, which is what we thought we were responding to, has consequences for a very small number of Acts of Parliament.  An attack on section 25Z or some wider attack ‑ and my friend’s version of the amended case stated does not identify what sections of the Act are now called into question ‑ on the administrative processes may well draw in questions of various forms of AAT jurisdiction, for example, or many other administrative inquiries that are set up under Commonwealth legislation.  We simply do not know.

We interpreted what the Chief Justice was saying as an attempt to focus what had been a fairly potentially wide argument.  My friend interprets it as an invitation to make the argument clearly even wider.  Your Honour, we prefer our interpretation but, whatever the Chief Justice meant, if it is to be widened, we require an opportunity to be heard.

HER HONOUR:   The question is whether or not you have not had an opportunity to be heard.  I would have understood that the argument, if I can put it this way, may go from 25ZA ‑ the argument, if you focus on 25ZAA, 25ZAB and 25ZAC, might go in one of two ways.  It might lead to the conclusion that there is no valid vesting of power in the Federal Court.

MR GAGELER:   Yes.

HER HONOUR:   That is clearly comprehended by the first stated case but, if you look backwards, it might lead to the conclusion that the power to make determinations by the Commission has been transformed into judicial power.

MR GAGELER:   Yes.

HER HONOUR:  Yes, and that was not comprehended by the questions in the stated case.

MR GAGELER:   Your Honour, may I comment on that?  That is, as I understood, the argument as presented in its narrower form.  If that is the case ‑ ‑ ‑

HER HONOUR:   But that was the argument as I understand it, was it not?

MR GAGELER:   That is as I understand it as well, Your Honour.  Although, in answer to Justice Toohey’s questions, the argument, perhaps, could be interpreted as having been wider.  Now, if that is the consequence, Your Honour, may I say that the stated case, as originally framed, we understood as comprehending that by saying the consequence would be the invalidity of those registration provisions.

HER HONOUR:   Yes, but the difficulty is in saying that that is the consequence, as the argument was put.

HER HONOUR:  By whom?  By the plaintiff, Your Honour?

HER HONOUR:  Yes.  On one view of the argument, the effect is to go back, subject to severance, and invalidate the investigation and determination procedure or, at least, the determination procedure.

MR GAGELER:   Yes.  The view of the plaintiff’s argument that Your Honour is now putting to me is one which I would readily embrace and, I think it accords with my own understanding of it.  I am not sure that it actually accords with the case that Mr Corr saw himself as being able to frame by these new questions before Your Honour.  If that is the case, then we have presented the arguments, including the reading down arguments.  If it is a wider case, though, Your Honour, it is something different.

HER HONOUR: Well, the reading down arguments are - if they are put to one side for the moment, because the point at which you read down will very much depend upon what, if any, invalidity is involved.  Now, is not the argument, as presented and as understood by you, readily comprehended by what, in fact, the Chief Justice suggested, namely the question whether ‑ and if you will forgive me while I get Reprint 5 here - and if so what provisions of Part III of the Act, which comprehend the whole, as I understand it, of the investigation and civil proceedings.

MR GAGELER:   Yes.  The way Your Honour explains that, though, is that is as a consequence of the previous procedure being tainted by section 25ZAA to 25ZAC.  If there is invalidity it is as a consequence of that.

HER HONOUR:   I do not know that it is tainted by ‑ ‑ ‑

MR GAGELER:   It is an unfortunate use of language, Your Honour.

HER HONOUR:   So far as the argument is concerned, whether the effect of the amendments was to invalidate the proceedings of the Commission and not merely that the proceedings of the Court were invalid.

MR GAGELER:   Yes, that is the effect of the 1992 amendments. 

HER HONOUR:   Yes.

MR GAGELER:   Yes, Your Honour.  I have no difficulty witha a question in that form.

HER HONOUR:   So the form would be whether any, and if so what, provisions of Part III are invalid.

MR GAGELER:   Would Your Honour consider adding, “whether, as a consequence of the amendments introduced by the 1992 amendments”?

HER HONOUR:   Yes.  And that would leave it then open, if one concentrated on that first question, whether as a consequence of it it would then leave it open to see what consequences, if any, would flow by way of reading down.

MR GAGELER:   Yes.

HER HONOUR:   Yes.  I think that is a wiser course.

MR GAGELER:   Yes.  I would readily adopt that course, Your Honour.  So it is “whether, as a consequence of the 1992 amendments, are any, and if so which, of the provisions invalid?”

HER HONOUR:   Of Part III?

MR GAGELER:   Yes.  There is no difficulty with that.

HER HONOUR:   Do you understand Mr Corr?

MR CORR:   Yes, I do, Your Honour.  That, however, might leave it open for another day for determination whether the investigation and determination provisions

inserted by the 1986 Act were in fact invalid ab initio but then I am not overly concerned with that.

HER HONOUR:   That was never argued ‑ ‑ ‑

MR CORR:   That was never argued.  I am not concerned with that.  As Your Honour has stated, I think we are amenable to that.

HER HONOUR:   That would leave any questions of the kind involved in your question 2, Mr Gageler, until a later date.

MR GAGELER:   I had thought that now question 2 - this is a severance question, Your Honour.

HER HONOUR:   Yes.

MR GAGELER:   Your Honour, there is no reason why that could not be dealt with.  Our argument on that was put.

HER HONOUR:   It might disappear, depending on - yes.

MR GAGELER:   If we win the case on the substantive point at this stage but - - -

HER HONOUR:   It is not a question that automatically follows from the - - -

MR GAGELER:   I would urge Your Honour if it does not automatically follow, to consider that second question because it appeared to us that that is what the Chief Justice had in mind; although he said 86 he probably meant 92.

HER HONOUR:   Yes, but if the question is posed as I suggested.

MR GAGELER:   The answer to the question could readily involve addressing the question of severance, but not quite as clearly as if there was a second question.

HER HONOUR:   Yes.  But the second question, as you pose it, is somewhat different in effect, is it not?

MR GAGELER:   Possibly.

HER HONOUR:   You would want to go to the position where one says part of the amending legislation is valid and part is invalid and by reason of the invalid part there was never any alteration to the law.

MR GAGELER:   Only the part, Your Honour, that is self‑contained and says, “Take out this section and insert these other four sections.”  That is the only part.

HER HONOUR:   Yes, but I think that might be a question that can conveniently be put to one side until one determines the first question.

MR GAGELER:   That may be so, Your Honour, but what we have to say on that we have already said at page 53 of the transcript.

HER HONOUR:   Yes, and the parties will have an opportunity to deal with it.

MR GAGELER:   By further hearing before the Full Court?

HER HONOUR:   Yes, the parties will, once the first question is answered, have an opportunity to say what the consequence is for the action or for further proceedings in the action, and it may or may not be before a Full Court, but it may be.  Or it may be by way of written submissions or maybe not.

MR GAGELER:   Your Honour, may I take the worst case scenario from the Commonwealth’s point of view?

HER HONOUR:   Yes.

MR GAGELER: That is that the Court would find that with sections 25ZAA to 25ZAC in the whole proceedings before the Commission, take the character of judicial proceedings and that would be invalid under Chapter III of the Constitution. Now, the immediate next question, which has grave consequences for Commonwealth administration, is, “Well, does that mean that you say that that provisions of the 1992 Amendment Act is invalid or does it mean that you treat it as being there and the whole part of the Act potentially is invalid?”, that is the 1975 Act. That is an answer which, for purposes of administration, we would seek to know at the time of the answer to the other question.

HER HONOUR:   That is why I say it might be better to leave your second question at large with your right to raise whatever was the appropriate question (2) once the answer to question (1) is known.

MR GAGELER:   I understand what Your Honour says.  I can only repeat that we put our argument on that, and that is at page 52 of the transcript.

HER HONOUR:   Yes, but there may be another argument you want to put at the end of the day.

MR GAGELER:   There may be much more we would say, Your Honour, yes.

HER HONOUR:   Thank you.  Mr Corr, do you understand that?  Does that accord with your understanding of your argument?

MR CORR:   Yes, I am quite in agreement with that, Your Honour.  It just gets down to there being one question being asked, and that is:  which, if any, of the sections of Part III ‑ ‑ ‑

HER HONOUR:   Yes.  “Whether, in consequence of the 1992 amendments embodied in the Sex Discrimination and Other Legislation Amendment Act 1992 as they affect the Racial Discrimination Act 1975, any, and if so which, of the provisions of Part III of the Racial Discrimination Act are invalid.”

MR CORR:   Yes, I am in accordance with that.

MR GAGELER:   Yes, Your Honour, just one other slight complication; it is just a matter of form and it may not need be addressed in the question, but there were further amendments to the 1992 amendments by the Law and Justice Amendment Act 1993.  That may well be comprehended in the question just framed by Your Honour, and I would treat it as so, but I should simply draw that to Your Honour’s attention.

HER HONOUR:   What are the 1993 amendments?

MR GAGELER:   They introduce some amendments to section 25ZAB which may not be of any consequence to the questions of validity.  Section 18 of the Law and

Justice Legislation Amendment Act 1994, which is No 13 of 1994, introduced some amendments to section 25ZAB and would need to be the 1992 amendments as amended by the 1993 amendments.

HER HONOUR:   Yes, but can I ask this:  do the 1993 amendments have any consequences for validity or invalidity?   They do not, do they?  No one suggested that.

MR GAGELER:   I could not say categorically that they do not.  Before the 1993 amendments, as I recall, the scheme was that there was a right to seek review within 28 days, and if review was not sought within 28 days then there was no further right.  The 1993 amendments allow review with leave of the court after the 28 days, so on one view they could have some consequence for validity.

HER HONOUR:   Well, in that case “whether, in consequence of the 1992 amendment and/or the 1993 amendments”.

MR CORR:   Yes, I am amenable to that course.

HER HONOUR:   The stated case will be altered accordingly.

MR CORR:   If it please the Court.

HER HONOUR:   There is no need to do anything further in this is there, no other consequential orders sought about the attendance today, certifying for the attendance of counsel, or anything of that nature?

MR GAGELER:   That would be appropriate, Your Honour.

HER HONOUR:   I will certify that this was a matter that was appropriate for the attendance of counsel in chambers.  Court will now adjourn.

AT 9.47 AM THE MATTER WAS ADJOURNED SINE DIE