Brandy v Human Rights and Equal Opportunity Commission

[1994] HCATrans 40

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

Case stated

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 OCTOBER 1994, AT 12.39 AM

Copyright in the High Court of Australia

MASON CJ:   Before appearances are announced, there is something I wish to say.  In a newspaper report this morning, it was suggested that I had brought this case forward so that the Court could decide before my retirement what “may be a landmark case on the interpretation of the Constitution”.  That suggestion is without substance.  The Senior Registrar of the Court, Mr Jones, without consultation with me, gave the parties a tentative date for hearing in October at or about the time when Justice Gaudron stated the case for the Full Court on 22 March 1994.  The Senior Registrar assures me that the listing of the case for hearing involves no departure from the usual practice of the registry with respect to listing arrangements.

MR G.C. CORR:   May it please the Court, I appear together with my learned friend, MS A.F. TWOMEY, for the plaintiff, Mr Harry Brandy.  (instructed by Aboriginal Legal Service Limited)

MR M.J. HIGGINS:   If Your Honours please, I appear for the third-named defendant, Mr John Bell.  (instructed by Higgins)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:   If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, intervening for the Attorney-General of the Commonwealth.  (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC:   If the Court pleases, I appear with MR N.J. WILLIAMS for the applicant on the motion to be heard as amicus.  (instructed by the Public Interest Advocacy Centre)

MASON CJ:   Mr Basten, we will hear that application now?

MR BASTEN:   If the Court pleases.  There was a notice of motion filed and two affidavits were filed in support of that motion indicating the nature of the assistance that the Public Interest Advocacy Centre wished to give and the nature of the support it had from various peak community organisations with an interest in the area of discrimination and in the law.

MASON CJ:   There has been one material change, has there not, since that material was prepared and that is that the Commonwealth is now intervening?

MR BASTEN:   That is so, Your Honour.

MASON CJ:   It will present, presumably, a full scale argument in support of validity?

MR BASTEN:   That may well be the case, Your Honour.  I am not aware of precisely - - -

MASON CJ:   Can we ask the Solicitor now?

MR BASTEN:   Certainly.

MR GRIFFITH:   Full but concise, Your Honour. 

MASON CJ:   All the more effective for that, Mr Solicitor.

MR BASTEN:   Yes, I accept what Your Honour says.

MASON CJ:   So that you are not here, as it were, to fill a gap?

MR BASTEN:   We are not here to fill a gap in the sense that there would be nobody here to support the validity.  We are here, in a sense, to fill a gap in that there are others interested beside the Commonwealth of Australia in maintaining the validity of the legislation and the legislative scheme.

McHUGH J:   There might be six million Australians who are.

MR BASTEN:   That might well be so, Your Honour.

McHUGH J:   Why should you be given any special privilege?

MR BASTEN:   We are not seeking any special privilege, Your Honour.

McHUGH J:   That is what it seems to me to be, Mr Basten.

MR BASTEN:   Put in those terms, Your Honour, I would not wish to pursue the matter.  What we say is that we may be able to give some assistance to the Court and that if there were other applicants then, of course, the Court would need to consider how it was to manage its business so that the fear that, I think, is behind what Your Honour is putting - that there may be a flood of material put before the Court which would not be of assistance to it - would become a real issue.  In this case, in my submission, it is not.  The basis on which we would seek to be heard is a well-established one.  It has given rise to rules in the United States to make sure that such matters are managed.  It is, in my submission, in public interest litigation of this kind of assistance to the Court to have various views expressed and different slants, perhaps, on the significance of the legislation available to the Court for its assistance. 

The submissions that we sought to make in support of our application are set out in writing in an exhibit to the primary affidavit of Ms Durbach, and I would take it that those have been read and there is little that I would wish to add to those materials.

MASON CJ:   Yes.

MR BASTEN:   The only other thing I would say is that in support of the application, and perhaps a matter not dealt with in detail in the written submissions, is the nature of the assistance which may be provided as set out by the Full Federal Court in US Tobacco v Avco, but on the assumption that the Court is familiar with the material contained in that judgment, I do not seek to read from that case.  Those are my submissions, if the Court please.

MASON CJ:   Yes, thank you, Mr Basten.  Mr Corr, what do you say as to this application?

MR CORR:   In this application we have no submissions, Your Honour.

MASON CJ:   Do other counsel at the bar table wish to put a submission to the Court in relation to Mr Basten’s application?

MR GRIFFITH:  Your Honours, we have got no objection to the Court reading the written submissions.  We hope that the intervention does not cause the case to go beyond today.

MASON CJ:   Mr Higgins, do you wish to say anything?

MR HIGGINS:   We have no objection to the proposed intervention.

MASON CJ:   The Court will take a short adjournment in order to consider the application.

AT 12.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.50 PM:

MASON CJ:   The Court has come to the conclusion that Mr Basten’s application should be refused.

MR BASTEN:   If the Court pleases.

MASON CJ:   Mr Corr?

MR CORR:   Your Honours, I have a summary of our submissions which I will hand up to the Court.

MASON CJ:   Thank you.

MR CORR:   Your Honours, this case raises one simple question - - -

MASON CJ:   You might give us an opportunity to read the submissions first, Mr Corr.

MR CORR:   Indeed, Your Honour.

MASON CJ:   Yes.

MR CORR: Your Honours, this case raises one simple question and that is do sections 25ZAA, 25ZAB and 25ZAC of the Racial Discrimination Act 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?  I think it is not in question that the judicial power of the Commonwealth cannot be exercised by a body other than a court or a judicial officer.

The Human Rights and Equal Opportunity Commission is not a court established under Chapter III of the Constitution, nor even in this case where the Commissioner is a person learned in the law as a commissioner or judge. Therefore, the question becomes: do the determination and registration provision of the Racial Discrimination Act constitute an exercise of judicial power?

The exact nature and scope of judicial power has not and, I would submit, cannot be specifically defined.  There are, however, indicia as to when judicial power is being exercised.  The usual starting point is the description given by Chief Justice Griffith in Huddart Parker v Moorehead, 8 CLR 330, at page 357 at line 26. His description was that judicial power is:

the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.  The exercise of this 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.

Chief Justice Griffith consequently stated in Waterside Workers’ Federation v J.W. Alexander Ltd, 25 CLR 434, at page 442, line 28:

Without attempting an exhaustive definition of the term “judicial power”, it may be said that it includes the power to compel the appearance of persons before the tribunal in which it is vested, to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin, and to order right to be done in the matter.

He then said further at 443 in the same case at line 29:

For, in any view, the duties which are to be declared by a tribunal consequent upon a legal obligation are matters for the exercise of judicial power.  For myself, I cannot understand the creation of a tribunal except for declaring and giving effect to some right existing at the time of such declaration and giving effect.  If, however, the only powers conferred upon a so‑called tribunal are in the nature of calculation, or the mere ascertainment of some physical fact or facts, and not the declaration of or giving effect to a controverted matter of legal right, it may be that they do not appertain, except incidentally, to the judicial power.  It is not disputed that convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to that power.

It should be noted at this stage that section 25Z(1)(b)(iv) of the Racial Discrimination Act empowers the Human Rights and Equal Opportunities Commission to declare that the respondent pay the complainant damages.  And there are other provisions contained within section 25Z that could also be seen to constitute a penalty provision of some sort.

DAWSON J:   Well, it is a declaration that he should pay, not imposing an obligation to pay.

MR CORR:   Yes, but together with the registration provision, that does, in fact, I would submit, Your Honour, make it that it is an obligation to pay. 

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

MR CORR:   No, though I think that is arguable possibly that that particular provision could also be invalid.  In fact, most of that particular part of the Act could also be held to be invalid.  But that is not what I am submitting in this particular case.

MASON CJ:   It forms no part of your argument, does it?

MR CORR:   No, it does not, Your Honour.

MASON CJ:   So we proceed on the footing that your argument assumes the validity of 25Z.

MR CORR:   Yes. Your Honour.  Though, of course, it may be that during this hearing Your Honours come to the conclusion that perhaps other parts of the Racial Discrimination Act could also be invalid.

MASON CJ:   Not as a result of any argument you are putting, from what I gather is the shape of your argument.

MR CORR:   No. Your Honour, it may be from something that the Solicitor says, for example. 

MASON CJ:   I think we may have to call for Mr Basten after all.

MR CORR:   Yes.  This Court has often recognised that there can be an overlap between the judicial and the executive arms of government, and the determination of which arm is exercising some power has to be ascertained by an examination.  As Justice Isaacs held in Federal Commissioner of Taxation v Munro, 38 CLR 153, at page 175:

But there are many functions which are either inconsistent with strict judicial action, as the arbitral functions in Alexander’s Case.....or executive action.

And immediately prior to that he had described certain actions as:

appropriate exclusively to judicial action, as punishment for crime or trial of actions for breach of contract or for wrongs.

In order to determine whether or not there has been an exercise of the judicial power there must, of course, be a differentiation between the judicial and the arbitral functions.  In Re Ranger Uranium Mines, 163 CLR 656, at page 666, the Court, consisting of Chief Justice Mason and Justices Wilson, Brennan, Deane, Dawson, Toohey and Gaudron, held that:

The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken.  This inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations.  But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.

It is submitted, Your Honours, that the function exercised by the Human Rights and Equal Opportunity Commission is not an arbitral function.  It does not determine what the relationship between the parties will be in the future but rather what their legal rights and obligations are based on past behaviour.

In the present instance it may well be that there would be no further contact between my client and the complainant, the third respondent, in which case it could not be said to be an arbitral function as determining their relationship in the future.  It might be argued that my client will be required to pay certain moneys to the third respondent and this constitutes some sort of future contact.  If that is the case then all actions in tort would also be considered not to be judicial but to be arbitral.

MASON CJ:   Mr Corr, we will adjourn now and resume at 2.15.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ:   Yes, Mr Corr.

MR CORR:   Thank you, Your Honour.  Looking at the exact nature of judicial power, in Victorian Chamber of Manufactures v The Commonwealth, 67 CLR 413, at page 422, Justice Starke at line 19 held:

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.

Clearly, a determination that a person has in some way acted in a manner contrary to the Racial Discrimination Act would fall into that category.  This could be described as perhaps a broad view of judicial power.

However, in the same case, at 417, Chief Justice Latham, in holding the particular regulation which was in question outside the legislative power, stated:

This regulation assumes to empower a Minister to form an opinion that a person has committed an offence by contravening the Regulations and to impose a penalty by closing his premises in respect of such contravention. Such a regulation appears to me to involve the vesting of judicial power in a Minister and to constitute an infringement of s 71 of the Constitution, which requires that the judicial power of the Commonwealth shall be exercised only by courts.

That could be described as a more narrow view of judicial power, firstly a finding and then the imposition of some form of penalty, although, of course, the broader view I described could be seen as a necessary flow‑on of some sort of penalty being imposed.

It is submitted whether you take either a broad or a narrow view, then the provisions of the Racial Discrimination Act that are in question are contrary to the Constitution. If the narrow view is adopted, which I would submit is probably the better view, then the combination of the determination by a commissioner, combined with the enforcement provisions, constitutes an exercise of judicial power and is therefore invalid.

DAWSON J:   What was the infringement of Part II of the Act in this case?

MR CORR:   In this particular case, Your Honour?

DAWSON J:  Yes, in this particular case.

MR CORR:   It was alleged that my client had said words which were racially discriminatory.

DAWSON J:   It was an infringement of 9(1), was it?

MR CORR:   Yes, I believe so, Your Honour, and it was also involved in the workplace.  That is why ATSIC became involved, the employer - that the comments led to certain consequent acts against the complainant which it was alleged occurred because of his particular race, or so it was found by the Commissioner in this particular instance.

TOOHEY J:   Mr Corr, I do not want to take you ahead of your argument if you are coming to this but is the attack that is made on the particular sections based on the fact that a determination of the Commission is registered and takes effect as an order of the Federal Court?

MR BELL:   Yes, that is correct.

TOOHEY J:   Or is it that it is enforceable in some way?  In other words, if, for instance, the sections provided their own machinery for enforcement and did not provide for registration and taking effect as an order of the Federal Court, would the same arguments be offered?

MR CORR:   Most definitely, Your Honour, because that would be a determination of the legal rights and obligations, and a penalty would be imposed.

TOOHEY J:   Yes, just so I can understand the argument.  It is not focused upon the fact that the determination is registered?

MR CORR:   No, Your Honour.

TOOHEY J:   And takes effect as an order of the Federal Court, although in fact that is what the sections provide.

MR CORR:   That is correct, Your Honour.  I think that those particular provisions were worded in that way in an attempt to make it that the judicial power was in fact seen to be exercised by the court, though in our submissions we would say that the court does actually have no role in actually making any determination, and the role of the Registrar is merely as a rubber stamp.  The Registrar must register the determination.  There is actually no independent action that the Registrar can take in this particular case.

BRENNAN J:   What is it that you focus on as the indicium of judicial power here?  Is it the nature of the inquiry, the order that is made, or the registration with a view to enforcement of the order, or a combination of all three?

MR CORR:   I think it has to be a combination, Your Honour, because quite often there could be investigations into whether or not particular laws or regulations of the Commonwealth have been breached, and that could fall within executive power.  But when there is then the imposition of a penalty on people for having breached those particular laws, and obviously some enforcement mechanism, then it becomes part of the judicial power.

An example of where it might be within executive power is a Minister of the Crown wanting to know the efficacy of particular Acts of Parliaments for regulating particular activities.  He might want to find out whether there has been X amount of heroin smuggled into Australia or something like that, or whether particular taxation laws have been followed or something like that, and that they would make some form of investigation as to whether or not laws had been breached.  But so long as that was just something to determine whether there had been efficacy of particular laws, then it would not be an exercise of the judicial power.

However, when you have a combination of a finding that there has been a breach of a particular law combined with a penalty being imposed on the person or persons who want to breach that particular law, then we would submit that is an exercise of the judicial power of the Commonwealth.

BRENNAN J:   I am having difficulty following ‑ I know the words that you are using, the concept you are addressing, but I have not at the moment got my mind around what are the particular functions under this Act.  Is there a breach of a law in the sense of “thou shalt or shalt not do something under a penalty”?

MR CORR:   Yes, Your Honour.  In section 9 it is unlawful for a person to do any act.

DAWSON J:   Then you go to section 22 which allows for a complaint.

MR CORR:   Yes, that is correct.  And then ‑ ‑ ‑

DAWSON J:   25Z.

MR CORR:   Wind up at 25Z where the determination is made that in fact there has been ‑ that the complaint is substantiated.  That is under 25Z(1)(b).

BRENNAN J:   What happens then?

MR CORR:   That is:

After holding an inquiry, the Commission may:

.....

(b) find the complaint substantiated ‑

In other words, make a finding that there has in fact been a breach of a particular law, that the person has done an act involving a “distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin” in line with section ‑ ‑ ‑

DAWSON J:   Then there is a requirement that the determination must be lodged with the Federal Court ‑ ‑ -

MR CORR:   Yes, that is correct, under 25ZAA.  And then in subsection (3):

Upon lodgment of the determination, a Registrar must register the determination.

So in fact that particular provision that the Registrar must register the determination, that is to a large extent irrelevant.  It could well be that you could say that “14 days after the handing down of this determination it will have effect”, but the point of 25ZAB that the registered determination has an effect as an order of the Federal Court gives a means whereby that particular determination can be enforced.

BRENNAN J:   What is the significance of 24?

MR CORR:   I think that is more a mechanism section, Your Honour, just stating what happens on receipt of a complaint and so on. 

BRENNAN J:   It does seem to suggest that there is no liability to penalty which follows under the Act except by the decision of the Commissioner, is that right?  He has got a discretion about how he is to handle the complaint.

MR CORR:   Yes, but that would appear also to be similar to virtually any criminal matter; that it is to the discretion of a trial judge or magistrate whether or not any penalty flows from the criminal action.  They can have a variety of options open to them.

BRENNAN J:   No, not at all, I mean there is no liability upon conviction here.

DAWSON J:   Is not the scheme that it goes to the Commissioner and the Commissioner endeavours to settle it and if he cannot he then refers it back to the Commission and then 25A takes over?  I am not sure.

MR CORR:   Yes, so that if there is no capability for there to be any conciliation between the parties then a determination is made, and we would submit that the making of that determination, together with the possible imposition of a penalty by way of damages or other orders, does constitute an exercise of judicial power.

BRENNAN J:   I understand that, but I though you were putting the three together and the first element, I thought, was a breach of a law which exposed a person breaching to a liability to penalty.

MR CORR:   Whereas what Your Honour is saying is that there is no automatic liability to penalty.

BRENNAN J:   Quite?

MR CORR:   Even if there is no automatic liability, the fact that it may, in some instances, be subject to a penalty, I would submit, would constitute an exercise of judicial power. 

BRENNAN J:   That may be so, yes.  I mean, what you are saying is if there is a prospect of an order being made, which would impose a liability, by reason of antecedent conduct, that is sufficient.

MR CORR:   Yes, Your Honour.  As we have just been discussing, there is a separation between the making of the determination and the registration of that particular determination.  Now, it might be argued that because there is the splitting of these two particular functions, that the exercise of judicial power has not been exercised by any single body.  I think that this was considered in the case of Reg v Davison, 90 CLR 353. At 368, line 22, Chief Justice Dixon and Justice McTiernan held that:

the 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. 

But in that instance it was the conferring of a power on a registrar in bankruptcy to make an order operating as an order of the court that was held to be invalid as infringing section 71 and 72 of the Constitution, as at page 371, line 14.

In any instance, we would submit, as I mentioned before, that it is not the court which is exercising a power in that the Registrar is obliged to register the determination. That comes from section 25ZAA(3), that, “a Registrar must register the determination”. There is no independent activity taken by the Registrar and, as I have said, there could be some other mechanism put in place that the action of the Registrar, to a large extent, is completely irrelevant.

Even if you consider that the Registrar is exercising a particular power, the Registrar is not exercising that power as a delegate of the Court.  This matter was considered in Harris v Caladine, 172 CLR 85. Now, in that particular case, the Court held that the delegation of some functions to officers of the Court was permissible. But, as His Honour Justice Dawson said, at page 121 at line 40:

No doubt it is beyond the power of Parliament to compel a federal court to exercise any of its judicial functions through an officer of the court.  The exercise of those functions by that officer would not then be as a delegate of the court and that would be inconsistent with the requirement that the court consist only of judges. 

And His Honour Justice McHugh, at page 164, line 26, said:

It goes without saying that the Parliament cannot require the court to delegate any of its powers. 

The registration provisions, in this particular instance, are mandatory and do not arise as a result of any delegation of power from the Federal Court.

These determinations also cannot be considered as analogous to default judgments.  Where default judgments can be entered by court officials the court officials remained under the control of the court and subject to court rules and the court can exercise its discretion in relation to those proceedings.

TOOHEY J:   Mr Corr, I am just having trouble with this part of the argument.  It seems to me that you are saying that there is an exercise of judicial power involved in the actions of the Registrar in registering the judgment.

MR CORR:   No, the first part of my argument would be, no, there is no action taken there by the Registrar which constitutes part of judicial power.  But I would say that is not the case.  I would say even if you did consider that to be the case then the Registrar is not acting as a delegate of the court, which was held to be acceptable in Harris v Caladine.

TOOHEY J:   But if you do not make any complaint about section 25Z, namely the powers, the orders that the
Commission may make, at what point does the exercise of judicial power argument arise?  I put to you earlier, “Would it matter whether the Act was structured in the way that it is or whether it provided that the Commission had its own powers of enforcement?”, and you said, “No, it didn’t make any difference to your argument”.  But you seem to be concentrating now on the registration of the judgment and the consequences of the determination and the consequences of registration.

MR CORR:   It may well be, Your Honour, that I now have to go back on that undertaking I gave earlier not to raise questions about the validity of section 25Z.

MASON CJ:   You did not give an undertaking.  You were hopeful that somebody else would assign some ground of invalidity or argument.

MR CORR:   It may well be, Your Honour, that we do, in fact, have to go back and say that 25Z and, in fact, most of Part III of the Racial Discrimination Act is invalid.

TOOHEY J:   Whatever you say, at some point you have to identify what it is - and this is really the question that I think Justice Brennan put to you:  what is it that constitutes the challengeable exercise of judicial power?  Is it the fact that the Commission may make orders?  Is it the fact that they may be registered or the fact that the Commission, having made determinations, and the determinations having been registered, they can be enforced as if they were an order of the Federal Court?

MR CORR:   I think it has to be all of those, Your Honour.

TOOHEY J:   It cannot be all of those if you leave 25Z alone, can it?

MR CORR:   In that case, I would be obliged to ‑ ‑ ‑

TOOHEY J:   No, I am not suggesting what your course should be, I am just asking you, if section 25Z stands, what that does to your argument about judicial power?

MR CORR:   If the Commissioner just makes a determination that there has been unlawful conduct, if that has no further consequences, then it could well be that it is not an exercise of judicial power.

TOOHEY J:   I understand that.

MR CORR:   That would be what would happen if we left 25Z to stand on its own.  But it is when there is an attempt made to bring about some consequences as a result of that finding and to enforce those consequences.  I can see that it could well be that just the making of those particular determinations could be said to have consequences just flowing automatically from them.

TOOHEY J:   The argument then might take the form that a provision that enables a determination by some statutory body to be registered and enforced as if it were an order of the Federal Court is invalid, because that constitutes an exercise of judicial power.

MR CORR:   Indeed, Your Honour.

TOOHEY J:   I am not suggesting that is right, but I am trying to identify the way in which the argument is being put.

MR CORR: Yes, it may well be that we would have to go back and 25Z would also be considered to be in contravention of Chapter III of the Constitution in that case; but even if it were held not to be by itself, the combination of the ability to enforce any penalty which is made. I think it would have to be that we would have to argue that 25Z would also be invalid, and in fact, probably a fair proportion of Part III of the Racial Discrimination Act, and possibly also Part IV, offences relating to the Act which are mainly to do with the operation ‑ ‑ ‑

MASON CJ:   The stated case may need some reformation.

MR CORR:   Indeed.  Undoubtedly, the learned Solicitor and myself could work out what parts of the Act we would consider would have to be struck down and make further submissions.

MASON CJ:   I think you are going to find agreement from him on that.

MR CORR:   We got fairly good agreement on the stated case on this thing, so we might be able to work out what parts would be struck down;  it is not that he would agree that they should be struck down.  I think that would be going too far.  It would have to be at least those parts of 25Z(1)(b) following after the word “substantiated”, because that is making various determinations as to what the respondents should do as the result of the complaint having been substantiated.

GAUDRON J:   But when you put it on that basis, you still have to deal with section 25Z(2):

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

MR CORR:   Yes, but then there is the registration and the effect of 25ZAB that the determination has effect as an order of the Federal Court which appears to override that particular subsection.

DAWSON J:   It is the equivalent of filing an order, is it not, really?

MR CORR:   Filing an order of the court, indeed.

DAWSON J:   I mean, an order made by a court is not effective until the order is taken out.

MR CORR:   Yes, and that, clearly, is seen as being an exercise of judicial power when the court - - -

DAWSON J:   Not fully effective, anyway.

MR CORR:   Yes.

GAUDRON J:   But it cannot be enforced under subsection (3) of 25ZAB until the review period has expired.  Is not 25ZAB simply a procedure whereby the person against whom the complaint is upheld can either elect to be bound by it, or to have it reviewed?

MR CORR:   And if they do not seek to have it reviewed, then what has occurred?  There has been a finding of the Human Rights and Equal Opportunity Commission, and there has been determination that certain events should flow from that which could include the payment of a monetary penalty, or in this particular case, that the person should apologise to the complainant - which is a rather astonishing turn of events.  It seems to be outside the scope of what would have been available to a judge in a case if there had been a case of offensive language, for example.  He could not order a person to apologise, nor, I think, in defamation would that either be available.  So the Commissioner, in fact, would have greater powers than those of a judge in a number of instances.  If there is no review then judicial power of the Commonwealth has been exercised, but not by a court.

Fortunately, the question seemed to have removed most of the rest of my submissions.  The point that Your Honour Justice Gaudron raised about the potential for review, that you might consider that there was an exercise of judicial power and it may well be argued that the potential for a review of that decision in some way takes away that exercise of judicial power by the Human Rights and Equal Opportunity Commission.

However, I would refer you to the comment of His Honour Justice Toohey in Harris v Caladine 172 CLR 141, who held that:

The existence of a power to review a decision of a Registrar no more affects the character of the power exercised in making the decision than does the existence of a right of appeal.

Which I take to mean that having a right of appeal or right of review in some mechanism does not alter the nature of the original decision which is made, or the original power which is being exercised.  The comments of His Honour Justice Brennan in that same case at 111, line 21, that:

If the only restraint on the exercise of any judicial power by a non-judicial person is the availability of review by or appeal to a court constituted by a Ch III judge, it would be possible to vest all original jurisdiction in a non-judicial person and restrict the jurisdiction to be exercised by Ch III judges to appellate jurisdiction.  In my respectful opinion, the powers which can properly be exercised by persons who are not judges do not include the power of adjudication of a legal controversy pending in the court except for the exercise of powers “truly ancillary to an adjudication by the court.”

Both those judgments were made in dissent against the final decision of the court there, but I do not think that that affects the validity of those particular points.

TOOHEY J:   Mr Corr, is it only the respondent who can apply for a review?  What happens, for instance, if there is a dismissal of the complaint under section 25Z(1)(a) or a declaration under subparagraph (vii) of paragraph (b), that it would be inappropriate for any further action to be taken, and the complainant wishes to take the matter further?  Is there any avenue available?

MR CORR:   Subject to what my learned friend says, I do not believe that there is, Your Honour.  But I assume there probably would be some form of administrative review available of those particular decisions, but I do not think there is any appeal mechanism available to a disgruntled complainant.

TOOHEY J:   Yes, thank you.

MR CORR:   Also in following - even if you hold everything else to be valid, the question remains whether there are in fact appropriate appeal mechanisms contained within these particular provisions.  In the majority decision in Harris v Caladine it was held that there should be appropriate appeal mechanisms from decisions of the Registrar of the Family Court.  The appeal mechanism in this particular case is not a hearing de novo, but rather a rehearing.

Even if every other aspect of this scheme is held to be valid, this is probably not a sufficient degree of review by the court, so we would submit - - -

BRENNAN J:   Why is it not sufficient?

MR CORR:   That it is not a hearing de novo, but rather it is a rehearing.  Even though the judges can review all issues of fact and law, they do not go back and hear all the witnesses again; that they are under 25ZAC(5), “A party cannot adduce new evidence without the leave of the court.”  So it is basically on the evidence that has come up from the court below but with the leave to adduce further evidence.

GAUDRON J:   You are not suggesting that the effect of that is that the Federal Court is not exercising judicial power when it conducts a review, are you?

MR CORR:   No, not at all, Your Honour, no.

GAUDRON J:   Do you accept that if everything else is valid it is judicial power at that point?

MR CORR:   Yes indeed, Your Honour.  But whether or not, according to the Harris v Caladine idea, that there has in fact been a proper review of the original decision, but I am aware that the Chief Justice and Justice Deane said that “so long as all issues of fact and law could be considered, that it probably was appropriate.”  However, that was in relation to consent orders which were made by a Registrar of the Federal Court.

In a decision which is contested, as in this particular case, as in fact all determinations would be contested, I would submit that if every other part of the scheme was held valid there would still need to be the ability for a hearing de novo because of the very nature of the matter which is being reviewed.

MASON CJ:   What was the position with the old Taxation Boards of Review?  The statute provided for an appeal, so‑called, from the decision of a Board of Review to a single Justice of this Court in the exercise of the original jurisdiction of this Court on a question of law, as I recall.  The question was agitated in connection with Board of Review decisions.  What was the outcome of that in a number of cases?

MR CORR:   I am not quite certain, Your Honour, but one is going back to Federal Commissioner of Taxation v Munro and so on.

McHUGH J:   And Shell v The Commissioner of Taxation.   The legislation was upheld in Shell, was it not?

MR CORR:   Yes, but there you were having something which is ancillary to the executive power, namely the gathering of taxation and whether or not a particular amount of taxation which the executive is entitled to gather is appropriate.  The review to a single judge on a point of law is just whether or not the executive, in carrying out its executive functions, has properly exercised those functions, whether it has in fact followed the law.

In this instance you are not looking at a determination whether the executive is properly carrying out its functions, but a dispute between two individuals who are not part of the executive.  In this instance they both happen to work for a government body, but it could well be that it is a person who is refused service in a hotel, two persons who are completely outside of the executive, and that there you are looking at the rights and obligations of individual citizens.  The Taxation Boards of Review ‑ I do not think there would be any difficulty.  The executive can set up all possible means of review within itself to assist itself in its particular functions, but when there is an attempt to set up a body which is determining the rights and obligations of individual citizens, I would submit that is a completely different matter.

McHUGH J:   In the Shell case the Privy Council held that the powers which were conferred upon the Board of Review were administrative powers reviewing the determination of the Commissioner of Taxation, so they were purely administrative powers and they were not exercising judicial power; it was just simply administrative power.  They were just put in the place of the commission.

MR CORR:   Yes, they are still within the executive which, I would submit, is quite a different situation to the situation which occurs with these determinations, where it is the people completely outside of the executive whose rights and obligations are being determined.

It is submitted that the existence of the various review provisions does not alter the nature of the determination and registration provisions and that they are and remain an exercise of the judicial power of the Commonwealth. 

If this entire scheme is held to be valid, we arrive at the situation where if there is no application for a review, as I discussed with Justice Gaudron, the determination takes effect and is in force.  Clearly, this is an exercise of judicial power of the Commonwealth, but who has exercised the power?  It cannot be the Human Rights and Equal Opportunity Commission because they are constitutionally incapable of exercising the judicial power of the Commonwealth.  It cannot be the Federal Court in its own right because the Federal Court has taken no part whatsoever in the proceedings.  It cannot be the Registrar of the Federal Court because the Registrar has taken no independent action.  All that the Registrar has done is place a rubber stamp on a piece of paper and filed that particular piece of paper.

If this particular scheme is valid then a question arises as to what other bodies could be set up to assist in the exercise of judicial power?  Almost all determinations as to whether a person has or has not breached a law of the Commonwealth could be given to some other body and as Justice Brennan pointed out in Harris v Caladine, the role of Chapter III judges could be restricted to purely appellate jurisdiction. But, Your Honours, I would submit that this cannot happen because the answer to the question reserved must be that all of those particular provisions are held to be invalid on the ground of inconsistency with Chapter III of the Constitution.

Now, Your Honours, my learned friend, Miss Twomey, has some submissions to make.

BRENNAN J:   Before you depart, there are a couple of sections here that still have me troubled.

MR CORR:   Certainly, Your Honour.

BRENNAN J:   Section 26 which denies that any breach of Part II is an offence.  Now, if no breach of Part II is an offence, relevantly, what is its significance?

MR CORR:   Yes, it is a curious provision there, Your Honour.  It ‑ ‑ ‑

TOOHEY J:   It does not constitute an offence, does it?

MR CORR:   Yes.

TOOHEY J:   It is unlawful and attracts whatever consequences unlawfulness is said to attract under the Act.

MR CORR:   Yes, but it does not constitute a criminal offence.

TOOHEY J:   Presumably not under the Crimes Act.

MR CORR:   Yes.  So the rationale for that might be that part which says:

nothing in this Act makes it an offence to do an act or agree with another person to do an act -

which may be an attempt to remove any possibility for conspiracy charges or something similar.

BRENNAN J:   Well then, what it does is to create a liability to suffer the procedural consequences prescribed by the Act.

MR CORR:   Yes, but that you are liable to those particular consequences would itself be - they have the nature of a penalty and it must be the substance, rather than the form of them, even though they are not possibly described as an offence that must be looked at.

BRENNAN J:   But if we look at the penalty provision, what do you say about section 25ZH?

MR CORR:   That there is just another part of the executive which is saying what the penalty should be.  That does not necessarily - if that was, in fact, done by the Administrative Appeals Tribunal then that also would be invalid. 

BRENNAN J:   I see. One final question:  what are the powers of the Federal Court on review?

MR CORR:   In 25ZAC(6):

the Court may make such orders as it thinks fit (including a declaration of right).  The orders may confirm a determination that is registered ‑ ‑ ‑

BRENNAN J:   Thank you.

MR CORR:   My learned friend, Ms Twomey, will now make some submissions.

MASON CJ:   Yes, Ms Twomey.

NEWSPEAKER

MS TWOMEY:   Your Honours, I just wish to address, briefly, some arguments raised by Mr Basten in the papers he handed to the Court about American decisions.  Mr Basten has suggested that the situation with the Human Rights and Equal Opportunity Commission is comparable to the situation of federal magistrates in the United States.  Federal magistrates are not Article III judges but, in our submission, that is not a comparable situation. 

In the United States, federal magistrates are appointed by the judges of the court, not the executive.  In order to qualify, a magistrate must have been practising in the bar of the relevant court for at least five years and, therefore, must be a lawyer which is not necessarily the case with the Human Rights and Equal Opportunity commissioners.  A magistrate can only be removed from office if a majority of the judges of the relevant district court so determine.

The actual sections which allow magistrates of the Federal Court to hear pre-trial matters also require that a court specifically designate the magistrate to hear those matters before the magistrate may do so.  So, again, it is within the control of the court. 

This was discussed in the Supreme Court in the case of United States v Raddatz, 447 US 667, at page 681 where the court noted:

In passing the 1976 amendments to the Federal Magistrates Act, Congress was alert to Art III values concerning the vesting of decisionmaking power in magistrates. Accordingly, Congress made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter, the entire process takes place under the district court’s total control and jurisdiction.

Your Honours, the validity of these sections has been challenged a number of times.  They have been upheld but the court has noted in upholding them that control of these matters is retained by the court.  One case in which they were upheld is the case of Wharton-Thomas v the United States, 721 FR(2nd) 922, where the third court of the US Court of Appeals made a comparison between these sections with federal magistrates and the situation which had occurred in the earlier case of Northern Pipeline Construction Co v Marathon Pipeline Co, 458 US 50, which concerned the validity of federal bankruptcy court hearings.

The bankruptcy court was not an Article III court and it was held, in that case, that the bankruptcy court was outside the control of normal Article III courts and the court concluded that the Act impermissibly removed most, if not all, of the essential attributes of the judicial power from Article III district court and vested those attributes in a non‑Article III adjunct.  This is quoting from the Wharton-Thomas case. 

The court, in particular, noted that the constitutional protections provided by Article III’s guarantee of life tenure and non-diminishable salary were not available to bankruptcy judges.  Moreover, the reform Act established a court, though labelled as an adjunct, that was separate and apart from the District Court.  The Court in Wharton-Thomas compared that to the situation where you have federal magistrates which are within the control of the court, and said:

In contrast, the magistrate is truly a part of the district court, appointed by its judges, and subject to dismissal by them.  A magistrate may not conduct any proceeding in a civil matter unless “specifically designated to exercise such jurisdiction by the district court or courts he serves.”  Even consensual reference of a case to a

magistrate may be vacated by a district judge, either sua sponte or in some circumstances on motion of the parties.  As with matters handled by district judges, the clerk of the district court manages the records in cases referred to the magistrate.  Thus, the magistrate does not function independently of the district court, but as an integral part of it.

Your Honours, on the basis of these cases and also we refer the Court to the case of Peretz v United States, (1991) 115 L Ed 2d 808 where the court also noted that magistrates are within the control of the court.

In comparison to the situation of the Human Rights and Equal Opportunity Commission, commissioners are not appointed by the court.  They are not within the power of the court to dismiss, and the Commission’s adjudications are not referred - the court itself has no power to ask the Human Rights and Equal Opportunity Commission to make these decisions.  All these things are matters that are determined by the legislation and not by the court and, therefore, the comparison is not valid.  If Your Honours please, that completes our submissions.

MASON CJ:   Thank you, Ms Twomey.  Mr Solicitor?

MR GRIFFITH:   May I hand the Court our submissions?

MASON CJ:   Thank you. 

MR GRIFFITH:   Your Honours, we understand that the first and second respondents have indicated they are submitting to the jurisdiction of the Court, but we are somewhat bemused, Your Honour, that it was thought that the Attorney would do other than intervene to defend the validity of the law.

We, of course, accept, Your Honour, that the power to make a binding an authoritative decision as to whether conduct infringes a statutory prohibition is a judicial power and that such a power may only be conferred upon a court constitute in accordance with Chapter III.  Perhaps another way of stating the same proposition is the terms used by His Honour the Chief Justice and Justice McTiernan in Davison, (1954) 90 CLR 353, particularly at page 366, point 3 of that report.

Their Honours said, in effect, that whilst other means may be open to it, if the Parliament chooses a judicial order as the means of effectuating an end within power, then Chapter III of the Constitution comes into play. And they continued:

By judicial order is meant an order which by its nature or description or the character given to it by the legislation involves an exercise of the judicial power of the Commonwealth.

And added:

it is beyond the constitutional powers of the Parliament to authorize any person or body to make such an order except a court constituted under ss 71 and 72 of the Constitution.

So our submissions proceed also upon the acceptance that the effect of section 25ZAB(1) of the Racial Discrimination Act, is to give a determination of the Human Rights and Equal Opportunity Commission ‑ we will call it “The Commission” ‑ upon its registration with the Federal Court, the character of a judicial order.  It does not deem the determination to be a judicial order.

DAWSON J:   But that is just ignoring the facts, is it not, Mr Solicitor?  The determination is made.  It must be registered, and when it is registered it is given the effect of an order.  What is the difference between that and taking out an order of a court?

MR GRIFFITH:   May we go on, Your Honour.  We would say the essential difference is - in our submission, the analysis is, this is the the initiating process, not the final process of taking out a final order of the court. 

DAWSON J:   What, the laying of a complaint?

MR GRIFFITH:   In essence, it is the same position, Your Honour, because of the procedures provided under the Act.

DAWSON J:   Sorry, I am not following.

MR GRIFFITH:   Well, Your Honour, can I proceed ‑ ‑ ‑

DAWSON J:   Yes, I do not - - -

MR GRIFFITH:   ‑ ‑ ‑ and then hope that I answer it as I proceed, Your Honour?  At the moment we are dealing with our preliminary, “we agree with the applicant” approaches, Your Honour, and then we were intending to deal with its justification.

So, it is accepted that for sections 27ZAA to 27ZAC to be valid, the registration scheme which these provisions implement must be consistent with Chapter III of the Constitution. That is, it involves exercise of judicial power by the Federal Court and not by the Commission. So, our submission is the key to the validity of the section lies in ‑ ‑ ‑

DAWSON J:   Mr Solicitor, you said 27 ‑ ‑ ‑

McHUGH J:   You mean 25.

MR GRIFFITH: 25, I am sorry, Your Honour. Perhaps it is better to forget 25 and refer to ZAA, ZAC for convenience, but I am sorry, Your Honours, I intended 25ZAA to 25ZAC. In our submission, the key to validity of the sections lies in seeing registration of a determination under 25ZAA as the first step in judicial process provided for by sections 25ZAB and 25ZAC or, perhaps to use the description that Your Honour Justice Gaudron did in exchange with my learned friend, Mr Corr, that, in essence, it provides a procedure whereby a person affected by the determination may elect whether to be bound, or elect to have it reviewed.

McHUGH J:   But, can the exercise of the judicial power of the Commonwealth depend upon whether a person wants to have a review, or not?

MR GRIFFITH:   It is a question of a review of what, because what our submission is is that the procedures under the Act, section 24 and then section 25A provide, in effect, a series of voluntary conciliation, then compulsory conciliation; and then there is a capacity for either judicial review in the Federal Court, or resource to the Administrative Appeals Tribunal.

McHUGH J:   Supposing there was no right of review given, would you contend that the effect of the determination by the Commission and 25ZAA and 25ZAB constitute an exercise of the judicial power of the court?

MR GRIFFITH:   No, Your Honour, our submission is it is the capacity to review which is the crucial factor here.

McHUGH J:   So the whole case really comes down to whether it makes any difference as to whether or not a person elects to have it reviewed.  But if you look at it backwards, supposing the person does not want a review, would you not say there has been an exercise of the judicial power of the Commonwealth as a result of the determination and the enforcement provision?

MR GRIFFITH:   Your Honour, in the same way that if a person served with a legal process out of a court chooses not to appear or to enter a defence and a default judgment is entered as a ministerial act.

McHUGH J:   But it is the court that does it in that particular case, and its procedures provide, no doubt, for the defence to be ‑ failing to file a defence, judgment can be signed against you.

MR GRIFFITH:   Your Honour, there is a capacity for the court to enforce orders without in every case by its rules exercising a discretion as to whether or not to enforce them.

McHUGH J:   I know, but it is the court in which the proceedings are instituted in those particular examples.

MR GRIFFITH:   Could I give Your Honour the example under the Arbitration (Foreign Awards and Agreements)Act dealing with the New York Convention on Enforcement of Arbitral Awards.  In that case, section 8(2)of the Act provides:

Subject to this Act, a foreign award may be enforced in a court of a State or Territory as if the award had been made in that State or Territory in accordance with the law of that State or Territory.

So in essence, Your Honour, the Convention obligation there which is carried into effect is a capacity to register as of right within the court, and then to enforce as a judgment of the court.  There are similar provisions in the Family Law Act dealing with the enforcement of foreign maintenance orders.

Our submission is the fact that there is the statutory entry in itself is not fatal.

McHUGH J:   That may not be, but in the particular illustration you gave there is an historical connection which courts have historically allowed parties to sue on judgments given by courts of other jurisdictions.

MR GRIFFITH:   In our submission, the characterisation of the procedure is that the registration is the first step, not the final step, in the process of inquiry and determination by the Commission.

DAWSON J:   That is unrealistic when the registration automatically follows on the determination.

MR GRIFFITH:   With respect, it is not, Your Honour, because when one looks at the course of the procedures ‑ it might assist if I gave the Court some statistics as to the nature of the procedures under this Act.  Since January 1993, I am instructed, when the relevant amendments came into effect, there has been something between 2000 and 2500 complaints per year.  Of those some 93 per cent are settled or withdrawn before they were referred to the Commission for formal hearing.  So there is after that some further 4 per cent settled or withdrawn before the formal commencement of the Commission hearing, and the complaints actually heard are some 3 per cent of the total.  My instructions are that since January 1993 there have been some six to eight complaints registered.  Two are currently on review and under the provisions of the Act as amended in January 1993 there has been no final review of any determination.

DAWSON J:   But what does that show when someone ‑ ‑ ‑

MR GRIFFITH:   Your Honour, it indicates, we submit, the course of the voluntary conciliation, compulsory conciliation procedure, leading to the - - -

DAWSON J:   Well, most cases may be settled but when they are not, what happens is, someone is subjected to a determination of a body that he or she has breached the law in section 9 and, automatically, that is given the force of an order of the court.

MR GRIFFITH:   Not automatically, Your Honour, there is a - - -

DAWSON J:   There is no discretion about registering the - - -

MR GRIFFITH:   Your Honour, there is a time delay of 28 days which may be extended, and there is the capacity to - - -

DAWSON J:   But it must be done.

MR GRIFFITH:   It must be registered, yes, Your Honour.

DAWSON J:   So that the determination in fullness of time must have that force behind it, and the review procedure is nothing more than the availability of an avenue of appeal, if one decides to avail themselves of it.

MR GRIFFITH:   With respect, Your Honour, it is not an avenue of appeal.  It is a - - -

DAWSON J:   What is it?

MR GRIFFITH:   Your Honour, it is a rehearing which, within the discretion of the court, may be regarded as a hearing de novo.

DAWSON J:   It is an appeal by rehearing.

MR GRIFFITH:   Your Honour, which may be extended to appeal de novo, because there is a capacity to hear further evidence.

DAWSON J:   All right, but it is still and appeal, type of appeal, from the determination - - -

MR GRIFFITH:   It is a review.

DAWSON J:   - - - which is given effect automatically.

MR GRIFFITH:   Your Honour, it is given effect absent any notice by a person desiring to take recourse to the procedures of review by the court.

McHUGH J:   But your argument leads to some fairly extraordinary examples, does it not?  Would it not mean that the Commonwealth could empower the Director of Public Prosecutions to try somebody, convict the person, sentence the person, and have the judgment of conviction registered in the Federal Court?

McHUGH J:   With respect, we are dealing with a provision here, firstly, which provides that the effect of the Commission order is that it does not bind the parties and, secondly, that it is not an offence, so that - - -

McHUGH J:   That is neither here nor there that it says it is not an offence.  If the provisions of that section were not in, then, at common law, indictment would lie because of a breach of the Act, and so would an action for damages, would it not?  Is not that the theory?

DAWSON J:   And you could still provide the DPP’s decision should not bind the parties but that he must register it with the court and when it is registered, it has effect.

MR GRIFFITH:   Your Honour, the whole issue of declarations as to guilt to a criminal offence, of course, is one that is - - -

DAWSON J:   But a date does not make any difference if there is a breach of the law.

MR GRIFFITH:   Your Honour, specifically as provide, it is not an offence.  It provides civil penalties.

DAWSON J:   That may be but it is a breach breach of the law in deciding rights and liability.

MR GRIFFITH:   And provides for simple consequences, with respect.

DAWSON J:   May be.

MR GRIFFITH: Your Honours, our submission is that the registration is not a final step of any conclusive determination by the Commission. It is the first step engaging the judicial process for review provided by section 25ZAB and 25ZAC, and we say that the legislation clearly shows that this is the case. Firstly, the point we make in paragraph 1 of our submissions, is that section 25Z(2) specifically provides that a determination of the Commission is not binding or conclusive between any of the parties. Section 25Y(2) makes similar provision in relation to interim determinations.

The second indication in the legislation is that registration is the first step in judicial proceedings, lies in the mechanisms provided in section 25ZAB itself, and we refer to these in paragraph 3 of our submissions: upon registration, the respondent has a right to obtain review of determination simply by applying within the time limit. That is section 25ZAB(5) and (6), and may obtain review outside that period - section 25ZAB(7). Section 25ZAA(4) requires the respondent to be given written notice of the registration of the determination within 7 days. It is also provided that pending the expiration of the 28-day review period, and where in the normal course of review is sought during that 28-day period pending completion of that review, there should be no action to enforce the determination - section 25ZAB(3) - and the failure of the respondent to comply with the positive requirement of the determination is not a contravention of the determination - section 25ZAB(4).

TOOHEY J:   Mr Solicitor, can I just ask you this: in the case of a determination made under section 25Z(1) which either under paragraph (a) dismisses the complaint or under subparagraph (vii) of paragraph (b) declares:

that it would be inappropriate for any further action to be taken -

it would seem, having regard to section 25ZAA(2) that that determination, negative though it is, must be lodged in the Registry and having been lodged, presumably, section 25ZAB and other sections apply to it, except that there is no power of review in the case of an unhappy complainant.

MR GRIFFITH:   Yes, Your Honour.

TOOHEY J:   Well, where does all that lead one?

MR GRIFFITH:   Well, Your Honour, so far as those registrations are concerned, with respect, not very far.

TOOHEY J:   It is just curious that the Act does not appear to distinguish between determinations which once registered may be enforceable in the language of the Act and have consequences for the respondent, and determinations which appear to have no consequences, except negative implications, which nevertheless must be registered and when registered in some notional way are clothed with all the trappings of registration.

MR GRIFFITH:   Although no consequence so far as judicial operation is concerned, Your Honour.

TOOHEY J:   Yes, well I appreciate that.  I just wondered if there was any reason for requiring all determinations to be registered?

MR GRIFFITH:   Your Honour, perhaps thoroughness, but that would just be mere speculation to suggest that.  It certainly enables them to be on a public record because otherwise there is no procedure under the Act for a public register of determinations.

TOOHEY J:   And is there anything apparent either in the Act or in the second reading speech that makes it clear why the - what I might call the unsuccessful complainant has no avenue of review?

MR GRIFFITH:   Your Honour, I do not understand that there is, but I will inform Your Honour if that is not the case.

TOOHEY J:   Yes, all right, thank you.

MR GRIFFITH: Your Honours, we say the third most significant indication that registration is the first step in judicial proceedings in the Federal Court lies in the form of review provided by section 25ZAC. This is a point made in paragraph 4 of our submissions. Although it has styled a review the procedure before the Federal Court, we submit, is obviously an exercise of original jurisdiction.

McHUGH J:   But, why do you say that, Mr Solicitor?  They cannot look at the witnesses, they cannot take fresh evidence without the leave of the court, there is no retrying of the matter, surely it is appellate jurisdiction?

MR GRIFFITH:   With respect, Your Honour, there is a distinction that was discussed by Justice Dawson in Harris v Caladine for a review and hearing de novo and Your Honour also in Harris v Caladine referred to hearing de novo having regard to the evidence at the time of the rehearing, I think it is page 110 but, Your Honours, in this case when one looks at the provisions of the Act it is clear that there is a review, in the sense referred to by His Honour Justice Dawson, with a complete discretion in the Court as to the issue of new evidence.  So that there is nothing in the Act which restricts the Court from engaging in a complete hearing de novo as distinct from a mere review.

McHUGH J:   That jurisdiction is the same as the New South Wales Court of Appeal.  It can hear further evidence and review the issues of fact and law.  There does not seem to me to be a scintilla of difference between its jurisdiction on appeal and the Federal Court’s jurisdiction on appeal.

MR GRIFFITH:   With respect, Your Honour, there is the greatest difference in that the Court of Appeal is bound to act as a judicial body reviewing the decision of another judicial body.  In this case, apart from the restriction as to evidence which is limited subject to the discretion of the court, our submission is that the court is at large in determining the matter to the extent that we would say on the face of things, the finding and determination itself would not even necessarily be admissible before the court on the review.  The evidence is provided to be the same evidence, but in this case there was a substantial finding ‑ I think it might be in the Court’s papers which are filed with the Court by Mr Castan ‑ and we would submit that on review that discussion and finding of the determination would stand as nought.

The function of the Court is to review.  We would refer the Court to what His Honour Chief Justice Dixon said in Farbenfabriken Bayer Aktien‑Gesellschaft v Bayer Pharma Pty Ltd, 101 CLR, particularly at page 657, where he said:

But of course it must be submitted as a judicial matter to be determined by an exercise of the judicial power.  The fact that the proceedings, although necessarily belonging to the original jurisdiction, are called an appeal is of little or no importance.  What is of importance is whether the jurisdiction which the section purports to confer is not only a jurisdiction with respect to a matter lying within the nine matters referred to in ss 75 and 76 but is so conferred as to involve the exercise of judicial power.

Our submission is that plain terms of section 25ZAC(4) enabling the court in original jurisdiction to review all issues of fact and law, and under subsection (6) to make such orders as it thinks fit, including an order confirming a registered determination, is an original jurisdiction conferred upon the court, a hearing which is at least a full review, unfettered except by the prima facie position that the evidence is to be the evidence which was before the Commission, subject of course to the capacity of a party ‑ and the court has a complete discretion as to that matter ‑ to adduce new evidence under subsection (5). The court retains complete control over the proceedings before it.

So our submission, Your Honours, is that on a fair reading of what is provided, it is not the situation that this is equivalent of the Court of Appeal in relation to a court. We submit it is the equivalent of a court at first instance being confined initially to evidence which has already been gathered and considered by the Commission, the determination of which has given rise to the initiating process in the court. Of course, in conducting this review under section 25ZAC, the Federal Court exercises judicial power. That must be the case. We would refer the Court to Reg v Davison, particularly t the parts of Their Honours the Chief Justice and Justice McTiernan’s judgment at page 370, where the Court will recollect Their Honours discussed the decision of Justice Holmes in Prentis v Atlantic Coast Line Co.  Justice Holmes said:

But the effect of the inquiry, and of the decision upon it is determined by the nature of the act to which the inquiry and decision lead up . . . The nature of the final act determines the nature of the previous inquiry.

So, our submission is that in the statutory context there is a determination which has no force, in effect, in the absence of registration and the registration leads automatically, at the option of a respondent, to an exercise of judicial power on the part of the Federal Court resulting in the making of a judicial order.  In this context, our submission is registration is akin to the filing of an originating process and the circumstance of a registered determination comes into full effect in the absence of a review being sought at the expiration of 28 days.  We submit it is akin to entry of a default judgment.  Neither aspect of the scheme does violence to any of the commonly accepted attributes of the judicial process.

Looking at the duty of the Registrar, we submit that is clearly a ministerial duty, not unlike the acceptance of the filing of an originating process or the entry of a default judgment. We say that there is no reason - and we refer to this in paragraph 7 of our submissions - why such a ministerial duty should not be imposed on a court officer directly by the Parliament under section 51(xxxix) of the Constitution. I refer the Court to Le Mesurier v Connor, 42 CLR at pages 522 to 523.  At page 523, Justice Starke referred to the fact that:

there are many administrative and ministerial functions incident to the exercise of judicial power which in no wise require the exercise of that power, and which may be performed by various officers and clerks attached to the Court.....So too, in my opinion, the Parliament might authorize the appointment of Commonwealth officers for the performance of such functions and duties. 

TOOHEY J:   Mr Solicitor, on your argument, I take it that it is the existence of the power of review which itself precludes characterising the functions of the Commission as judicial.

MR GRIFFITH:   Yes, Your Honour, with the registration procedure, because up to the point of section 25Z, we submit it could not possibly be regarded as judicial because there is no binding determination.

TOOHEY J:   But you say after that it is not judicial either?

MR GRIFFITH:   No, Your Honour.

TOOHEY J:   Do you mean, “No, you do”?

MR GRIFFITH:   No.  Your Honour, what we say is that the next process of registration has the effect of placing the matter within a judicial body, the court, and thereafter the judicial body’s function applies to characterise what occurs.  In our submission, Your Honour, what occurs is, in the absence of objection, the equivalent, we submit, of a default judgment procedure to give force and effect to the registration.  In the case of an objection, Your Honour, then the ordinary judicial process applies and we have made our submission that that constitutes a full rehearing by the court.

TOOHEY J:   Yes, I understand that but you are also saying, I think, that if the review provisions are not taken advantage of by a respondent, nevertheless there is no exercise of judicial power involved in the Commission making a determination, the determination being registered and, once registered, the determination being enforced. 

MR GRIFFITH:   Your Honour, it is a question of how one characterises enforcement process.  For example, Justice Brennan in Harris v Calladine referred to the execution processes being part of the judicial power itself.  If that view is taken, Your Honour, then clearly the enforcement of the registered determination as a court order would be regarded as the exercise of judicial power but our submission is there is no constitutional inhibitions, there is no difficulty with respect to the operation of Chapter III because of the necessarily availability of the review process.  Absent the review process, we concede there would be difficulty but it is the availability of review process which, in our submission ‑ ‑ ‑

TOOHEY J:   As I understand it, it is the availability of it, not the taking advantage of it.

MR GRIFFITH:   Well, Your Honour, the choice is with the applicant, or the person affected ‑ ‑ ‑

TOOHEY J:   The respondent.

MR GRIFFITH:   The respondent, Your Honour, whether to take advantage of it.  In our submission, if a person chooses not to take advantage of it, they are in no worse manner affected than a defendant served with a court process who chooses not to put in an appearance or file a defence, et cetera.  And, in that case, there is a default order, we would submit, entered ministerially, by the Registrar ‑ ‑ ‑

DAWSON J:   But it is done by the court.  The determination of the rights and liabilities to parties is a court determination; maybe it is done in default, but it is a court determination.  Here the determination is made by the Commission.

MR GRIFFITH:   Well, with respect, Your Honour, it is not a determination, it is just a ministerial entry ‑ ‑ ‑

DAWSON J:   That seems to me, with all respect Mr Solicitor, humbug.  I mean, what happens is, there is a determination; it has to be registered.  And when it is registered, then it is enforceable.  The procedure for review cannot make any difference; it may never be availed of.

MR GRIFFITH:   We submit that the position is similar in result and not obnoxious to Chapter III.

McHUGH J:   The terms of this legislation are against the whole spirit of Chapter III.  I mean, the device that is contained in this legislation would allow a Parliament to set up tribunals peopled by people who will make favourable decisions for them; to make decisions.  Then the citizen has got to go to the Federal Court with a limited right of review; cannot call fresh evidence and the citizen is bound by it.

MR GRIFFITH:   Your Honour, there is perhaps two issues there in Your Honour’s comment.  The first is this limited right of review, which comes out for Your Honour’s judgment in Harris v Caladine.  Now, Your Honour, it is interesting that in Harris v Caladine, itself, the provision of the Act referred merely to review.  It was only the rules that provided for review de novo, and yet Your Honour’s judgment regarded, as we read it, the de novo facts as at the time of review as being the crucial matter for validity.

Now, we would submit, Your Honour, that the judgment of others than Your Honour in Harris v Caladine makes it clear that a statutory provision which provides merely for a review ‑ the particular provision appears in the judgment of Your Honour Justice Toohey at page 130 ‑ we submit that Harris v Caladine really answers that second problem that Your Honour Justice McHugh had in your judgment.  That is one issue.

The second issue, Your Honour, is the more general remark which you make.  The whole scheme, we say, apart from that, is obnoxious to Chapter III.  Perhaps, at this point, Your Honour, it becomes a matter of assertion.  Our submission is it is not for the reasons that we are in the course of stating.  If at the end of the day a view was taken that this and any other statutory scheme is obnoxious to Chapter III, it must follow that it will be invalid.

TOOHEY J:   You really do have to put your argument fairly and squarely in terms of the availability of judicial review, do you not?

MR GRIFFITH:   Of course, Your Honour.  I was hoping I went straight at that.  Yes, Your Honour, without judicial review we would agree that this sort of situation could not provide for automatic registration, say, equivalent to a foreign arbitral award.

TOOHEY J:   But does it not that follow from that argument that it is competent for the Parliament to establish a range of tribunals to make determinations in a range of matters, all capable of enforcement by registration as orders of the Federal Court, so long as, in each case, provision is made for a review by the Federal Court or some other Chapter III court?

MR GRIFFITH:   Sufficiently effective review. 

TOOHEY J:   Yes.  All right, qualified in that way.

MR GRIFFITH:   We refer to Harris v Calladine as indicating what is involved in it.

TOOHEY J:   But that is built into the argument, is it not?

MR GRIFFITH:   Yes.  Your Honour, could we put on one side the issue of criminal findings, because we submit that might be another issue, the post‑McGuinness-type problem that perhaps is for another day.  But dealing with issues such as this, in our submission, Your Honour, what goes before is no more than an expression of conciliatory opinion and, of course, the necessary link is to say, “That opinion having been expressed it becomes, on proper characterisation, the starting point for complete review,” and we emphasise that the review must have the capacity to be complete and that it becomes a matter of the connection.

Now, the legislation makes it clear that the legislative choice here is to provide for this process of registration as being the originating process.  One could imagine that there could be a different process, that there could be a provision to issue some form of claim at the suit of the Commission which could be subject to a default procedure in the absence of some notice or response from the responding party to have effect.  In our submission, the issue of validity should not be determined by seeing an exact text equivalent to conventional rules of court dealing with default.

McHUGH J:Mr Solicitor, can I ask you some questions in terms of issue estoppel and res judicata?  Assume that there is no review.  The registration then becomes a final and binding determination; a judicial determination binding on the parties towards the issues.  You would say, “True, but it is a determination of the Federal Court.”  But that is really unreal because to look at what issues are being determined in the proceedings, you have got to go to what the Commission has decided.  So it strikes me as unreal to say in that situation that there has been a judicial determination by the Federal Court of the issues, the various issues and ultimate issues in the particular case.

MR GRIFFITH:   We would submit, Your Honour, no more unreal than in the case of a default judgment to say there has been a determination that A owes B money.

McHUGH J:Accept in that particular case a plaint is filed in the court and there has been no issues filed in the particular court, and that is the end of the matter if no defence is put on.  There is judgment given in accordance with that.  But that is not necessarily the case here.  The determination is binding not merely as to the ultimate issues, but to all facts that are involved in that final determination.  In many cases, that may require you to go and look at the reasons of the Commission.

MR GRIFFITH:   Your Honour, the relevant part of the determination which should be registered - and I understand in this case in fact it was not, but the parties are not concerned with that aspect - Your Honour, is merely the final orders, as it were, for, with respect, to apology and payment of money.

McHUGH J:   Supposing that all that was registered in the court was an order that you pay $5000?

MR GRIFFITH:   Yes, Your Honour.

McHUGH J:   Now, that final determination would be binding on the parties in all courts, not only as to the payment of the $5000 but to all the facts that were necessarily indispensable to the making of that order, such as whether or not these words for said, for example.

MR GRIFFITH:   Well, Your Honour, no more than one would have a binding determination in the case where there is a writ issued merely claiming that moneys owing as a debt and there is a default judgment, Your Honour.  The terms of the judgment are no more than there is a debt which should be paid, but there may be antecedent facts, Your Honour, but the Court has no more cognisance of those than it would in respect of a determination of this sort which Your Honour refers to.  We submit, Your Honour, that capacity to analyse difficulties as to the extent to which one could say there is an issue estoppel or res judiciata as to whether there is a contract, et cetera, would equally be open in the case of an ordinary default judgement.,  After all ‑ ‑ ‑

DAWSON J:  But it is the court that makes the judgment with a default judgment, that is the point, if a judgment is made in another place.

MR GRIFFITH:   Well, with respect, it is not, Your Honour, because of the capacity for review.

DAWSON J:   That is what Justice McHugh was putting to you.

MR GRIFFITH:   Yes.

DAWSON J:   What is essential to be determined is not determined by the Court.

MR GRIFFITH:   Your Honour, it is pointed out to me that there is a similar effect under the High Court Rules Order 12 rule 3 dealing with - not that it happens all that often:

Where a writ of summons is endorsed for a debt or liquidated demand only, and the defendant fails.....to appear.....the plaintiff may enter final judgment for a sum not exceeding the sum claimed - - -

DAWSON J:   Precisely.

MR GRIFFITH:   Yes, well, we submit ‑ ‑ ‑

DAWSON J:   The Court makes the judgment but, in those circumstances, the debt is proved.

MR GRIFFITH:   Well, with respect, Your Honour, the Court does nothing at all.  All that happens is one ‑ ‑ ‑

DAWSON J:   Yes, it does, it gives its judgment.

MR GRIFFITH:   One presents oneself to the Registrar,  proves service, makes a search and shows that there is no ‑ ‑ ‑

DAWSON J:   The judgment is a judgment of the Court.

MR GRIFFITH:   Your Honour, we submit that in the case of non-notice here, at the end of the period, one is in precisely the same position.  There is a determination which, because of the operation of these provisions as distinct from an operation of the rules of the Court, in the case of Order 12, there is a binding order of the Court ‑ ‑ ‑

BRENNAN J:   I see the way in which you are putting it, Mr Solicitor, but in practical terms, let it be assumed that the respondent to a complaint says, “Well, I am going to save my substance until I get to court.  I am not going to waste my time on these preliminary proceedings,” and so the proceedings pass against him and an order is made and it is registered.  Then he comes along to the court and says, “I did not appear before the Commissioner, but now I want to have this thing fought out,” and then he has to satisfy the court in the exercise of the court’s discretion that he can produce new evidence.  That does not sound much to me like a full review.

MR GRIFFITH:   Your Honour, one would suppose that in that case the court would enable the full evidence to be ‑ ‑ ‑

BRENNAN J:   One may suppose it.  The other view of it, I suppose, is that the primary place for working these things out is before the Commissioner.

MR GRIFFITH:   But with respect, Your Honour, it is entirely in the hands of the court, and the court can take the view, “This is where Chapter III judicial power is exercised.  You are entitled to put your case.”

McHUGH J:   That was not the object of this Part, was it?  Before these sections were enacted, the determinations were not binding in any way at all.  You had to go to the Federal Court and relitigate the matter.

MR GRIFFITH:   Yes, Your Honour.

McHUGH J:   It is obvious that the whole purpose of these sections is to avoid that question within limits.

MR GRIFFITH:   Your Honour, the court has an unfettered capacity to exercise its Chapter III jurisdiction.  The provision as to leave as to evidence in no way fetters the court.  If, having regard to the circumstances, it chooses not to permit completely new evidence to be given for some, one would suppose, reason, none the less that is the exercise, we submit, of Chapter III jurisdiction.

BRENNAN J:   There is a bit of a difference though, is there not?  I mean, in the case of a writ, you can enter an appearance and say, “As of right, I propose to adduce the evidence to show that I am not liable.  Here, as of the court’s discretion, I may be able to.”

MR GRIFFITH:   On this aspect, Your Honour, we are limited to debate on the restriction on evidence.  That is the point Your Honour is engaging me on.

BRENNAN J:   I am taking it on the basis that you were putting it.

MR GRIFFITH:   Yes, Your Honour, that is a difference.  In our submission, it does not lead to impermissible restriction of the exercise of Chapter III jurisdiction in the court.

BRENNAN J:   It seems to me to be, in practical terms, very much going to that.  Take the ordinary case, one of those thousands of cases that you have instanced already - small business ‑ the owner of the business charged with some act of impropriety towards a female employee.  He has a choice.  He can fight it before the Commissioner and then go on and fight it again before the court; or he can save his substance for one or the other.  If he is of limited means, he has only one choice.

MR GRIFFITH:   That may be the case, but the statistics I gave the Court indicated that it seems to be better to go the other way because there is a great chance that the matter will be resolved either by agreement, conciliation, et cetera.

BRENNAN J:   Statistics rather suggest that it is done on the cheapest possible way, I would have thought.

MR GRIFFITH:   Your Honour, with respect, there is some advantage to have an economy of operation.

BRENNAN J:   That is the argument always in favour of tribunals, Mr Solicitor.

MR GRIFFITH:   Yes, I am aware of Your Honour’s opinion about this.  But we submit at the end of the day, notwithstanding that restriction, the court may exercise its Chapter III jurisdiction to the full as is appropriate, and perhaps better informed by the transcript of Your Honour’s exchange with me, it may well be that persons can be safely advised to reserve their shot, appear before the Federal Court, and you can be confident that there will not be any difficulty in obtaining the leave of the court for the very reasons that Your Honour indicates.

I am not sure whether field work and inquiry would show that that has been the practice to date, but it is appreciated that that could be a legitimate approach, and we would not gainsay for a moment the capacity of a judge to vindicate that as a principle. Your Honours, it is our submission that given the area of difficulty here, what is here provided is a scheme which does nothing to threaten the values of Chapter III of the Constitution, and this probably comes back to Your Honour Justice McHugh’s essential issue apart from the new evidence point I put that on at one stage.

We say, to have a scheme of administrative inquiry, followed by judicial reconsideration, in this context of human relations, is perhaps a modification as was pointed out in discussion with my friend, Mr Corr, of the conventional provision with respect to  a review of taxation assessments.  One did have the capacity, when there were Boards of Review, of determining whether to run one’s points of law before the board, or run them before the court, but often the choice was taken to run them before the board because one could then also run arguments of administrative discretion. 

In the event that one ran before the board, the ordinary position was that one was tied to one’s evidence on the appeal to the court, and the court, not withstanding the fact it was an appeal from, admittedly, a review body, and not from another court, was somewhat constrained in its consideration of the facts in a way that it would not have been, had the primary right of appeal been exercised.

But, in our submission, there is no blurring of the judicial and administrative roles.  The judicial process, we contend, is not commenced until registration.  We say registration is a mere ministerial duty imposed on the Registrar and, after that, provided a party chooses to contest the determination, the process is entirely in the hands of the court.

Now, the issue, of course, is they provided that. In our submission, the fact that this procedure, being an original procedure, we submit, for an appropriate legislative purpose, casts an onus upon a party to indicate whether or not that party desires resort to the full aspects of Chapter III jurisdiction, does not make the provisions obnoxious to Chapter III.  There is no inhibition at all.  We have already dealt with the question of further evidence.  We submit to a full and complete exercise of original jurisdiction in the Federal Court with respect to matters emerging through the process of voluntary consideration and compulsory consideration.  In our submission, it is not obnoxious to Chapter III to regard some threshold step as appropriate for the engaging of the process, as distinct from the original provisions of the Act, which were provided for in section 25ZA as inserted by section 17 of the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act, 1986 ‑ I think Justice McHugh pointed those provisions out to me ‑ where it provided that the Commission or a complainant could institute proceedings in the Federal Court for an order to enforce a determination made pursuant to section 25Y or 25Z, and the Federal Court, if satisfied the respondent had engaged in conduct or committed an act that was unlawful, could make such orders including a declaration of right as the Federal Court thinks fit, and orders made by the Federal Court may include giving effect to a determination of the Commission.

Now, they were the old and superseded provisions which, we submit, on no view, were obnoxious to Chapter III but, in the view of the legislature were unsatisfactory to the extent that there was no continuity of dispute‑settling process.  Now, in our submission, all that is provided here is an element of logical continuity, but not compulsion, because there is the choice of the respondent affected by it, as to whether to settle as any stage, call halt at any stage, or by responding to the notice which must be given upon registration, having the full penalty of Chapter III review just as it was provided under section 25ZA.  If the notice is given, well then, the operation is equivalent to the previous 25ZA.  It is the threshold issue which is the difference.  We submit, it is for appropriate reasons and ones which are not obnoxious to Chapter III.

MASON CJ:   Mr Solicitor, you have been careful to fence off criminal proceedings resulting in a conviction but, apart from that, what is your submission in relation to a similar regime extending to claims for personal injury, claims for damages for breach of contract?

MR GRIFFITH:   Your Honour, it is always difficult to deal with similar schemes, different examples, but once it is similar you would have to look at the particular circumstances.  Is Your Honour postulating the case of a statutory compensation scheme or the case of a civil liability on tort?

MASON CJ:   No, I was contemplating damages for personal injury for breach of common law duties.

MR GRIFFITH:   Claiming against the government or another tortfeasor?

MASON CJ:   Claims against the government, in the first instance.

MR GRIFFITH:   I should indicate, Your Honour, of course, that there is no difficulty about claims against the government because in so far as Commonwealth agency is affected by such determinations, it does not have access to this procedure and, indeed, that happened to some part of the determination made by Mr Castan in this case.  The Commonwealth complies with determinations.

MASON CJ:   You have a specific regime for claims against Commonwealth agencies here?

MR GRIFFITH:   Yes, Your Honour, so that there is no capacity for registration to apply to the court because the Commonwealth is not able to review an adverse ‑ ‑ ‑

MASON CJ:   Yes, but now, take it outside claims against the Commonwealth.

MR GRIFFITH:   So you have a claim against the tortfeasor with the tribunal determining it?

MASON CJ:   Exactly.

MR GRIFFITH:   Your Honour, we would submit that if there was a process whereby the legislative regarded it as appropriate that there should be, we say, the steps of informal conciliation, compulsory conciliation and then if that did not resolve the matter to the satisfaction of both parties, the capacity for a complete judicial review, a mechanism such as this would be within power, in our submission.

McHUGH J:   You have got to go so far as to say      , you could set up a tribunal to determine matters under the Trade Practices Act, under the corporations law.

MR GRIFFITH:   Your Honour, we already have under the Trade Practices Act, of course. 

McHUGH J:   Not to the extent of this, pay damages.

MR GRIFFITH:   That might be a matter of anxious debate by some parties who apply to the tribunal, Your Honour, with respect to Part IV matters but it is a question of what is more important, I suppose, one’s name or one’s money.

McHUGH J:   But section 52 claims under the Trade Practices Act could be determined by the Commissioner for Consumer Affairs, and so on.

MR GRIFFITH:   Your Honour, each scheme would have to be considered but, as a general proposition, we would submit, Your Honour, there is nothing to be frightened of here.  These are not attacking the courts or the independence of the courts.

MASON CJ:   But it brings you back to the discussion in Justice Jacob’s judgment in Quinn, does it not?

MR GRIFFITH:   Yes, Your Honour, but it is a question whether what is done is an interference with the free and complete exercise of judicial power and, in this case, Your Honour, the point of difficulty seems to be limited, as the exchange has been to this point, to the connection point, where one moves from what we refer the compulsory conciliation aspect to the issue of judicial review.  It is our submission, we have made that plainly enough, that the fact that there is an element of default connection, rather than mere transfer as previously was the case, does not alter the characterisation.  That is the issue in this case.  It has been done ‑ ‑ ‑

BRENNAN J:   A wonderful phrase, is it not, “compulsory conciliation”?

MR GRIFFITH:   Your Honour, we have known that since 1904, really, in other jurisdictions.  Your Honours, compulsory conciliation means that you have to conciliate if you go along.  You can choose to leave your bat at home until the next round and that is admitted, but there is a result which - the amended procedures to the Act, and obviously, intentionally, provide for a default consequence.  That is admitted because that is the scheme.  It has been done intentionally.  Our submission is that that does not take you across the line.  Absent that default element, one is left merely with the former revision which was unobjectionable and in the view of Parliament, at least, inappropriate and unworkable.  Of course, if this mechanism, chosen by Parliament, is one which this Court holds as obnoxious, either you return to the unacceptable or you think of another way to get the satisfactory result.

McHUGH J: You appoint people who satisfy section 72 of the Constitution.

MR GRIFFITH:   Yes, Your Honour, but there is more than one way to satisfy.  This is the issue.  The point that I was starting to make when referring to the previous section is that, if we follow the amending process, that section 25ZA, as it was, was repealed and replaced by what is section 3 of the Sex Discrimination and other legislation Amendment Act (1992) with effect from 16 December 1992.  That introduced the current sections, 25ZA to 25ZAC, and it is that form of the Act which is in the Reprint No 5.  The Act was in that form when the Commission made its determination on 22 December 1993, and when the determination was registered on 23 December.

Section 25ZAB was further amended by section 18 of the Law and Justice Legislation Amendment Act 1993 with effect from 18 January 1994, and was in this further amended form when review was sought on 20 January 1994, and the writ was issued on 2 March 1994.

The statement of claim alleges simply that section 25ZAA to 25ZAC are invalid and the question reserved asks whether any and, if so, what parts of those sections are invalid. So, this reference is to the sections in their amended form. The amendments of 25ZAB were procedural, and they took immediate effect, so they apply here. If it is the case that section 25ZAA and 25ZAC are invalid, either because of the restriction on evidence which we have referred to, or for the other reasons covered by our exchange, our submission would be that the amending legislation introducing those sections would be invalid, so that section 25ZA would be restored in its original form, a sort of a doctrine of dependent relevant revocation.

Could I refer Your Honours briefly to Attorney‑General (NSW) Ex Rel McKellar v The Commonwealth (1977) 139 CLR 560, and Air Caledonie v The Commonwealth (1988) 165 CLR 472. The judgment in McKellar is that of Justice Stephen.

Whilst we are reluctant to get on issues of severance or consequence, our submission would be that there would not be a void but there would be a restoration of the previous position.

BRENNAN J:   Where do we find ZA in its original form?

MR GRIFFITH:   You find it in section 17 of the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 or in a reprint, I think before, Reprint No 5.

BRENNAN J:   You find it in Reprint 4.

MR GRIFFITH:   Should be in Reprint 4, yes, although I have not checked that, but it was introduced in 1986, so the text can be found.  I am a bit anxious Your Honour is showing interest in this point of the argument.

Our submission is that the giving of binding force to this determination only occurs as a result of judicial process where a determination is contested or is an incidental part of the judicial process where it is not contested.

TOOHEY J:   That is the argument that causes me some difficulty, as does your analogy with default judgments, because in a default judgment the jurisdiction of a court has been invoked and the entry of a default judgment is incidental to the judicial process established in relation to that court.  But putting to one side for a moment your power of review argument, the registration of the determination gives effect to a non-judicial exercise of power; which really takes you back, I suppose, to your primary proposition that all this is saved by virtue of the existence of a power of review.

MR GRIFFITH:   Yes, Your Honour, it is a complete package.

TOOHEY J:   And if it is not saved by that then it is a pack of cards.

MR GRIFFITH:   Your Honour, it is clear enough.  I mean, one does not go to find in a second reading speech that - there must have been anxious consideration of the previous provision and certainly very deep appreciation of the Chapter III issues.  One does not have to be a constitutional lawyer to appreciate them but if one is a constitutional lawyer, one appreciates them very much.

We submit, Your Honour, that it is clear what is intended here, is to provide an appropriate mechanism which in no way derogates from the complete and impartial exercise of Chapter III jurisdiction.  But Your Honour is right in identifying the issue of connection or, as Your Honour puts it, the issue of difficulty.  That is the difference affected by this amendment compared with the legislation as it was before.  It is put on the basis, Your Honour, squarely, as being a reasonable adaption in result which is a rough equivalent and in no way derogates from the exercise of Chapter III power in the default judgment.

Now, that obviously is a point where minds might differ. Your Honour Justice Dawson has indicated your views about that. Our submission is, for the reasons we have stated, that there is no interference or corruption with the exercise of judicial power by providing, in effect, for a default mechanism. It is complete judicial review and we say, effectively, by way or original process, by judicial process, where the determination is contested. Where it is not contested, we say that it is within principle of the discharge of Chapter III within the context of the Constitution. A procedure such as this should be regarded as appropriately incidental to the judicial process itself and not beyond power. We say the independence impartiality of the judiciary is not affected and the rights of individuals are not placed exclusively in the hands of the executive.

Although my learned friend, Mr Basten, was not granted leave to address the Court, we are in the somewhat curious position of having had some submissions in response to his written submissions.  We do not intend to address his written submissions, but may we make some short remarks with respect to the United States and Canadian cases.  We had a somewhat longer inquiry in Harris v Calladine and the Court may recollect that we came to the Court and said really there was a nil return out of that.

It is an interesting inquiry but not all that much to assist the Court with respect to the Chapter III issues.  But, as the Court knows, the courts in both the United States and Canada have taken a different approach in relation to questions of judicial power.  In the United States it is accepted that judicial power can be conferred on an administrative tribunal, provided that the conferral does not impermissibly threaten the integrity of the judicial branch.  May we refer the Court to Commodity Futures Trading Commission v Schor, (1985) 478 US 833, particularly at page 851 where the Supreme Court adopted a balancing approach on that issue.

Mr Basten has dealt with the American cases somewhat at length, but I will not refer to them in view of the course which has been taken on that intervention.  In Canada a similar approach has been followed.  The Supreme Court has said that it is open for judicial power to be conferred on a non‑judicial tribunal, a non‑section 96 court, if the institutional setting so allows.  In considering that question, the Supreme Court takes into account a variety of factors including the extent to which the power is necessarily incidental to the achievement of a broader policy goal of the legislature.

May I give the Court three citations which are not on our list of authorities.  The first is Re Residential Tenancies Act, (1981) 123 DLR 3d 554. The second is Sobeys Stores Ltd v Yeomans, (1989) 57 DLR 4th 1; and the third is Chrysler Canada v Competition Tribunal, (1992) 92 DLR 4th 609. Of course, these doctrines are not transferable here in themselves, but the judgments referred to and the principles underlying them do highlight what we refer to as relevant policy considerations. Of course the Australian doctrine of separation of powers has its roots in the United States model but, in our submission, there is a margin of appreciation here.

It is one where, obviously conscious of the requirements of Chapter III, Parliament has set about to provide a mechanism which, subject to the views of this Court, Parliament regarded as appropriate, and we say appropriate having full regard and acceptance of the position with respect to Chapter III of the Constitution. In that context, it is our submission that the variation in operation by creating what in essence is a default requirement rather than a complete separation of the process of, as we have referred to it, conciliation in the Commission process and judicial enforcement is a provision of connection which does not contravene Chapter III.

Some of Your Honours have put to me examples of other and possible extensions.  In principle we have answered those, we hope relevantly.  But, in our submission, the inquiry here is not to be one to be answered by an extreme example of a situation, say, the obvious extreme one dealing with a finding of contravention to criminal law, declarations as to guilty of criminal offences.

The inquiry here is by reference to the circumstances here and, in our submission, in essence there is not just a convenient result because, of course, Chapter III cannot be subsumed to convenience; but, of course, the problems with Chapter III to some extent are disposed of by reference to aspects of characterisation which can be infected by the repository of particular power.  So, in our submission, one is not dealing with absolutes here; one is dealing with what is appropriate having regard often to functions which take their colour from their repository, and I need not remind the Court of the various decisions of this Court where one has a very close interrelationship between activities which might be regarded as administrative and might be regarded as judicial being exercised by judicial bodies and exercised by non‑judicial bodies.

In this case there has been, we submit, an appropriate expression of parliamentary intention to provide for the transition to the Chapter III process in respect to a subject‑matter which pre‑eminently is a matter which Parliament, by its laws, has provided should as a first, and one would hope in most cases complete mechanism resolution, proceed down the line of conciliation and administrative inquiry.

Parliament has indicated that it intends there to be a capacity for Chapter III sanction and, in our submission, the method provided in the amended provisions are in themselves fully consistent with the requirements which this Court in its judgment in Harris v Caladine which, of course, is an entirely different circumstance but vindicating the constitutional obligations, may accept as not constituting an unacceptable derogation to the independence of capacity with respect to judicial power.  If the Court pleases.

DEANE J: Mr Solicitor, could I ask you something that may not have much to do with the substance of what is before us but, if you go to section 25ZAA(1), it seems to be based on an assumption that there will only be one respondent to a complaint.

MR GRIFFITH:   Which is not the case here.

DEANE J: If you look at the stated case here on paragraph 5, the determination as to (1) and (2) was against the plaintiff, and as to (3), (4) and (5) against ATSIC which I presume is a Commonwealth agency for the purposes of the Privacy Act, which I have not looked at ‑ ‑ ‑

MR GRIFFITH:   There was a finding and one picks up from the determination in paragraph 5 that it apologise and pay a sum of money, and I understand that has been complied with.

DEANE J:   Then we have the determinations case says was forwarded and registered which presumably is 1, 2, 3, 4 and 5.  That raises the query, “Can it be registered?”, and if it can be, does the fact that there is a non‑agency respondent mean that having been registered, the Commonwealth would have the right of judicial review or should you split up the determination and register 1 and 2 but not 3,4 and 5?

MR GRIFFITH:   Your Honour, in this morning’s case, at one point, I made a pertinent question and then offered to withdraw it, and that is always something that Your Honour is minded to do in asking me a question - please do.  Your Honour, can I explain that after the case was stated the decision of Justice Neaves in Grey v Bell, 122 ALR at page 604 - this involved the same determination.  Grey was the managing director of ATSIC and he sought to challenge and it was held by Justice Neaves that he could not because he was not a party, the finding was against ATSIC and not him as it said, but Justice Neaves made the point that the determination which had been registered was all the signed 59 pages of Ron Castan’s determination with the discussion of the facts.  Now, Justice Neaves held, and it seems, Your Honour, correctly, that that is not what should have been registered.  What should have been registered is a separate document being just the determination. 

Now, Your Honour, although the parties were aware - but I have not spoken to Mr Corr myself but there was discussion between solicitors - we took the view - and perhaps Your Honour’s question makes me think it was perhaps not strictly correct - that in the circumstances, a case already having been stated and the issue having been identified of validity, we certainly were not taking a point that arose out of Justice Neave’s judgmen, “It it looks like that there was not a registration of the correct determination itself.”  Now, Your Honour, when one looks at this section, it could well be that you are right:  not only should there have been a separate document executed by Mr Castan and registered to be the determination itself, but there probably should have been two determinations, one for ATSIC and one for ‑ ‑ ‑

DEANE J:   Well, 25ZD seems to adopt the same approach, that for the purposes of registration or enforcement without registration, you somehow have to approach it as if there is a “the respondent”.

MR GRIFFITH: Yes, Your Honour. I mean, the Commonwealth just complies, Your Honour, so there is not an issue of enforcement, but in respect of the bifurcation between an individual here, Brandy, and ATSIC, it may well be that section 25ZAA dictates that there should be two separate determinations and only the one dealing with Brandy alone should be registered.

DEANE J:   Because it may be of peripheral relevance.  I mean if there is one determination it may be relevant that it is enforceable against the Commonwealth without there being any availability of judicial review.  I do not think this helps your argument; I am not sure it is against it.  And it may be that one really needs to see whether you can, where somehow you have got two respondents, sever the determination.

MR GRIFFITH:   Your Honour, it might be that you have to identify what the determination is.

DEANE J:   And if I might just add to the troubles I have been having and that is looking at section 25F there seems to me to be a very real query as to whether Mr Castan had power to add the plaintiff as a respondent and then proceed to make an order in damages, or for compensation against him.

MR GRIFFITH:   Yes.  Your Honour, I am not sure what Mr Corr’s views were, but we took it - - -

DEANE J:   That last one is possibly one that we should close our eyes to, but the fact is it is there.

MR GRIFFITH:   Your Honour, the Commonwealth was anxious to have this issue of validity identified and determined, and possibly we should have done more to reconstitute the determinations in correct form.  But, Your Honour, as to whether it helps or detracts from our argument the view taken, as I understand it, by the Commonwealth, Your Honour is that it just acts as an appropriate good citizen.  It does not require any sanction or capacity for judicial review; it will comply with the determination made by a Commonwealth agency, and that is the structure of the provisions which apply to it.

Now, it may well be, Your Honour, that when there is an inquiry involving both a Commonwealth agency and an individual, the determination itself should be made separately for each and the determination of the individual be the only matter to be registered under section 25ZAA. That would seem to answer the construction problems.

Now, Your Honour, we were content to treat that which was registered as being in compliance with 25ZAA.  I suppose if the Court required the “form to meet” function as it were, that could be done.  But we take no point adverse to the capacity of Mr Corr to attack the validity on the basis, Your Honour, that there is a determination limited to his client.

DEANE J:   So I think this is the effect of what you are saying, you would be agreeable to the question whether it should all have been registered being put to one side on the basis that the case is to be dealt with as if only one and two were registered.

MR GRIFFITH:   Yes, Your Honour, indeed.  That, in essence, has been our assumption but Your Honour has taken this inquiry a step further than we did, which really confirms the view that it is best to proceed on that basis.  So we are content, Your Honour for three, four and five to be ignored for the purposes       of the - - -

MASON CJ:   Mr Solicitor, are you going to put any argument to the Court on separability?

MR GRIFFITH:   Your Honour, the argument in essence we made is if there is any difficulty, firstly on the question of proof, Your Honour, there is no difficulty about severing the restriction on evidence if that was the difficulty.  If there was a difficulty with respect to the registration process, Your Honour, our submission is that the old section would revive.  So that it would not be a case of striking out the three new sections and leaving a void with no enforcement, but one would return to the previous section as in Print No 4 of the Act, and no doubt Parliament would try again.

DEANE J:  I did not quite follow.  What happened under the previous section if there was a D order for compensation, or whatever the right phraseology is?

MR GRIFFITH:   One just started again before the court.  There was a completely new proceeding which could be brought by the Commission or by the applicant and the court had a power to provide for the same order, but it could do anything it liked, so it was not constrained at all. 

DEANE J:   So there would be a declaration that the respondent should pay damages by way of compensation that was not binding on anyone.

MR GRIFFITH:   It was not binding on anyone from the Commission, Your Honour, and when one went to the court it was a complete fresh field - start again.  But the court would know of the previous order and it could make the same order again as an original order of the court, not merely as a concerned one.  It is a very simple provision and one which was rejected as unsatisfactory.  If the Court pleases.

GAUDRON J:   Mr Solicitor, I am having difficulties with the inability of a federal agency to apply for review.  First of all, where does that come from?  Obviously that is something obvious that I have overlooked.

MR GRIFFITH: Section 25ZAA does not apply where the respondent is a Commonwealth agency. That says so.

GAUDRON J:   Thank you.  Then why is not judicial power with respect to Commonwealth agencies, full stop, inappropriately vested in the Commission?

MR GRIFFITH:   It is like the Commonwealth asking a Commonwealth department to pay income tax.  It is all notional.  This is - - -

GAUDRON J:   I can understand why you say that in one sense, but if there is none the less a binding determination against the Commonwealth or its agencies ‑ ‑ ‑

MR GRIFFITH:   Your Honour, it is not binding, it is a policy of the Commonwealth to comply with the directions of the Commission it has set up to inquire and to conciliate in these matters.

GAUDRON J:   Yes, I can understand that, and if it were done simply by policy directive, that might be one thing, but what I am asking is why is it not, when there is no review in respect of Commonwealth agencies, no review procedure at all, why does not the Act, as formulated, vest judicial power in the Commission?

MR GRIFFITH:   Because of section 25Z(2), Your Honour. 

GAUDRON J:   Yes, I understand that too.  But your submission to this Court is that it would clearly all fail or it must clearly all fail if the review procedures are inadequate.  If there are no review procedures against the Commonwealth at all or the Commonwealth agencies, why does it not ‑ ‑ ‑

MR GRIFFITH:   Because there is no registration against the Commonwealth, Your Honour.

TOOHEY J:   No, there is no registration but there is a provision in section 25ZE that the agency must comply with the determination, is that not right?

MR GRIFFITH:   Yes, Your Honour.  With respect, that gives effect to the policy that the Commonwealth does comply.  It is not a question of judicial power against the Commonwealth.  This is a Commonwealth agency.  It says as a matter of policy ‑ and the section reflects that, in our submission ‑ that the Commonwealth will comply with these matters, even though they do not bind it because of the effect of subsection (2).

TOOHEY J:   But I took you to that provision because of your reference to section 25Z(2) which you offered in answer to Justice Gaudron’s question.  But the riposte to that really lies in section 25ZE and section 25ZG which makes damages awarded against the Commonwealth agency recoverable as a debt, does it not?

MR GRIFFITH:   But that is a policy matter, Your Honour.  The Commonwealth chooses to be bound.

McHUGH J:   As a matter of law, not policy.

MR GRIFFITH:   As a matter of law it has enacted a policy saying, although it is only done by the Commission in this way, the Commonwealth will comply.  It is not going to have a capacity for judicial review.  With respect, the Commonwealth may exclude itself and its agencies.

DEANE J:   You are merging the executive with the Parliament a little bit as you put it that way though, are you not?

MR GRIFFITH:   I am sorry, Your Honour, that is unintended.  Your Honour, one can see the parliamentary policy perhaps reflecting an executive decision is that Commonwealth agencies should comply and honour these determinations and should not have a capacity to challenge by way of Chapter III proceedings findings adverse to it.

BRENNAN J:   What you are saying is:  Parliament has imposed upon Commonwealth agencies a statutory duty to comply?

MR GRIFFITH:   Yes, Your Honour, and that is not something that calls for judicial review, with respect.  We would refer to that as really confirming the nature of the conciliation process rather than derogating from

the, we say, universal capacity of Chapter III review in other cases.  If the Court pleases.

MASON CJ:   Thank you.  Mr Higgins.

MR HIGGINS:   Your Honours, I would respectfully adopt the submissions of the learned Solicitor‑General.  I do not seek to make any additional submissions.

MR GRIFFITH:   Your Honours, may I raise one question with Your Honour Justice Toohey, dealing with what happens if there is a dismissal under section 25ZA.  We would submit that if there is no determination, then there is no registration.  So that one does not register a dismissal, in our submission.  We refer to 25Z(1)(a).  An unhappy complainant can then seek review under the Administrative Decisions (Judicial Review) Act.

TOOHEY J:   I understand that is an answer in that case.  It does not dispose of a declaration made under subparagraph (vii) of paragraph (b), does it?

MR GRIFFITH:   Well, Your Honour, may we reflect on that and deliver a submission to the Court if we have an answer to that?

MASON CJ:   Yes.

MR GRIFFITH:   If the Court pleases.

MASON CJ:   Yes, Mr Corr.

NEWSPEAKER

MR CORR:   Yes, Your Honour.  Just some short responses to matters raised by the Solicitor.  By looking back at what was the situation before these amendments, namely that there was section 25Z, which was not binding on anybody, we would submit that that probably is acceptable and is not a breach of the separation of powers, unless, of course, it is taken that just the making of a determination does not of itself have some effect on people.  It may well be it would put someone in the position of being held up to public approbrium that such a finding be found.  In which case, it might be that it does, in fact, have some effect or penalty, just the actual finding.  In general we would tend to submit that that is probably not the case.

However, if you look at the particular amendments which have been made; a determination is made, then it must be registered, then the Commission, after the determination is made, must register it.  The Registrar must accept it.  That determination then has the effect as an order of the Federal Court.  Those together mean that there has been an exercise of judicial power.  And it is clearly the intention that the determination will be an exercise of judicial power, because of those particular steps; that there is no discretion there anywhere along the way, that has that effect.        Also, the question of the effect of a review mechanism; as to whether that, in some way, validates the procedure.

It should be noted that in Harris v Caladine, that even though there was, I believe, a full de novo review in that particular case, it was still held that the Registrar was exercising judicial power.  So, just the mere existence of a review mechanism does not necessarily mean that judicial power was not originally exercised.

In relation to default judgments, default judgments are restricted to liquidated damages.  That is there are unliquidated damages, or if there are equitable orders which are sought, then judges of courts must be involved because of the exercise of the judicial discretion which is exercised in awarding those particular matters. 

Again, the question arises, if there is not a review, has there been an exercise of judicial power.  We would submit that there is; that it is not a default judgment and it is not in any way analogous to that.  There has been the exercise of judicial power and it has not been by a court.

My learned friend made some reference to foreign judgments, and so on ‑ the registration of foreign judgments.  It may well be that he has now called into question the validity of that particular action, but I do not think it, in any way, validates the provisions that he is trying to support here.  He also raised some statistical questions.  I make the point that the quantity of the complaints and how they are dealt with is no indication whatsoever of the validity of a particular piece of legislation; nor is the length of time that may have been enforced.  One only has to look

at Boilermakers for that ‑ I think there was 40 years before that was termed invalid.

Over all, those are the submissions on behalf of the plaintiff, Your Honour.

MASON CJ:   Now, Mr Corr, you and the Solicitor, and for that matter, Mr Higgins, had better give attention to the form of this stated case.  You might consider presenting the question in the form of: “Are any of the provisions, and if so which provisions, of the relevant part of the Act invalid?”  And you might have to take into account the 1986 amending Act as well.

But, what I suggest you do is discuss the matter among yourselves and then, when you are in a position to formulate some amendment that has agreement, then perhaps Justice Gaudron might be approached with a view to amending the stated case.

MR CORR:   If it please the Court.

MASON CJ:   But I think that ought to be done with some speed.

MR CORR:   Yes, I would agree with that, Your Honour.  It shall be done expeditiously.

MASON CJ:   Yes.

MR CORR:  Yes, if it please the Court.

MASON CJ:   In those circumstances, the Court will consider its decision in this matter.

AT 4.37 PM THE MATTER WAS ADJOURNED SINE DIE