Brandy v Human Rights and Equal Opportunity Commission

The High Court of Australia heard an appeal in *Brandy v Human Rights and Equal Opportunity Commission*. The applicant, Mr. Brandy, had lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC) alleging racial discrimination. HREOC investigated the complaint and made a recommendation that the applicant be paid compensation. The applicant sought to have this recommendation registered as a judgment of the Federal Court of Australia under s 11 of the *Racial Discrimination Act 1975* (Cth).

The central legal issue before the High Court was whether s 11 of the *Racial Discrimination Act 1975* (Cth) was constitutionally valid. Specifically, the Court had to determine if the power conferred by s 11, which allowed for the registration of HREOC recommendations as judgments of the Federal Court, constituted an exercise of judicial power by the executive branch (HREOC) contrary to Chapter III of the Australian Constitution.

The High Court, by majority, held that s 11 of the *Racial Discrimination Act 1975* (Cth) was invalid. The Court reasoned that the power to register a recommendation as a judgment, without further judicial consideration, amounted to an exercise of judicial power by HREOC, an administrative body. This was found to be incompatible with the separation of powers doctrine enshrined in Chapter III of the Constitution, which vests the judicial power of the Commonwealth exclusively in the courts. The Court distinguished this power from the judicial function of a court, which involves the determination of rights and obligations based on law and evidence.

Consequently, the High Court allowed the appeal and set aside the orders of the Federal Court. The applicant's application to have the HREOC recommendation registered as a judgment was dismissed.