Brandy V HREOC

The Constitution is divided into separate chapters dealing separately with the parliament, executive and the Judicature. The “pure” doctrine of separation of powers prescribes that the functions of the three arms of government be clearly and institutionally separated . It is important to note that Australia does not have a pure separation of power because we inherited the British Westminster tradition. For example, Chapter I legislative parliament and Chapter II executive are seemingly two independent arms of Constitution, but in practice, this distinction between the executive and legislature is blurred, such that the Commonwealth Ministers are simultaneously members of the executive and the legislature, as it is required by s 6

The High Court determines the Constitutional issue as the judges seeks to define “judicial power”. Though the nature and scope of federal judicial power was not exhaustively defined, but High Court concluded only those courts under Chapter III of the Constitution can exercise federal judicial power, however HREOC is not a Chapter III court, so it could not exercise judicial power of Commonwealth. More specifically, High Court held that ss 25ZAA, 25ZAB and 25ZAC of the Racial Discriminate Act 1975 (CTH) governing the registration and enforcement of HREOC determinations were invalid because those provisions had the effect of making HREOC determination binding and conclusive “as if it was an order made by the Federal Court”4. A judicial order made by the federal Court takes effect as an exercise of Commonwealth Judicial power, but a determination by the HREOC is neither made nor registered in the exercise of judicial power. On this basis, the High Court held the relevant provisions of the amended Racial Discrimination Act 1975 (CTH) invalid, as it contravenes Chapter III of the Constitution.

The concept of parliamentary supremacy and sovereignty is significant in the decision of High Court. It is mentioned briefly above that Australia inherited the Westminster tradition from United Kingdom, as under British Constitutional law, the Parliament has absolute sovereignty and therefore has the power to make or unmake any law. Though this idea of absolute power is less obvious in Australia as we have doctrine of separation of power, but the Brandy case surely highlighted the fact that separation of power in Australian Constitution is not clear and the parliamentary supremacy has the absolute power over other branches of government. Therefore, the High Court relied upon arguments of separation of judicial power in arriving at conclusion, rather than articulating principles relating to those individual rights as justifying those decisions.

In conclusion, in the case of Brandy V HREOC, from a constitutional law perspective, the decision made by the High Court consolidated the separation of power and th

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