rbr 4/00 alterations to the australian human rights and ... · alterations to the australian human...

RBR 4/00 Alterations to the Australian HumanRights and Equal OpportunityCommission

The establishment of the Human Rights Commission in 1981gave effect to Australia’s international human rights obligations.The Commission has responsibility for the oversight ofCommonwealth discrimination legislation provided for underfour separate Acts. The ability of the Commission to enforceits findings was called into question in the 1994 case ofBrandy v Australian Human Rights and Equal OpportunityCommission. In that case the High Court determined that theCommission could not constitutionally exercise judicial powerwhilst exercising an executive power and performing anadministrative function. Such a situation offended against thedoctrine of the separation of powers.

Wayne Jarred

Research Brief 4/00September 2000

© Queensland Parliamentary Library, 2000

ISSN 1443-7902ISBN 0 7242 7895 8

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968,reproduction by whatever means is prohibited, other than by Members of the QueenslandParliament in the course of their official duties, without the prior written permission of theParliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to:

Director, Research Publications & ResourcesQueensland Parliamentary LibraryParliament HouseGeorge Street, Brisbane QLD 4000Director: Ms Mary Seefried. (Tel: 07 3406 7116)

Information about Research Publications can be found on the Internet at:

Http://www.parliament.qld.gov.au/parlib/research/index.htm

Http://www.parliament.qld.gov.au/parlib/research/index.htm

CONTENTS

1 INTRODUCTION ............................................................................................ 1

2 THE NATURE OF HUMAN RIGHTS .......................................................... 2

3 INTERNATIONAL RECOGNITION OF HUMAN RIGHTS.................... 4

3.1 INTERNATIONAL COMPARISONS .................................................................... 5

3.1.1 Canadian Charter of Rights and Freedoms............................................ 5

3.1.2 Bill of Rights Act 1990 (New Zealand) ................................................ 6

3.2 JUDICIAL ENFORCEMENT OF HUMAN RIGHTS ............................................... 7

4 OVERVIEW OF THE HUMAN RIGHTS COMMISSION ACT 1981(COMMONWEALTH).................................................................................... 7

5 CURRENT POWERS AND METHODS USED FOR SETTLINGCOMPLAINTS................................................................................................. 9

6 CONCERNS WITH THE LEGALITY OF THE HUMAN RIGHTS ANDEQUAL OPPORTUNITY COMMISSION’S DETERMINATIONS....... 10

7 EVIDENCE TO THE SENATE STANDING COMMITTEE AND ITSRECOMMENDATIONS............................................................................... 11

8 THE HIGH COURT’S DECISION IN BRANDY V HUMAN RIGHTSAND EQUAL OPPORTUNITY COMMISSION ....................................... 13

8.1 RAMIFICATIONS OF THE HIGH COURT DECISION ........................................ 14

9 HUMAN RIGHTS LEGISLATION AMENDMENT BILL (N0 2) 1998.. 14

10 HUMAN RIGHTS LEGISLATION AMENDMENT BILL (N0 2) 1999.. 15

11 CONCLUSION ............................................................................................... 16

BIBLIOGRAPHY ................................................................................................. 16

Alterations to the Australian Human Rights and Equal Opportunity Commission Page 1

1 INTRODUCTION

The Universal Declaration of Human Rights was proclaimed in 1948. TheAustralian Foreign Minister was, at that time, the presiding President of the UnitedNations General Assembly. This international instrument declares a number ofhuman rights issues some of which are:

• All human beings are born free and equal in dignity and rights;• All human beings have the right of life, liberty and security of person;• All human beings have a right of recognition before the law;• All human beings have a right to equal protection without discrimination

before the law;• No one is to be subject to arbitrary arrest, detention or exile;• Human beings of working age have a right to work, a right to free choice of

employment, a right to just and favourable conditions of work, and a rightto equal pay for equal work; and

• Human beings of working age have a right to form and join trade unions forthe protection of their interests.

Australia is currently a member of the United Nations Commission on HumanRights and has co-sponsored all resolutions of that body as well as the UnitedNations General Assembly on human rights issues.

The United Nations High Commissioner for Human Rights is an officer of theCommission on Human Rights and has the responsibility of overseeing the work ofmember nations in the development of national institutions that are independentand effective in the enforcement of human rights.1

Since the progressive ratification by Australia of a number of internationalconventions there has been an emphasis on the part of the courts to protectindividual rights and freedoms. This has been addressed by a number of quasi-judicial tribunals and commissions that have been established to deal with issues ofdiscrimination in accordance with Australia’s international obligations.2

1 Australia. Department of Foreign Affairs and Trade, Australia’s Report 1998 Five-Year Review

of the 1993 Vienna Declaration and Program of Action, February 1999.http://www.dfat.gov.au/hr/reports/vienna_review_98.html Downloaded 17 January 2000.

2 Kristen Walker, ‘Who’s the Boss? The Judiciary, the Executive, the Parliament and theProtection of Human Rights’, Western Australian Law Review, v 25, December 1995, p 239.

http://www.dfat.gov.au/hr/reports/vienna_review_98.html

Alterations to the Australian Human Rights and Equal Opportunity Commission

2 THE NATURE OF HUMAN RIGHTS

The High Court case of Gerhardy v Brown3 is held as authority for the propositionthat human rights are fundamental rights that are inherent to every individual on thebasis of humanity. In the case of Mabo v Queensland4 it was held that therecognition of human rights was determined by the concepts of human dignity andessential equality and that human rights and freedoms were recognised at law.

Broadly speaking human rights are rights that adhere to humans simply becausethey are human. The Charter of the United Nations obliges member nations torespect and observe human rights and fundamental freedoms but what these rightsand freedoms are is not specifically spelt out in that document. Whilst a generaldefinition of what human rights are is helpful, it must be examined within thecontext within which it is used.5

English common law is a protector of some human rights such as privacy and self-incrimination, a right to legal representation and the right to a fair trial. The rightsof prisoners are protected as are the rights of assembly, association and expression.6

However, common law is not an absolute protector as it can be overridden at anytime by legislation and can at times be denied by the courts as was the case of thecommon law right of privacy in Victoria Park Racing and Recreational GroundsClub.7

A critical observation of human rights suggests that they are determined by socio-cultural boundaries within a particular society and are thus inherently political.8

From an historical perspective the notion of human rights is a derivative ofEuropean inheritance and even then the capacity of groups and individuals to claimrights that possessed value under domestic and international law did not exist priorto the 17th century.9

The recognition of human rights as a European construct does not indicate thatother societies do not respect human values through other institutional settings suchas philosophy and religion. Whilst individuals in other traditional societies may

3 Gerhardy v Brown (1985) 57 ALR 472.4 Mabo v Queensland (No 1) (1988) 83 ALR 14.5 Nick O’Neill & Robin Handley, Retreat from Injustice: Human Rights in Australian Law,

Federation Press, Sydney, 1994, p 22.6 Kirby, J, ‘Human Rights in Australia: Common Law Protections’, Wiser, No 2, 1997, p 5.7 Victoria Park Racing and Recreational Grounds Club Co Ltd v Taylor, (1937) 58 CLR 479 at

496.8 Sarah Pritchard, ‘The Jurisprudence of Human Rights: Some Critical Thought and

Developments in Practice’, Australian Journal of Human Rights, 2(1), December 1995, p 5.9 Pritchard, p 9.


lack rights that are valued and protected in Western societies they may not lackprotection of other rights that are supported through community and security.10

There is a perception that the Westminster system of government affordssafeguards to human rights. However, this is not entirely correct. The Westminstersystem of parliamentary democracy is but one factor. The acknowledgment of therule of law and the independence of the judiciary are two important elements thatcombine with the principle of parliamentary democracy to extend a degree ofprotection for human rights.

The principle of the rule of law dates back to the 19th century. The principleembodied the concept that citizens are not subject to the arbitrary authority ofgovernment, that every person is subject to the same laws and equal before them,and that personal freedoms are protected by law.11

The value of the Australian Constitution in providing protecting for human rightshas also been acknowledged.12 Section 51 of the Constitution provides for justacquisition of private property. This is not provided for in any of the Stateconstitutions. Section 80 of the Constitution provides for trial by jury. Section116 provides for the freedom of religion whilst s 117 provides for freedom fromdiscrimination on grounds of State residence.

Whilst protection of human rights is mostly absent from the various Stateconstitutions, s 46 of the Tasmanian Constitution provides for the freedoms ofconscience and religion.13

However, whilst it is argued by some that the Australian Constitution does provideprotection for some human rights there are others who argue that human rights canonly be properly protected by a Bill of Rights.14 Generally, the enactment of a Billof Rights is intended to affect the legal relationship between the citizen and theState.15 The Constitutional Commission recommended that any Bill of Rightsenacted by the Commonwealth should only contain rights that could be judicially

10 Pritchard, p 9.11 A Concise Dictionary of Law, Oxford University Press 1983, p 324.12 Kirby, p 8.13 Gareth Griffith, ‘The Protection of Human Rights: A Review of Selected Jurisdictions’, Briefing

Paper No 3/2000, New South Wales Parliamentary Library Research Service, p 6.14 Brian Burdekin, ‘Human Rights in Australia: The Need for a Bill of Rights’, Wiser, No 2, 1997,

p 11.15 Griffith, p 7.


enforced and not contain social rights such as ‘a right to work’ or ‘a right toeducation’.16

In 1993, the Electoral and Administrative Review Commission recommended theenactment of a Bill of Rights for Queensland with the option that such a Bill besubmitted to a referendum for inclusion in the Queensland Constitution.17 TheParliamentary Legal, Constitutional and Administrative Review Committeeexamined the question of a Bill of Rights for Queensland looking at EARC’s earlierrecommendation. The Parliamentary Committee recommended to the Parliamentthat a Bill of Rights not be enacted in any form.18 The general argument that theCommittee put forward to the Parliament was that a Bill of Rights would restrictthe power of the legislature and increase power for the judiciary.19

3 INTERNATIONAL RECOGNITION OF HUMAN RIGHTS

Both the Charter of the United Nations and the Universal Declaration of HumanRights are based on the recognition that at least some human rights are universallyapplicable. From an international perspective it has been argued that internationalhuman right norms can be protected within a context of social diversity and culturalspecificity. An example of this argument can be seen in a speech by the formerDeputy Prime Minister of Malaysia:

It is true that Asians place greater emphasis on order and societal stability. But itis certainly wrong to regard society as a kind of false god upon whose altar theindividual must constantly be sacrificed. No Asian tradition can be cited to supportthe proposition that in Asia the individual must melt into the faceless community.20

The basis of international human rights law is treaties. Under international humanright treaties that have been signed, Australia has accepted the establishment ofindividual complaint mechanisms.

16 Australia. Constitutional Commission, Final Report of the Constitutional Commission, v 1,

1988, p 479.17 Queensland. Electoral and Administrative Review Commission, Review of Preservation and

Enhancement of Individuals’ Rights and Freedoms, August 1993, p 381.18 Queensland. Legislative Assembly. Legal, Constitutional and Administrative Review

Committee, The Preservation and Enhancement of Individuals’ Rights and Freedoms inQueensland: Should Queensland Adopt a Bill of Rights?, Report No 12, November 1998,p viii.

19 Queensland. Legislative Assembly, Legal, Constitutional and Administrative ReviewCommittee, p 54.

20 Anwar Ibrahim, ‘Media and Society in Asia’, Keynote Speech Asian Press Forum, Hong Kong,2 December 1994, cited in Pritchard, p 11.


A concern with human rights can be traced back to the Universal Declaration ofHuman Rights adopted on 10 December 1948. Whilst not binding, the majorelements contained in the Declaration found their expression in the Convention onthe Rights of the Child21 and the International Covenant on Civil and PoliticalRights, and the International Covenant on Economic, Social and Cultural Rights.22

These have been declared international instruments under s47 Human Rights andEqual Opportunity Commission Act 1986 (Cth).

3.1 INTERNATIONAL COMPARISONS

Australia lacks a Bill of Rights from which the jurisprudence of human rights maydevelop. The atmosphere at the time of the framing of the Constitution was thathuman rights protection would be well provided for by way of a parliamentarydemocracy and the doctrine of the rule of law. New Zealand, Canada and theUnited States are three countries that do have a Bill of Rights containing provisionsprotecting human rights. It has been argued that Australia has stood outside of thejurisprudence of human rights that has been developing since the end of World WarII and that international statements of human rights have been enacted as part ofdomestic law in only a very small number of cases.23

The positive side of having a Bill of Rights is that it represents the culmination of adebate over human rights and in practical terms are seen to represent an advanceover slow and grudging parliamentary reforms. They have also shown themselvesto be amenable to progressive interpretations by the judiciary and tribunals alike.24

3.1.1 Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms was inserted into the CanadianConstitution in 1982 by legislation passed by the Parliament in Westminster. TheSupreme Court of Canada has interpreted the Charter as incorporating the twoprinciples of rationality and proportionality in constitutional interpretation.25

21 The International Covenant on Civil and Political Rights came into effect on 23 March 1976.22 The International Covenant on Economic, Social and Cultural Rights came into effect on

23 March 1976.23 Pritchard, p 36.24 Pritchard, p 16.25 David Beatty, ‘The Canadian Charter of Rights: Lessons and Laments’, The Modern Law

Review, 60(4), July 1997, p 481.


Whenever the Supreme Court of Canada is asked to rule on the constitutionality ofa law or rule that has been made, the applicant must meet a standard of proof that iscomposed of two limbs:

(i) It must be shown that the right or activity for which protection is soughtis one of the rights or freedoms that the Charter guarantees; and

(ii) It must be shown that the law does impinge or limit that constitutionalright.

A piece of legislation or decision that contravenes a constitutional right under theCharter will not necessarily be ‘struck down’ by the Supreme Court. The actionunder question may still be declared valid by the Court if it can be shown:

(i) That the action was taken in pursuit of a pressing social objective andthat its implementation impaired the constitutional right or rightsinvolved, as little as possible; and

(ii) That the impairment of the right or rights was done to no greater extentthan in other places in similar circumstances.26

It has been argued that the enactment of the Charter in Canada has resulted in amore fair and just society as the Supreme Court of Canada has been able to ‘strikedown’ laws that have unnecessarily infringed rights and freedoms.27

3.1.2 Bill of Rights Act 1990 (New Zealand)

A Bill of Rights generally takes the form of a constitutional guarantee of individualhuman rights that is enacted as supreme law above legislative amendment.However, this is not the case with the New Zealand Bill of Rights Act 1990 as it isan ordinary statute that is capable of being repealed or amended by a simplemajority vote in Parliament.28

Despite its ‘vulnerability’ to amendment, it is arguable that the New Zealand Bill ofRights Act 1990 has shown that it has a significant capacity to enforce internationalhuman rights29even though it was never meant to carry a higher constitutional

26 Beatty, pp 482-483.27 Beatty, pp 496-497.28 J A Smillie, ‘Fundamental Rights, Parliamentary Supremacy and the New Zealand Court of

Appeal’, The Law Quarterly Review, v 111, April 1995, p 211.29 Rodney Harrison, ‘Domestic enforcement of international human rights in Courts of law: Some

recent developments’, Commonwealth Law Bulletin, 21(4), October 1995, p 1293.


value.30 The Bill of Rights is intended to affect the interpretation of statutes and isnot intended to strike down provisions in statutes that are inconsistent with it.31

The Bill of Rights contains provisions for the protection and promotion of humanrights such as security against unreasonable search and seizure, right to legalcounsel, right to trial without undue delay, various civil and political rights, and theright to principles of justice.

3.2 JUDICIAL ENFORCEMENT OF HUMAN RIGHTS

The enforcement of human rights through the courts can occur in any of thefollowing ways:

(a) through the enforcement of fundamental Bills of Rights enshrined within aconstitution;

(b) through the enforcement of Bills of Rights passed as general legislation;(c) through the enforcement of specific legislation that proscribes particular

discriminatory behaviour;(d) through the enforcement of indigenous rights under treaty or at common

law;(e) through the importation into domestic law of the terms of international

covenants on human rights; and(f) through the enforcement of fundamental constitutional principles said to

stand within the common law.32

The Australian Human Rights and Equal Opportunity Commission (HREOC) is aquasi-judicial mechanism established by the Commonwealth to enforce humanrights through particular as well as general legislation.

4 OVERVIEW OF THE HUMAN RIGHTS COMMISSION ACT 1981(COMMONWEALTH)

Domestic enforcement of international human rights is generally completed throughthe enactment of ordinary legislation. This may take the form of human rightslegislation that makes provision for the prevention of discrimination on specified

30 Smillie, p 213.31 P T Rishworth, ‘The potential of the New Zealand Bill of Rights’, New Zealand Law Journal,

February 1990, p 68.32 Rodney Harrison, ‘Domestic enforcement of international human rights in Courts of law: Some

recent developments’, Commonwealth Law Bulletin, October 1995, p 1290.


grounds whilst providing for separate enforcement by a Human Rights Tribunal orsome other similar body.33

It has been argued that the mechanisms for supervising compliance withinternational standards of human rights that have been written into Australiandomestic law are toothless.34 This is despite government assertions that humanright standards are being recognised and are being given full effect.35

HREOC was initially established by the Human Rights Commission Act 1981. Itsmain function was to inquire into any act or practice of the Commonwealth thatmay have been contrary to the human rights and freedoms recognised in thefollowing international instruments:

• Declaration of the Rights of the Child adopted by member states on 20November 1959;

• Declaration of the Rights of Mentally Retarded Persons adopted by memberstates on 20 December 1971;

• International Covenant on Civil and Political Rights signed by Australia on18 December 1972;

• International Covenant on Economic, Social and Cultural Rights signed byAustralia on 18 December 1972;

• Declaration on the Rights of Disabled Persons adopted by member states on9 December 1975;

• Convention on the Elimination of all forms of Discrimination againstWomen signed by Australia 17 July 1980.36

HREOC has the responsibility for the administration of the following Acts:• Racial Discrimination Act 1975• Sex Discrimination Act 1984• Human Rights and Responsibility Commission Act 1986 (previously known

as the Human Rights and Equal Opportunity Commission Act 1986)• Disability Discrimination Act 1992.

Originally, HREOC had the power to conduct an inquiry and make declarations thatcertain action should be taken by any offending party. The determinations of theCommission were neither binding nor enforceable alone.

33 Harrison, p 1290.34 Pritchard, p 36.35 Kristen Walker, ‘Who’s the Boss? The Judiciary, the Executive, the Parliament and the

Protection of Human Rights’ Western Australian Law Review, v 25, December 1995, p 238.36 Australia, Parliamentary Library, Bills Digest No. 115, 1998-1999 p 3

http://www.aph.gov.au/library/pubs/bd/1998-99/99bd115.htm Downloaded 25 January 2000.

http://www.aph.gov.au/library/pubs/bd/1998-99/99bd115.htm


However, HREOC or the complainant could initiate separate proceedings in theFederal Court to have a determination of HREOC registered with that court. Thisregistration was to then give HREOC’s determinations the force of a Federal Courtorder.

Prior to 1986, membership of HREOC comprised a chairperson and a deputychairperson and six commissioners.37 Since 1986, membership has comprised apresident and six commissioners:

• A human rights and equal opportunities commissioner;• A race discrimination commissioner;• A sex discrimination commissioner;• A disability discrimination commissioner;• An Aboriginal and Torres Strait Islander social justice commissioner; and• A privacy commissioner.

The responsibilities of HREOC fall within four main areas:• public awareness and education;• anti-discrimination and human rights complaints;• human rights compliance; and• policy and legislative development.38

5 CURRENT POWERS AND METHODS USED FOR SETTLINGCOMPLAINTS

HREOC has the power to investigate infringements under the RacialDiscrimination Act 1975, Sex Discrimination Act 1984, and the DisabilityDiscrimination Act 1992. There are three different approaches that could be takenunder the Human Rights and Responsibilities Act 1986 for the settling ofcomplaints. These are conciliation meetings, inquiries by the Commission or ahearing in the Federal Court.

There is the authority to convene conciliation hearings for matters that are broughtbefore it. If conciliation is unsuccessful, an inquiry may be held before theappropriate commissioner for a determination.39

After the holding of an inquiry HREOC may:

37 Australia. Human Rights Commission, Annual Report 1985-1986, p 78-79;

Australia. Department of Foreign Affairs and Trade, Australian Treaty List, 1989 No 38, p 477,505-506, 532,552,573.

38 Australia. Human Rights and Equal Opportunity Commission, Annual Report 1998-1999, p 19.39 Human Rights and Equal Opportunity Commission, Annual Report 1998-1999, p 19.


• dismiss the complaint; or• declare that the respondent has engaged in unlawful conduct and should not

repeat or continue such conduct; or• declare that the respondent should perform any reasonable act or course of

conduct to redress any loss or damage suffered by the complainant; or• declare that the respondent should employ or re-employ the complainant; or• declare that the respondent should pay damages to the complainant; or• declare that it would be inappropriate for any further action to be taken in

the matter.

These types of determination are authorised under s 25Z(1) Racial DiscriminationAct 1975, s 81(1) Sex Discrimination Act 1984, and s 103(1) DisabilityDiscrimination Act 1992. However, under these same sections, the determinationsarrived at are not enforceable against any of the parties. The enforcement ofdeterminations of the HREOC is by way of proceedings in the Federal Court.40

The issue of the enforcement of determinations made by administrative bodies suchas HREOC was examined by the Senate Standing Committee on Legal andConstitutional Affairs in 1992. The recommendation of this ParliamentaryCommittee was that such orders be registered with the Federal Court and that whenthis was done, the determinations would be given the effect of orders of that Court.

In line with the Senate Committee’s recommendations,41 the Sex Discriminationand Other Legislation Amendment Act 1992 contained provisions to the effect thatthe registration of HREOC determinations in the Federal Court would beenforceable as if they were orders of the court.

6 CONCERNS WITH THE LEGALITY OF THE HUMAN RIGHTSAND EQUAL OPPORTUNITY COMMISSION’SDETERMINATIONS

Further concern with the authoritative nature of HREOC’s determinations wasraised by the Senate Standing Committee in 1992.42 The basis for the argument that

40 s 25ZC Racial Discrimination Act 1975; s 83A Sex Discrimination Act 1984; s 105A

Disability Discrimination Act 1992.41 Australia. Parliament, Senate Standing Committee on Legal and Constitutional Affairs, Review

of Determinations of the Human Rights and Equal Opportunity Commission and the PrivacyCommissioner, Report, November 1992, p 8.

42 Australia. Senate Standing Committee on Legal and Constitutional Affairs, Report, November1992, p 12.


HREOC could not legally enforce its determinations upon the parties appearingbefore it lay with the High Court’s decision in the Boilermakers’ case of 1951.43

In the Boilermakers’ case the court invalidated the powers of punishment forcontempt by the Commonwealth Court of Conciliation and Arbitration under theConciliation and Arbitration Act 1904-1952 in the following way:

Chapter III of the Constitution does not permit of the exercise of a jurisdiction whichof its very nature belongs to the judicial power of theCommonwealth…notwithstanding that such a body is organised as a court…

Thus the Commonwealth Court of Conciliation and Arbitration, though under s51(xxxv) of the Constitution there is legislative power to give it the description andmany of the characteristics of a court, is established as an arbitral tribunal whichcannot constitutionally combine with its dominant purpose and essential functionsthe exercise of any part of the strictly judicial power of the Commonwealth.44

In considering the evidence before it, the Senate Standing Committee concluded thatHREOC in determining whether breaches of the Racial Discrimination Act 1975and/or breaches of the Sex Discrimination Act 1984 had occurred in matters broughtbefore it, and in awarding damages and making restraining orders as a result ofhearing such matters, probably was exercising a judicial power.45

7 EVIDENCE TO THE SENATE STANDING COMMITTEE ANDITS RECOMMENDATIONS

Both the majority and the minority reports of the Standing Committeeacknowledged the constitutional problem with enforcement of HREOCdeterminations.46 The Parliamentary Committee concluded that for enforcement tobe lawful it required a second hearing in the Federal Court as HREOC was notrecognised as a court under the Constitution.

In written submissions to the Parliamentary Committee, HREOC and the PrivacyCommissioner submitted that legislative amendments should allow for theregistration of determinations of HREOC in the Federal Court and that they beaccorded evidentiary weight in that court. This submission was supported by theAttorney-General’s Department. Additionally, the Attorney-General’s Departmentsubmitted that any legislative changes should not provide that a Federal Court

43 R v Kirby; Ex parte Boilermakers’ Society of Australia (1951) 94 CLR 254.44 R v Kirby; Ex parte Boilermakers’ Society of Australia (1951) 94 CLR 254.45 Australia. Senate Standing Committee on Legal and Constitutional Affairs, Report, November

1992, p 14.46 Australia. Senate Standing Committee on Legal and Constitutional Affairs, Report, November

1992, pp 8,35.


hearing was by way of an appeal from HREOC but that the Federal Court wouldconduct hearings through its own jurisdiction.

The Chief General Counsel submitted that legislation providing for a finding of factmade by a non-judicial body such as HREOC to be considered by the Federal Courtwould not offend the Constitution provided the court had the full power to allowfurther evidence to be taken.

The Australian Law Reform Commission submitted that any determination byHREOC as to whether any discrimination legislation had been contravened couldonly be lawfully done under the Constitution by the exercise of judicial power.

The Queensland Legal Aid Office (QLAO) submitted that the constitutionalvalidity of any proposal to amend existing legislation to allow HREOCdeterminations to be registered with the Federal Court would not be fully testeduntil a dissatisfied respondent appealed to the High Court.

QLAO further submitted that this uncertainty could only be overcome byintroducing amending legislation that allowed for the Federal Court to determinedisputes currently determined by HREOC but with HREOC and the PrivacyCommissioner retaining their investigative and conciliatory functions. TheAttorney-General’s Department submitted that such a course of action would onlydeny disputing parties access to a process that was cheaper and less formal than anofficial court hearing.

The Australian Law Reform Commission submitted that legislative changes shouldbe made that would allow for the establishment of a Human Rights Division withinthe Federal Court. Rules should allow the conciliation procedures of HREOC to beused through the use of judicial registrars. This proposal is similar to proceduresunder the Family Law Act 1975.

In essence the Senate Standing Committee canvassed the following options forlegislative change:

• Registering HREOC determinations in the Federal Court;• Registering conciliated agreements reached in the HREOC with the Federal

Court;• Removal of the determination powers from HREOC;• Delegation of powers of the Federal Court to the HREOC; and• Investing HREOC with powers of a judicial body.

The Parliamentary Committee recommended that in cases where a respondent failsto comply with a determination of HREOC then that determination be registeredwith the Federal Court. If the respondent further failed to comply with the HREOCdetermination or otherwise lodge an objection, then HREOC’s determination would


become an order of the court. Under the Committee’s proposals any objection thatwas lodged would trigger a review by the court.

8 THE HIGH COURT’S DECISION IN BRANDY V HUMANRIGHTS AND EQUAL OPPORTUNITY COMMISSION47

This case came before the High Court after a hearing before the RacialDiscrimination Commissioner. The plaintiff, Bell, lodged a complaint withHREOC alleging contravention of the Racial Discrimination Act 1975 by Brandy, afellow employee of the Aboriginal and Torres Strait Islander Commission.

The Commissioner had previously determined that Brandy should apologise for thediscriminatory treatment suffered by Bell. In addition, HREOC determined thatBrandy compensate Bell for damages suffered, by the payment of $2 500 and thatthe Aboriginal and Torres Strait Islander Commission as his employer shoulddiscipline Brandy, and apologise to Bell and pay him $10,000 damages. Brandyinstigated an appeal to the determination of the HREOC in the High Court.

At the time of the High Court appeal, the Racial Discrimination Act 1975 providedthat the determinations of the HREOC were to be registered with the Federal Court.Once this registration was completed, prima facie this gave HREOC determinationsthe strength of a court order that was enforceable.48 The High Court however ruledthat the enforcement powers under s 25ZAA of the Racial Discrimination Act 1975were invalid under Chapter III of the Australian Constitution. The High Court heldthat it was constitutionally impossible for HREOC exercising an executive powerand performing an administrative function to also issue orders that take effect as anexercise of judicial power. Such a situation offended against the doctrine of theseparation of powers.49

As an identical enforcement scheme operated under s 82 of the Sex DiscriminationAct 1984, s 104 of the Disability Discrimination Act 1992, and s 62 of the PrivacyAct 1988 those enforcement provisions were also invalidated by the decision of theHigh Court in Brandy.50

47 Brandy v Human Rights and Equal Opportunity Commission (1994-1995) 127 ALR 1.48 Ruth Treyde, ‘Enforcing Human Rights: The Response to Brandy’, Public Law Review 7,

March 1996, p 15.49 Brandy V Human Rights and Equal Opportunity Commission (1995) 127 ALR 1.50 Treyde, p 15.


8.1 RAMIFICATIONS OF THE HIGH COURT DECISION

The decision of the High Court in Brandy had major ramifications for HREOC.Subsequent to the High Court decision, the government introduced amendinglegislation. The government announced its intention of committing itself toimplementing appropriate procedures for determining and enforcing decisions ofHREOC.51 The changes were to include:

• The simplification and consolidation of human rights legislation into asingle Act;

• Complaints which cannot be conciliated to be dealt with by the FederalCourt which will have a Human Rights Registry within it; and

• A new management structure for HREOC with the creation of a full-timePresident as the chief executive.52

Although the matter before the High Court concerned an interpretation of theRacial Discrimination Act 1975, other human rights legislation touching on sexdiscrimination, disability discrimination and native title issues will also beaffected.53 It is also possible that the impact of the Brandy decision will haveramifications further afield in other tribunals and commissions.

9 HUMAN RIGHTS LEGISLATION AMENDMENT BILL (N0 2)1998

Under this amending Bill the Federal Court was to be required to re-hear mattersdetermined by HREOC in conciliation whenever a respondent fails to comply withthe original determination. This was a return to the pre-1992 position in thisregard.54 The 1998 amending Bill allowed HREOC to conciliate on human rightsmatters. If conciliation fails, then the matter is to be heard by the Federal Court.55

The 1998 amendment Bill would have also removed the authority of three of thecommissioners in the settlement of discrimination complaints. Only the president

51 Australia. Attorney-General, ‘Enforcement of Orders under Racial Discrimination Act’

Ministerial Document Service, Daily Collation of Ministers’ and Opposition Leaders’Statements, News Release Number 139/94-95, 27 February 1995, p 4871.

52 Australia. Attorney-General, ‘Human Rights and Equal Opportunity Commission Overhaul’,Ministerial Document Service, Daily Collation of Ministers’ and Opposition Leaders’Statements, News Release Number 128/95-96, 29 January 1996, p 4298.

53 Australia. Department of the Parliamentary Library, Harry Brandy v Human Rights and EqualOpportunity Commission, Research Note No 11 by Max Spry, 2 March 1995, p 2.

54 Treyde, p 16.55 ‘Human Rights Legislation Amendment Bill’, Alternative Law Journal, 22 (1) February 1997,

p 42.


of HREOC would have been authorised to conciliate on complaints. Thecommissioners would have had the right to appear in the Federal Court (with theapproval of the court) when discrimination cases are before that Court.56

The Human Rights Legislation Amendment Bill 1998 was to make the followingimportant changes:

• The name Human Rights and Responsibilities Commission (HRRC) is to besubstituted;

• The positions of disability discrimination commissioner, race discriminationcommissioner, and sex discrimination commissioner are to be abolished.They are to be replaced by three deputy presidents who will be responsiblefor human rights and disability discrimination; racial discrimination andsocial justice; and sex discrimination and equal opportunity respectively;

• The responsibilities of the privacy commissioner are to be removed fromthe HRRC to a separate position under the Office of the PrivacyCommissioner;

• There was to be a greater emphasis on the research and educational role forHRRC;57

• If HRRC were to decide to exercise its right to join in court proceedingswith the leave of the court, HRRC was to be required to inform theAttorney-General of such intention and to obtain the permission of theAttorney-General; and

• The previous power of the Minister and HRRC to appoint advisorycommittees to advise HRRC as to the performance of its functions was tobe abolished.

The 1998 Bill had not completed its passage through both houses when theparliament was prorogued in preparation for the 1998 general election.

10 HUMAN RIGHTS LEGISLATION AMENDMENT BILL (N0 2)1999

The majority of the provisions of the 1998 Bill which did not pass through theParliament are included in this Bill.58

56 Alternative Law Journal, 22 (1) February 1997, p 42.57 Australia. Attorney-General and Minister for Justice, ‘Human Rights and Responsibilities

Commission’, Ministerial Document Service, Daily collation of Ministers’ and OppositionLeaders’ Statements, News Release Number 49/97-98, 25 September 1997, p 1197.

58 Australia. Parliament of Australia, Human Rights Legislation Amendment Bill (No.2) 1999,Bills Digest No.146 1998-99.


This Bill was introduced on 17 February 1999 and if passed without amendment,will include (in addition to the provisions listed above for the 1998 Bill):

• Judges of the Federal Court may delegate to a Judicial Registrar most of theCourt’s human rights powers, for the purpose of conducting informal andaccessible hearings. Any determination made by a Registrar will bereviewable by the Federal Court; and

• HRRC will be able to apply to the Federal Court to act as a friend of thecourt in discrimination cases where conciliation was not successful.

The legal term for acting as a friend of the court is amicus curiae. A friend of thecourt is not a party to proceedings and, by tradition, is limited to assisting the courton points of law that may not have otherwise been brought to its attention. A friendof the court can only appear when there is good reason and the court grants leave todo so.

11 CONCLUSION

The establishment of the HREOC fulfilled Australia’s international obligations as amember of the United Nations. The High Court of Australia in Brandy did notinvalidate determinations of HREOC per se. The High Court did howeverinvalidate determinations of HEROC that were registered with the Federal Court asif they were orders of the Federal Court on the basis that a registration and reviewof an HREOC determination was by way of an appeal.

Determinations of HREOC were held to be an exercise of an executive power, withregistration of those determinations with the Federal Court being the performanceof an administrative function on the part of HREOC. The High Court further heldthat the combination of an executive power and an administrative function couldnot create an order that took effect as an exercise of judicial power. The doctrine ofthe separation of powers was breached by the scheme adopted under the RacialDiscrimination Act 1975 and accordingly the scheme was unconstitutional.

The Human Rights Legislation Amendment Bill (No 2) 1999 creates the new nameof HRRC. It also abolishes the five specific Commissioners and replaces themwith three Deputy Presidents responsible for human rights and disabilitydiscrimination, racial discrimination and social justice, and sex discrimination andequal opportunity. The major thrust, however, is to overcome the constitutionalhurdle upon which the High Court decision was based. The amendment legislationwill ensure that hearings before the Federal Court will be heard as initial hearingsso that decisions will be constitutionally enforceable.

BIBLIOGRAPHY

MONOGRAPHS


• Australia. Constitutional Commission, Final Report of the Constitutional Commission,v 1, 1988.

• Australia. Department of Foreign Affairs and Trade, Australia’s Report 1998 Five-Year Review of the 1993 Vienna Declaration and Program of Action, February 1999.http://www.dfat.gov.au/hr/reports/vienna_review_98.htmlDownloaded 17 January 2000.

• Australia. Department of Foreign Affairs and Trade, Australian Treaty List, 1989No 38.

• Australia. Department of the Parliamentary Library, ‘Human Rights LegislationAmendment Bill (No 2) 1999’, Bills Digest No 146 1998-99. Downloaded from website at http://www.aph.gov.au/library/

• Australia. Department of the Parliamentary Library, Bills Digest No 115, 1998-1999.Downloaded 25 January 2000 from web site at http://www.aph.gov.au/library

• Australia. Department of the Parliamentary Library, Harry Brandy v Human Rightsand Equal Opportunity Commission, Research Note No 11 by Max Spry,2 March 1995.

• Australia. Human Rights and Equal Opportunity Commission, Annual Report 1998-1999.

• Australia. Human Rights Commission, Annual Report 1985-1986.

• Australia. Parliament, Senate Standing Committee on Legal and ConstitutionalAffairs, Review of Determinations of the Human Rights and Equal OpportunityCommission and the Privacy Commissioner, Report, November 1992.

• Australia. Senate, Legal and Constitutional Legislation Committee, Consideration oflegislation referred to the committee: Provisions of the Human Rights LegislationAmendment Bill (No 2) 1998, February 1999.

• New South Wales. Parliamentary Library Research Service, The Protection of HumanRights: A Review of Selected Jurisdictions, Briefing Paper No 3/2000 by G Griffith.

• O’Neill N & Handley R, Retreat from Injustice: Human Rights in Australian Law,Federation Press, Sydney, 1994.

• Queensland. Electoral and Administrative Review Commission, Review ofPreservation and Enhancement of Individuals’ Rights and Freedoms, August 1993.

• Queensland. Legislative Assembly, Legal, Constitutional and Administrative ReviewCommittee, The Preservation and Enhancement of Individuals’ Rights and Freedoms:Should Queensland Adopt a Bill of Rights?, Issues Paper No 3, September 1997.

• Queensland. Legislative Assembly. Legal, Constitutional and Administrative ReviewCommittee, The Preservation and Enhancement of Individuals’ Rights and Freedoms:Should Queensland Adopt a Bill of Rights?, Report No 12, November 1998.

http://www.dfat.gov.au/hr/reports/vienna_review_98.html

http://www.aph.gov.au/library/

http://www.aph.gov.au/library


JOURNAL ARTICLES

• ‘Human Rights Legislation Amendment Bill’, Alternative Law Journal, 22 (1)February 1997, p 42.

• Beatty B, ‘The Canadian Charter of Rights: Lessons and Laments’, The Modern LawReview, 60(4), July 1997, pp 481-498.

• Boniface D, ‘Does Anyone Know Where We’re Going? Changes to the Human Rightsand Equal Opportunity Commission’, Australian Journal of Human Rights, 4(1),1997, pp 206-212.

• Boniface D, ‘More changes proposed in addition to changes already proposed: TheHuman Rights and Responsibility Commission – a friend in need?’ Australian Journalof Human Rights, 5(1), 1998, pp 235-253.

• Burdekin B, ‘Human Rights in Australia: The Need for a Bill of Rights’, Wiser,No 2, 1997, pp 11-16.

• Harrison R, ‘Domestic enforcement of international human rights in Courts of law:Some recent developments’, Commonwealth Law Bulletin, 21(4), October 1995,pp 1290-1305.

• Hunt A, ‘Fundamental Rights and the New Zealand Bill of Rights Act’, The LawQuarterly Review, v 111, October 1995, pp 565-569.

• Ison TG, ‘A Constitutional Bill of Rights – The Canadian Experience’, The ModernLaw Review, 60(4), July 1997, pp 499-512.

• Joseph PA, ‘The New Zealand Bill of Rights’, Public Law Review, v 7, September1996, pp 162-176.

• Kirby J, ‘Human Rights in Australia: Common Law Protections’, Wiser, No 2, 1997,pp 4-10.

• Mathew P, ‘International Law and the Protection of Human Rights in Australia:Recent Trends’, Sydney Law Review, 17(2), June 1995, pp 177-203.

• Pritchard S, ‘The Jurisprudence of Human Rights: Some Critical Thought andDevelopments in Practice’, Australian Journal of Human Rights, 2(1),December 1995, pp 3-38.

• Rishworth PT, ‘The potential of the New Zealand Bill of Rights’, New Zealand LawJournal, February 1990, pp 68-72.

• Smillie JA, ‘Fundamental Rights, Parliamentary Supremacy and the New ZealandCourt of Appeal’, The Law Quarterly Review, v 111, April 1995, p 209-217.

• Treyde R, ‘Enforcing Human Rights: The Response to Brandy’, Public Law Reviewv 7, March 1996, pp 15-19.

• Walker K, ‘Who’s the Boss? The Judiciary, the Executive, the Parliament and theProtection of Human Rights’, Western Australian Law Review, v 25, December 1995,pp 238-254.


MINISTERIAL STATEMENTS

• Australia. Attorney-General, ‘Enforcement of Orders under Racial DiscriminationAct’, Ministerial Document Service, Daily Collation of Ministers’ and OppositionLeaders’ Statements, News Release Number 139/94-95, 27 February 1995, p 4871.

• Australia. Attorney-General and Minister for Justice, ‘Human Rights andResponsibilities Commission’, Ministerial Document Service, Daily collation ofMinisters’ and Opposition Leaders’ Statements, News Release Number 49/97-98, 25September 1997, p 1197.

• Australia. Attorney-General, ‘Human Rights and Equal Opportunity CommissionOverhaul’, Ministerial Document Service, Daily Collation of Ministers’ andOpposition Leaders’ Statements, News Release Number 128/95-96, 29 January 1996,p 4298.

LEGISLATION

• Disability Discrimination Act 1992 (Cth)

• Racial Discrimination Act 1975 (Cth)

• Sex Discrimination Act 1984 (Cth)

CASES

• Brandy v Human Rights and Equal Opportunity Commission (1994-1995) 127ALR 1.

• Gerhardy v Brown (1985) 57 ALR 472.

• Mabo v Queensland (No 1) (1988) 83 ALR 14.

• R v Kirby; Ex parte Boilermakers’ Society of Australia (1951) 94 CLR 254.

• Victoria Park Racing and Recreational Grounds Club Co Ltd v Taylor,(1937) 58 CLR 479 at 496.

rbr 4/00 alterations to the australian human rights and ... · alterations to the australian human...

Documents