Consitutional issue in Brandy V HREOC Essay

The typesetters case Brandy V human being Rights and Equal Opportunity focal point challenges the constituent(a) harshness of the scheme for the obligatement of Human Rights and Equal Opportunity Commission (HREOC) intention nether the Racial contrariety Act 1975 (Cth). The proud judicatory of Australia had decided that since HREOC was non constituted as a court according to Chapter III of the system, and therefrom was non able to exercise judicial power of commonwealth and enforce any subsequent closings.The Constitution is divided into separate chapters dealing independently with the parliament, decision maker and the Judicature. The pure doctrine of insulation of powers prescribes that the functions of the three arms of regimen activity be ca-caly and institutionally separated . It is important to none that Australia does non have a pure separation of power because we inherited the British Westminster tradition. For example, Chapter I legislative parliament and Chapter II executive are plainly two independent arms of Constitution, except in practice, this distinction in the midst of 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 64 of the Commonwealth Constitution. However, there is a rigid separation of power in Judicature as described by Chapter III of the Constitution, this characteristic is evident in Brandy V HREOC. The decision made by graduate(prenominal) judicatory quash the enforcement mechanics for decisions of HREOC on the grounds that it infringed the doctrine of separation of powers. This is also evident in the Boilermakers case3 whereby the superior Court argued the relevant legislation was impermissible below the separation of judicial power principle.The High Court determines the Constitutional append as the judges seeks to define judicial power. though the reputation and scope of federal jud icial power was not exhaustively defined, but High Court concluded only those courts under Chapter III of the Constitution trick exercise federal judicial power, however HREOC is not a Chapter III court, so it could not exercise judicial power of Commonwealth. to a greater extent specifically, High Court held that ss 25ZAA, 25ZAB and 25ZAC of the Racial Discriminate Act 1975 (CTH) governing the fitting and enforcement of HREOC objects were invalidbecause those provisions had the rear of making HREOC determination binding and conclusive as if it was an order made by the federal official Court4. 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 High Courts deci sion did not address the subject matter of the case, the sympathetic rights foreshorten was not even mentioned through push through the reasoning of the judgements. Personally, I believe the decision is proficiently uncontaminating as it is based on the separation of power, but its neediness of consideration in kind-hearted rights issue resulted the victim suffering the resolution of racial abuse without any healthy action being acted upon because it could not be enforced by HREOC. So the question remains, can the separation of power really act as safeguard to individual rights or is it merely legal fiction?Apart from resolving the Constitutional issue and finalized the dispute. The decision made by High Court also invalidated the amendments of Racial Discrimination Act 1975 (Cth), which means from the day High Court passed on the final decision, HREOC, and other similar fit outs including the Industrial Relations Commission and the Australian Broadcasting Authority could no t make any determination and enforce any judicial decisions by registering their determination in the Federal Court5. Ironically, the contemporary notion access to justice seems to be ignored as the doctrine of separation of power is highlighted. The amendments was made to create efficiency and handiness of the administration of justice in human rights, so that the ordinary can claim their human rights without going to the court, which is usually sort of costly, overly formal, much intimidating6.As the invalidation of amendments takes place, previous costly and problematic enforcement procedures of the Commission returns, the re landment of the splendor of the constitutional doctrine of separation of powers and uncertainty in the protection of human rights also are evident7. It is almost rhetorical what role does HREOC provide to the public in terms of claiming their human rights since the invalidation ofamendments? This question illustrates the tension created amid the courts that are vested with judicial power and commissions as a result of High Courts decision. The inconsistency between Commonwealth legislation and the commission which is appointed under Commonwealth legislation, in which resulted invalidation of the amendments shows the dominance in which the High Court has over the other branches of the government. As stated explicitly in s 109 of the Constitutionwhen a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid8.The concept of parliamentary supremacy and reign is significant in the decision of High Court. It is mentioned briefly above that Australia inherited the Westminster tradition from fall in 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 incident 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.The decision made by the High Court concerns with constitutional validity rather than the issue of racial discrimination, thus it is fair to say the decision is legally justified but it did not chastely justified. This can be explained by the rigid characteristics of western law as discussed by Patrick Parkinson, namely autonomy of law, which is conceptually distinct from custom, morality, religion or politics . This concept is reflected in the Brandy case that High Court adopted legal formalism (an interpretation of legal texts focussing closely on the words, a r ule based approach with little or no regard to friendly, political consideration ) and procedural approach rather than legal instrumentalism (a view that creativity in theinterpretation of legal texts is justified in order to assure that the law serves good public policy and social interests ) and substantive approach.The High Court seeks to achieve justice by consistently applying rules and procedures that shape a fair, consistent and predictable legal system and constrains government arbitrariness. It does not concern whether the end result will be substantive, as such it satisfies ethical, emotional or political factors. This notion of justice is much concerned with process and procedure than the result. As Selznick says, legality has to do in general with how policies and rules are made and applied rather than with their contents . As a result, High Court held that the enforcement of determinations administered by HREOC was invalid based on the technical ground of separation of judicial power, but ignoring the moral issues concerned in the case as they do not promote fairness and consistency.However, the High Court is now shifting to a system where it seeks to balance out the strict legal framework and social interests. In the context of human rights, this shift is reflected in Australian Capital Television V commonwealth13 and across the country News Pty Ltd V Wills14, where the High Court implied issues of human rights in line of work with Brandy V HREOC.In conclusion, in the case of Brandy V HREOC, from a constitutional law perspective, the decision made by the High Court merge the separation of power and the exercise of judicial power. However, it is obvious that the rigid characteristics of conventional western law have contributed towards the inefficiencies to the guarantees of human rights issue.BibliographyDicey, A. V. Introduction to the Study of the right of the Constitution. Indianapolis Liberty Fund, 1982Dr Imtiaz Omar, Individual Right s and Judicial Power the underlying equating (1995) Australasian Law Teachers AssociationsCatriona Cook et al, Laying Down the law (6th edition, 2002)LLB100 adjuvant Reading, University of WollongongImtiaz Omar, Darkness On the Edge of Town The High Court And Human Rights in the Brandy case (1995) 2 Australia Journal of Human RightsPatrick Gunnings, Chapter III courts organic evolution of Australias Federal Judiciary (1995) 6 Public Law reexaminationAlison Gooly, modern framework after Brandy, (University of Wollongong, 1997)http//www.hreoc.gov.au/racial_discrimination/guide_law/landmark.html