The case Brandy V Human Rights and Equal Opportunity Commission challenges the constitutional validity of the scheme for the enforcement of Human Rights and Equal Opportunity Commission (HREOC) determination under the Racial Discrimination Act 1975 (Cth). The High Court of Australia had decided that since HREOC was not constituted as a court according to Chapter III of the Constitution, and therefore was not able to exercise judicial power of commonwealth and enforce any subsequent decisions.
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 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 High Court invalidated the enforcement mechanism for decisions of HREOC on the grounds that it infringed the doctrine of separation of powers. This is also evident in the Boilermaker's case3 whereby the High Court argued the relevant legislation was impermissible under the separation of judicial power principle.
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...