'Consitutional issue in Brandy V HREOC Essay\r'

'The gaucherie Brandy V gay Rights and commensurate Opportunity Commission challenges the constitutional validity of the system of rules for the enforcement of adult male Rights and Equal Opportunity Commission (HREOC) role under the racial Discrimination wreak 1975 (Cth). The mellowed motor hotel of Australia had decided that since HREOC was non constituted as a court according to Chapter common chord of the composition, and whence was not able to influence legal indicator of commonwealth and enforce any subsequent determinations.\r\nThe Constitution is divided into separate chapters dealing separately with the parliament, decision maker and the Judicature. The â€Å"pure” article of belief of musical interval of military groups prescribes that the functions of the three munition of government be clearly and institutionally detached . It is important to note that Australia does not direct a pure juridic separation of reason because we inherited the British Westminster tradition. For example, Chapter I legislative parliament and Chapter II executive are seemingly two independent mail of Constitution, but in practice, this distinction between the executive and legislature is blurred, such that the majority rule Ministers are at the same time members of the executive and the legislature, as it is required by s 64 of the tribe Constitution. However, there is a starchy separation of power in Judicature as described by Chapter III of the Constitution, this characteristic is straightforward in Brandy V HREOC. The decision made by heights courtyard invalidated the enforcement mechanism for decisions of HREOC on the fuses that it infringed the doctrine of separation of powers. This is withal unmingled in the Boilermaker’s circumstance3 whereby the high up Court argued the applicable legislation was impermissible under the separation of discriminatory power principle.\r\nThe tall Court determines the Constitutiona l bformer(a) as the judges seeks to define â€Å"judicial power”. Though the nature and scope of federal judicial power was not exhaustively defined, but broad(prenominal) Court concluded only those courts under Chapter III of the Constitution goat work up federal judicial power, however HREOC is not a Chapter III court, so it could not exercise judicial power of Commonwealth. more(prenominal) specifically, High Court held that ss 25ZAA, 25ZAB and 25ZAC of the Racial Discriminate correspond 1975 (CTH) governing the registration and enforcement of HREOC finales were invalid because those provisions had the moment of making HREOC aspiration binding and conclusive â€Å"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 germ ane(predicate) provisions of the amended Racial Discrimination Act 1975 (CTH) invalid, as it contravenes Chapter III of the Constitution.\r\nThe High Court’s decision did not address the subject numerate of the case, the clement rights issue was not even mentioned passim the reasoning of the judgements. Personally, I believe the decision is technically fair as it is ground on the separation of power, but its lack of consideration in pitying rights issue resulted the victim suffering the consequence of racial abuse with go forth any legal action cosmos 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?\r\nApart from resolution 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 deci sion, HREOC, and other convertible commissions including the Industrial Relations Commission and the Australian beam Authority could not make any determination and enforce any judicial decisions by registering their determination in the Federal Court5. Ironically, the contemporary notion ‘ approach to arbitrator’ seems to be ignored as the doctrine of separation of power is highlighted. The amendments was made to create cogency and accessibility of the administration of justice in valet rights, so that the public can claim their human rights without going to the court, which is usually or else costly, overly formal, very much intimidating6.\r\nAs the annulment of amendments takes place, previous costly and bad enforcement procedures of the Commission returns, the restatement of the importance 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 c ontribute to the public in terms of claiming their human rights since the invalidation of amendments? This question illustrates the tension created between the courts that are vested with judicial power and commissions as a result of High Court’s 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 utter explicitly in s 109 of the Constitution:\r\nâ€Å"when a rectitude of a state is in consonant with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”8.\r\nThe plan of parliamentary supremacy and sovereignty is significant in the decision of High Court. It is mentioned soon above that Australia inherited the Westminster tradition from United Kingdom, as under British Constituti onal law, the Parliament has inviolable sovereignty and therefore has the power to make or unmake any law. Though this idea of overbearing power is less unambiguous 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.\r\nThe 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 lawfully justified but it did not morally justified. This can be explained by the rigid characteristics of western law as discussed by Patrick Parkinson, namely autonomy of law, which is concept ually distinct from custom, morality, religion or politics . This concept is reflected in the Brandy case that High Court take legal formalism (an comment of legal texts focalisation closely on the words, a rule based approach with little or no run into to sociable, policy-making consideration ) and procedural approach rather than legal instrumentalism (a view that creativity in the interpretation of legal texts is justified in order to fit that the law serves good public policy and social interests ) and substantive approach.\r\nThe 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 more come to with sue and procedure than the result. As Selznick says, â€Å"legality has to do primarily with how policies and rules are made and applied rather than with their circumscribe â€Å". 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.\r\nHowever, the High Court is presently 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 Nationwide watchword Pty Ltd V Wills14, where the High Court implied issues of human rights in contrast with Brandy V HREOC.\r\nIn conclusion, in the case of Brandy V HREOC, from a constitutional law perspective, the decision made by the High Court amalgamate the separation of power and the exercise of judicial power. However, it is obvious that the rigid characteristics of traditional we stern law have contributed towards the inefficiencies to the guarantees of human rights issue.\r\nBibliography:\r\nDicey, A. V. Introduction to the Study of the Law of the Constitution. capital of Indiana: Liberty Fund, 1982\r\nDr Imtiaz Omar, Individual Rights and Judicial Power: the key equation (1995) Australasian Law Teachers Associations\r\nCatriona Cook et al, laying Down the law (6th edition, 2002)\r\nLLB100 Supplementary Reading, University of Wollongong\r\nImtiaz Omar, â€Å"Darkness On the Edge of Town: The High Court And Human Rights in the Brandy case” (1995) 2 Australia Journal of Human Rights\r\nPatrick Gunnings, â€Å"Chapter III courts: Evolution of Australia’s Federal bench” (1995) 6 Public Law Review\r\nAlison Gooly, ‘ red-brick framework after Brandy’, (University of Wollongong, 1997)\r\nhttp://www.hreoc.gov.au/racial_discrimination/guide_law/landmark.html\r\n'