Commission or to the President (7 s.24(4), (5), (5A)) .

8. Part III of the Act is headed "Inquiries and Civil Proceedings".

The Commission is obliged to hold an inquiry into each complaint

referred to it by the Commissioner or any matter referred to it by the

Minister for inquiry as a complaint under Pt III (8 s.25A) . The

powers of the Commission to hold an inquiry under the Act may, if the

President so directs, be exercised by a single member of the Commission

who is legally qualified, or by two or more members of the Commission

at least one of whom is legally qualified (9 s.25B(1)) . In that

event, the Commission's powers with respect to a final determination

"(1) After holding an inquiry, the Commission may:

(a) dismiss the complaint the subject of the inquiry; or

(b) find the complaint substantiated and make a determination,

which may include any one or more of the following:

(i) a declaration that the respondent has engaged in conduct

rendered unlawful by this Act and should not repeat or continue such

(ii) a declaration that the respondent should perform any

reasonable act or course of conduct to redress any loss or damage

(iii) a declaration that the respondent should employ or

(iv) a declaration that the respondent should pay to the

complainant damages by way of compensation for any loss or damage

suffered by reason of the conduct of the respondent;

(v) a declaration that the respondent should promote the

(vi) a declaration that the termination of a contract or

agreement should be varied to redress any loss or damage suffered by

(vii) a declaration that it would be inappropriate for any

(2) A determination of the Commission under subsection (1) is not

binding or conclusive between any of the parties to the

9. Where a determination has been made under s.25Z, the Commission

is required as soon as practicable after the determination is made to

"lodge the determination in a Registry of the Federal Court" and

thereupon the Registrar is required to register the determination (10

s.25ZAA(2) and (3)) . The Commission must, within seven days, give

written notice of the registration to the complainant and respondent

(11 s.25ZAA(4)) . It should be noted that s.25ZAA has no application

where the respondent is a Commonwealth agency or is the principal

executive of a Commonwealth agency (12 s.25ZAA(1)) . The Parliament

apparently assumed that in those cases the determination will be met,

so far as the Commonwealth is concerned, without the need for

registration. Nevertheless, Div.4 of Pt III of the Act - "Review and

enforcement of determinations involving Commonwealth agencies" -

contains provisions aimed at ensuring that a Commonwealth agency or the

principal executive of an agency complies with a determination under

s.25Z. The ultimate sanction for non-compliance is an application to

the Federal Court for an order directing the agency or principal

executive to comply with a determination (13 s.25ZI) .

10. Upon registration in the Federal Court, the determination, which

hitherto has not been binding or conclusive between the parties (14

s.25Z(2)) , has effect as if it were an order made by the Federal

Court (15 s.25ZAB(1)) . However, no action to enforce the

determination may be taken before the end of the "normal application

and review period" and a failure by a respondent, during that period,

to comply with a positive requirement of a determination is not a

contravention of the determination (16 s.25ZAB(3) and (4)) . The

expression "normal application and review period" is defined (17

s.25ZAB(11)) . The period is 28 days from registration of the

determination or, if the respondent seeks a review of the

determination, when proceedings on the review are completed or

otherwise terminated. The respondent to a determination may, within 28

days after the determination is registered, apply to the Federal Court

for such a review (18 s.25ZAB(5) and (6)) . The Court may extend the

time for applications "only in exceptional circumstances" (19

s.25ZAB(7)) . It is only the respondent who may seek a review. Thus,

if the Commission determined, pursuant to s.25Z(1)(b)(vii), "that it

would be inappropriate for any further action to be taken in the

matter", the complainant would not be entitled to invoke the review

procedure and that would be the end of the matter so far as the Act is

11. The parties to a review are the applicant and the complainant to

the determination (20 s.25ZAC(2)) . The Court "may review all issues

of fact and law" (21 s.25ZAC(4)) . A party "cannot adduce new

evidence without the leave of the Court" (22 s.25ZAC(5)) . After

reviewing the determination, the Court "may make such orders as it

thinks fit (including a declaration of right)"; the orders may confirm

a determination that is registered under s.25ZAA (23 s.25ZAC(6)) .

12. The complaint made by the third defendant against the plaintiff

alleged breaches of ss.9 and 15 of the Act. It is unnecessary to set

out these sections in full. Section 9(1) makes it unlawful for a

person to do any act involving a distinction, exclusion, restriction

or preference based on race, colour, descent, or national or ethnic

origin which has the purpose or effect of nullifying or impairing the

recognition, enjoyment or exercise, on an equal footing, of any human

right or fundamental freedom in any field of public life. Section 15

contains a number of prohibitions on employers or persons acting on

their behalf in respect of acts relating to the non-employment,

treatment and dismissal of a person by reason of his or her race,

colour, or national or ethnic origin. The third defendant gave notice

in accordance with s.24(4)(a) of the Act and accordingly the

Commissioner referred the complaint to the Commission.

13. The power of the Commission to hold an inquiry under the Act

into the third defendant's allegations was exercised by Mr Castan

Q.C., the second defendant. The second defendant was appointed

pursuant to s.24F of the Act which empowers the Minister to appoint a

person to participate, in accordance with the section, "in the

performance of the functions of the Commission". He conducted an

inquiry and, on 22 December 1993, made a determination pursuant to

s.25Z of the Act. The determination took effect as a determination of

the Commission. By that determination the second defendant found the

third defendant's complaint substantiated and declared that the

following acts or courses of conduct should be performed:

"(1) that the Plaintiff do apologise to the Third Defendant, the form of the apology being annexed to the determination;

(2) that the Plaintiff do pay the sum of $2 500 to the Third

Defendant by way of damages for the pain, humiliation, distress and

loss of personal dignity suffered by the Third Defendant;

(3) that ATSIC do take disciplinary action against the Plaintiff,

in relation to the conduct which he perpetrated against the Third

(4) that ATSIC do apologise to the Third Defendant in relation to

the handling of his complaint, the form of the apology being annexed

(5) that ATSIC do pay the sum of $10 000 to the Third Defendant by

way of damages for the pain, humiliation, distress and loss of

14. On 23 December 1993 the Commission lodged the determination in

the New South Wales Registry of the Federal Court and the

determination was registered that day. On 20 January 1994 the

plaintiff, having received notice of registration, applied to the

Federal Court, pursuant to s.25ZAB(5) of the Act, for a review of the

determination. That application has proceeded no further pending a

decision on the plaintiff's challenge to the validity of sections of

15. The plaintiff's challenge to particular provisions of the Act is

based upon the proposition that they provide for an exercise of

judicial power otherwise than in conformity with Ch.III of the

Commonwealth Constitution in that the power is exercised by the

Commission which is not a court established pursuant to s.71 and

constituted in accordance with s.72 of the Constitution. The

plaintiff further argues that the correctness of this proposition is

not affected by the provisions for review by the Federal Court.

16. To determine this argument it is first necessary to consider the

relevant steps in the operations of the Commission. In doing so, it

is also necessary to bear in mind that, in the words of Griffith CJ

in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (24 [1909] HCA 36; (1909) 8

CLR 330 at 357. See also Re Cram; Ex parte Newcastle Wallsend Coal Co.

Pty. Ltd. [1987] HCA 29; (1987) 163 CLR 140 at 148-149 and the authorities referred to

"(t)he exercise of (judicial) power does not begin until some tribunal

which has power to give a binding and authoritative decision (whether

subject to appeal or not) is called upon to take action."

17. The exercise of power by a tribunal to enforce its own orders

has sometimes been seen as an essential element in the exercise of

judicial power. In Rola Co. (Australia) Pty. Ltd. v. The

Commonwealth (25 [1944] HCA 17; (1944) 69 CLR 185 at 199) , Latham CJ, with

reference to Griffith CJ's definition of judicial power in Huddart,

"If a body which has power to give a binding and authoritative

decision is able to take action so as to enforce that decision, then,

but only then, according to the definition quoted, all the attributes

of judicial power are plainly present. I refer to what I say more in

detail hereafter, that the Privy Council, in the Shell Case (26

(1931) AC 275) ... expressly held that a tribunal was not necessarily

a court because it gave decisions (even final decisions) between

In Rola Co. (27 (1944) 69 CLR at 200) , it was the absence of any

power in the Committee of Reference to enforce its own determination

that led Latham CJ (with whom McTiernan J agreed) to conclude that

the Committee did not exercise judicial power. And, in the Shell Case

(28 Shell Co. of Australia v. Federal Commissioner of Taxation (1931)

AC 275 at 297) , the Privy Council held that a tribunal is not

necessarily a court in the strict sense of exercising judicial power

because it gives a final decision; nor because two or more contending

parties appear before it between whom it has to decide; nor because it

gives decisions which affect the rights of subjects; nor because it is

a body to which a matter is referred by another body.

18. However, it has not been found possible to offer an exhaustive

definition of judicial power (29 Precision Data Holdings Ltd. v.

Wills (1991) 173 CLR 167 at 188-189) . So, in Reg. v. Davison, Dixon

CJ and McTiernan J observed (30 [1954] HCA 46; (1954) 90 CLR 353 at 368) :

"(T)he enforcement of a judgment or judicial decree by the court

itself cannot be a necessary attribute of a court exercising judicial

power. The power to award execution might not belong to a tribunal,

and yet its determinations might clearly amount to an exercise of the

judicial power. Indeed it may be said that an order of a court of

petty sessions for the payment of money is an example. For warrants

for the execution of such an order are granted by a justice of the

The fact that the Commission cannot enforce its own determinations is

a strong factor weighing against the characterization of its powers as

judicial; though it must be recognized that this is not an exclusive

19. The plaintiff's challenge only impugned the registration and

enforcement procedure of the Act. Section 25Z, which empowers the

Commission to make determinations, was only put in issue to the extent

that it supported the procedure overall. Because s.25Z(2) provides

that a determination of the Commission is "not binding or conclusive

between any of the parties to the determination", the holding of an

inquiry and the making of a determination under the Act cannot of

itself be seen as an exercise of judicial power (31 See Aldridge v.

Booth [1988] FCA 170; (1988) 80 ALR 1 at 6) . In that regard, where the Commission

finds a complaint to have been substantiated, the Commission is

confined to making a declaration (which is not binding or conclusive)

qualified in terms of what the respondent "should" do rather than in

20. At one point, the plaintiff placed some reliance on the

following passage from Re Ranger Uranium Mines Pty. Ltd.; Ex parte

Federated Miscellaneous Workers' Union of Australia (32 [1987] HCA 63; (1987) 163

CLR 656 at 666) in support of an argument that a determination by the

Commission may of itself constitute an exercise of judicial power:

"The power of inquiry and determination is a power which

properly takes its legal character from the purpose for which it is

undertaken. Thus inquiry into and determination of matters in issue

is a judicial function if its object is the ascertainment of legal

But this passage must be taken in context and, in particular, read

"As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co.

Pty. Ltd. (33 (1987) 163 CLR at 149) , the formation of an opinion as

to legal rights and obligations does not involve the exercise of

judicial power, at least if it is 'a step in arriving at the ultimate

conclusions on which (is based) the making of an award intended to

regulate the future rights of the parties'. For, as was there made

clear, 'the formation of such an opinion does not bind the parties and

cannot operate as a binding declaration of rights'."

In the end, the plaintiff did not attack s.25Z except in so far as it

was part of the procedure for registration and enforcement.

21. Although many decision-making functions may take their character

as an exercise of judicial, executive or legislative power from their

legislative setting, the character of the decision-maker and the

nature of the decision-making process, some decision-making functions

are exclusive and inalienable exercises of judicial power (34 Reg. v.

Davison (1954) 90 CLR at 368-370 per Dixon CJ and McTiernan J) . As

Dixon CJ and McTiernan J observed in Reg. v. Davison (35 ibid. at

"The truth is that the ascertainment of existing rights by the

judicial determination of issues of fact or law falls exclusively

within judicial power so that the Parliament cannot confide the

function to any person or body but a court constituted under ss.71 and

72 of the Constitution".

In that statement, the expression "judicial determination" means an

authoritative determination by means of the judicial method, that is,

an enforceable decision reached by applying the relevant principles of

22. Thus, it has always been accepted that the punishment of

criminal offences and the trial of actions for breach of contract and

for wrongs are inalienable exercises of judicial power (36 Federal

Commissioner of Taxation v. Munro [1926] HCA 58; (1926) 38 CLR 153 at 175 per Isaacs

J) . The validity of that proposition rests not only on history and

precedent but also on the principle that the process of the trial

results in a binding and authoritative judicial determination which

ascertains the rights of the parties (37 Reg. v. Davison (1954) 90

CLR at 368-370 per Dixon CJ and McTiernan J) . So, when A alleges

that he or she has suffered loss or damage as a result of B's unlawful

conduct and a court determines that B is to pay a sum of money to A by

way of compensation, there is an exercise of judicial power. The

determination involves an exercise of such power not simply because it

is made by a court but because the determination is made by reference

to the application of principles and standards "supposed already to

exist" (38 Prentis v. Atlantic Coast Line [1908] USSC 160; (1908) 211 US 210 at 226

per Holmes J) . And the determination is binding and authoritative in

the sense that there is what has been described as an immediately

enforceable liability of B to pay A the sum in question (39 See Rola

Co. (1944) 69 CLR at 199 per Latham C.J) . Consequently, even if the

determination in such a case were to be made by an administrative

tribunal and not by a court, the determination would constitute an

exercise of judicial power, although not one in conformity with Ch.III

of the Constitution.

23. In the present case, the determinations by the Commission for

the payment of damages by the appellant and ATSIC were made by

reference to the application of the pre-existing principles and

standards prescribed by the provisions of ss.9 and 15 of the Act.

Accordingly, the only distinction between the determination supposed

in the last sentence of the preceding paragraph and the determinations

by the Commission in the present case is that the Commission's

determinations only become binding on the parties and enforceable

after registration of the determinations in the Federal Court. Upon

registration they become binding on the parties and have effect as if

they were an order of the Federal Court. However, the determinations

cannot be enforced until the expiration of the normal application and

24. If the respondent to a determination does not apply for a review

within 28 days of the registration of the determination, then the

determination is enforceable at the expiration of that time unless

leave to apply is granted after that time by the Federal Court. And,

if the Commission finds the complaint substantiated and yet declares

under s.25Z(1)(b)(vii) that it would be inappropriate for any further

action to be taken in the matter, the determination is binding and

enforceable upon registration in the Federal Court because a

successful complainant is given no right to invoke the review

25. Turning to the case before the Court, whatever might be the

enforceability of a declaration that the plaintiff "do apologise", a

declaration that the plaintiff "do pay the sum of $2 500" to the third

defendant, once registered, attracts the operation of s.53 of the

Federal Court of Australia Act 1976 (Cth). By that section, a person

in whose favour a judgment is given is entitled to the same remedies

for enforcement, by execution or otherwise, as are allowed by the laws

of the State or Territory applicable. In the present case, this means

New South Wales. Section 53 does not affect the operation of any

provision made by or under any other Act or the Rules of Court for the

execution and enforcement of judgments of the Court (40 s.53(2)) .

26. But s.25ZAB goes beyond providing the machinery for the

enforcement of a determination. It purports to give a registered

determination effect "as if it were an order made by the Federal

Court". A judicial order made by the Federal Court takes effect as an

exercise of Commonwealth judicial power, but a determination by the

Commission is neither made nor registered in the exercise of judicial

power. An exercise of executive power by the Commission and the

performance of an administrative function by the Registrar of the

Federal Court simply cannot create an order which takes effect as an

exercise of judicial power; conversely, an order which takes effect as

an exercise of judicial power cannot be made except after the making

of a judicial determination. Thus, s.25ZAB purports to prescribe what

the Constitution does not permit.

27. The Commonwealth submits, however, that the provisions relating

to review of a determination by the Federal Court operate in such a

way that a determination, even when registered, does not constitute an

exercise of judicial power by the Commission. This submission, which

was put at the forefront of the Commonwealth's argument, should be

considered in the context of the interlocking provisions relating to

inquiries and to review and enforcement of determinationsa (that is,

Divs 3 and 4 of Pt III of the Act).

28. The system of review of a determination by the Federal Court was

introduced as part of the amendments made by the Sex Discrimination

and other Legislation Amendment Act. Some further changes were made by

the Law and Justice Legislation Amendment Act. However, before turning

to this system of review, it is useful to compare the relevant

provisions of the Act before the system was introduced. When first

enacted, the Act contained ss.9 and 15, though not entirely in their

present form. There was a Commissioner for Community Relations whose

functions were, inter alia, inquiring into alleged infringements of Pt

II and endeavouring to effect a settlement of the matters alleged to

constitute those infringements (41 s.20(a)) . However, a person

aggrieved by an act considered to have been unlawful by reason of Pt II

was entitled to "initiate a proceeding in relation to the act by way of

civil action in a court of competent jurisdiction" (42 s.24(1)) and

the court was empowered to grant various remedies, including injunctive

relief (of a negative or mandatory nature), cancellation or variation

of a contract and damages (43 s.25) . Clearly, in those

circumstances, the function of the Commissioner was administrative

29. The [Human Rights and Equal Opportunity Commission (Transitional

](/cgi-bin/viewdoc/au/legis/cth/consol_act/hraeocpacaa19861054/)Provisions and Consequential Amendments) Act 1986 (Cth) repealed Pt

III of the Act - "Inquiries and Civil Proceedings" - and substituted a

new part under the same heading. A Race Discrimination Commissioner

was given the functions previously exercised by the Commissioner for

Community Relations. Provision was made for inquiries by the

Commission and the making of determinations. The Commission or a

complainant was empowered to institute a proceeding in the Federal

Court to enforce a determination. Where the Court was satisfied that

the respondent had engaged in conduct or committed an act that was

unlawful under the Act, the Court was authorized to make such orders

(including a declaration of right) as it thought fit. Thus, an

independent exercise of judicial power by the Federal Court was

30. The Commonwealth, as intervener, argued that, although styled as

a review, the procedure set out in s.25ZAC "is obviously an exercise

of original jurisdiction" because the Federal Court may review all

issues of fact and law and may make such orders as it thinks fit. The

argument continued: registration of a determination under s.25ZAA is

the first step in the judicial process established by ss.25ZAB and

25ZAC. It is like the filing of an originating process.

31. In considering the nature of the "review" contemplated by

s.25ZAC, it is relevant to note that the expression "review" is

commonly used in the context of judicial control of administrative

action and in the context of comprehensive administrative review by an

administrative tribunal of administrative decisions (44 Re Brindle;

Ex parte F.B. and F.A. McMahon Pty. Ltd. [1992] FCA 203; (1992) 108 ALR 470 at 473 per

Hill J) . But what emerges from the judicial decisions and, for that

matter, from statutes is that "review" has no settled pre-determined

meaning; it takes its meaning from the context in which it appears.

32. It might be said that the use of the word "review" is apt to

signify that the decision under review is administrative in character

rather than one made in the exercise of the judicial power of the

Commonwealth (45 Re Greenhill; Ex parte Pook (1988) 83 ALR 295 at 296

per Gummow J) , though, in the context of the review of a decision of

the Registrar of Trade Marks by the High Court, the word "appeal" was

used in s.45 of the Trade Marks Act 1905 (Cth) (46 Farbenfabriken

Bayer Aktiengesellschaft v. Bayer Pharma Pty. Ltd. [1959] HCA 32; (1959) 101 CLR 652

at 656, 657 per Dixon C.J) . And it is possible that those who drafted

s.25ZAC considered that the Commission's functions did not involve an

33. The Commonwealth contends that the review function entrusted to

the Federal Court is an exercise of federal judicial power in the form

of a grant of original jurisdiction (47 ibid. at 657 per Dixon C.J) .

It is in that context that the Commonwealth argues that the provisions

of the Act which give binding effect to a determination of the

Commission and make it enforceable merely endow the determination with

those attributes as incidental to the exercise of judicial power by the

Federal Court. That argument is without substance for the simple

reason that the determination is registered and becomes enforceable in

circumstances where the review procedure is not invoked.

34. An endeavour was made to support the argument by reference to a

supposed analogy with a default judgment. But default judgments are

entered in the exercise of judicial power by a court, pursuant to its

rules, and may be set aside in accordance with those rules.

Non-compliance with those rules is the occasion for the entry of a

default judgment. So any comparison with a default judgment is at

35. In exercising its jurisdiction to review a determination by the

Commission, the starting point is the existence of a determination and

the evidence given to the Commission in the inquiry which led to the

making of the determination. The Federal Court must start with this

material; indeed, unless the Court gives leave to adduce new evidence,

that will be the only material before the Court. It is true that the

Court is empowered to review all issues of fact and law. That, we

think, is a facultative provision; whether the Court does review all

issues of fact and law will be a matter for it in the light of the

arguments put to it. Whether it is incumbent on a respondent to give

grounds or the like for a review is something on which the Act is

silent. This may well be deliberate, in order to avoid argument that

the review is by way of appeal. At the same time, the Court does have

the determination and the evidence before the Commission and it is

clear that the Court must have regard to that material.

36. This is in marked contrast to O.36A r.7(4) of the Family Law

Rules which was considered in Harris v. Caladine (48 [1991] HCA 9; (1991) 172 CLR

"A court reviewing an exercise of power by a Judicial Registrar or a

Registrar shall proceed by way of a hearing de novo but may have

regard to the proceedings, including the evidence given and any

affidavit filed, before the Judicial Registrar or Registrar, as the

Harris v. Caladine concerned a delegation of judicial power by a court

constituted in accordance with Ch.III of the Constitution. By reason

of the nature of the review provided by the Family Law Rules and other

aspects of the Family Law Act 1975 (Cth) and the Rules, the delegation

was held not to infringe Ch.III. But the provisions of the Act with

which the Court is presently concerned are so different as to preclude

37. In assessing the nature of the review procedure in the Act,

"A party cannot adduce new evidence without the leave of the

The expression "new evidence" is, we think, unusual. Expressions such

as fresh evidence and further evidence have well-understood meanings.

But not so "new evidence". Does it mean evidence about matters on

which no evidence was led before the Commission and which is therefore

new in that sense? Or does it mean that the parties may give evidence

confined to what was said before the Commission? The latter seems

unlikely since it would be merely repetitive. Furthermore, it will

preclude cross-examination (assuming cross-examination to be

available), aimed at bringing out facts which were not before the

38. Again, by way of contrast, reference may be made to Aldridge v.

Booth (49 [1988] FCA 170; (1988) 80 ALR 1) where Spender J considered the role of

the Federal Court in the Sex Discrimination Act 1984 (Cth) as it stood

at the relevant time. Proceedings to enforce a determination of the

Commission could be brought in the Federal Court. The Court was

required to be "satisfied" that the respondent had engaged in conduct

or committed an act that was unlawful under the Act. In that context,

"How matters of fact are established to the satisfaction of the court

will depend upon the nature of the case but where, as here, the

dispute requires an assessment of the credibility of the parties and

their witnesses, it seems to me impossible to avoid the conclusion that

those issues must be determined on the basis of oral evidence."

But that statutory context is quite different from the one with which

we are concerned. The Act says nothing as to the satisfaction of the

Federal Court, simply that the Court may review all issues of fact and

39. The review to which ss.25ZAB and 25ZAC refer is not a hearing de

novo. Such a hearing requires that "the informant or complainant

starts again and has to make out his case and call his witnesses" (51

Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.

[1976] HCA 62; (1976) 135 CLR 616 at 620; see also Harris v. Caladine (1991) 172 CLR

40. Not only is there in these sections an absence of language

indicating a fresh hearing, the legislative history points in a

different direction. In Maynard v. Neilson (52 (1988) EOC 92-226) ,

Wilcox J referred to difficulties under the existing system of

enforcement under the Act. His Honour spoke of the considerable costs

of duplicating the hearing and of the danger that, in the context of a

non-binding determination, a party might fail to put forward all

relevant evidence. He also said that the standing of the Commission

was not enhanced by a procedure which enabled the parties to disregard

its determinations and to resist enforcement by the presentation of

41. In the course of introducing the amendments to the Act through

the Sex Discrimination and other Legislation Amendment Act, the Prime

Minister made express reference to the remarks of Wilcox J to which

we have just referred (53 Commonwealth, House of Representatives,

Parliamentary Debates (Hansard), 3 November 1992 at 2397) . It is

clear that the intention of the Parliament was to avoid these

criticisms. The Parliament did so by introducing a scheme whereby the

Federal Court would review, in the sense of re-examine, a determination

in light of the evidence adduced before the Commission. In light of

that evidence and any new evidence the Court permits to be led, the

Court may make such orders as it thinks fit. In that way a duplicate

hearing is avoided and a party who chooses not to lead all relevant

evidence before the Commission is at risk that no further evidence will

42. The Court may review issues of fact, though, ordinarily, one

would expect its attention to focus more on issues of law,

particularly if it has not allowed new evidence. And one would expect

that, in reviewing issues of fact, and of law, the Court will inquire

why the determination should not stand. After all, if nothing is

offered by the respondent to suggest that the determination is in

43. The Federal Court is expressly empowered to confirm a

determination though that express power hardly seems necessary given

the wide powers the Court otherwise has. The Court is not expressly

empowered to set aside a determination but such a power must be

implied because, unless the Court does so, the determination stands as

44. It follows from what has been said in these reasons that the

Act, in providing for registration of a determination of the Commission

and its enforcement as if it were an order of the Federal Court, purports

to provide for an exercise of judicial power by the Commission and

that the jurisdiction conferred on the Federal Court to review a

determination of the Commission does not provide a sufficient answer

45. The consequence is that so much of the Act as provides for

registration and enforcement of a determination is invalid. This must

result in the invalidation of the review procedure which is dependent

on the existence of a registered determination. It follows that

ss.25ZAB and 25ZAC are invalid. Section 25ZC must also be declared

invalid because it attaches to a procedure which, in our view, is

DEANE, DAWSON, GAUDRON AND McHUGH JJ Under Pt II of the [Racial

](/cgi-bin/viewdoc/au/legis/cth/consol_act/rda1975202/)Discrimination Act 1975 (Cth) ("the Act") various acts of racial

discrimination are made unlawful (54 ss. 9, 11, 12, 13, 14, 15, 16 and

17. . A complaint may be lodged with the Human Rights and Equal

Opportunity Commission ("the Commission") that a person has done an act

that is unlawful by virtue of a provision of Pt II (55 s.22) .

Procedures are laid down for the settlement or summary disposal of a

matter arising out of a complaint (56 See Div.2, Pt III of the Act) ,

but failing that, the Commission is required to hold an inquiry and

dispose of it. Under s.25Z(1) of the Act the Commission may determine

the matter by making various declarations, including a declaration that

the respondent has engaged in conduct rendered unlawful by the Act, a

declaration that the respondent should perform any reasonable act or

course of conduct to redress any loss or damage suffered by the

complainant and a declaration that the respondent should pay to the

complainant damages by way of compensation for any loss or damage

suffered by reason of the conduct of the respondent. Under s.25Z(2) a

determination under sub-s.(1) is not binding or conclusive between any

2. As soon as practicable after a determination is made, the

Commission must lodge it in a Registry of the Federal Court and upon

lodgment the Registrar must register the determination (57 s.25ZAA(2)

and (3)) . There is an exception where the respondent is a

Commonwealth agency or the principal executive of a Commonwealth agency

(58 s.25ZAA(1)) . Upon registration of a determination, it has effect

as if it were an order made by the Federal Court, but the respondent

may apply to the Federal Court for a review of the determination (59

s.25ZAB(1) and (5)) . No action may be taken to enforce the

determination before the expiration of the time for making an

application for review, which, in the case of a determination made

before 18 January 1994, is a period of 28 days from the registration of

the determination or, if a review is instituted within that time, a

period ending upon the completion of the review (60 s.25ZAB(3), (5),

(6) and (7). And see s.18(2) of the [Law and Justice Legislation

](/cgi-bin/viewdoc/au/legis/cth/num_act/lajlaa1993342/)Amendment Act 1993 (Cth)) .

3. Under s.25ZAC the Court may, in reviewing the determination,

review all issues of fact and law and make such orders as it thinks

fit, including a declaration of right. However, a party cannot adduce

4. The third defendant, John Bell, and the plaintiff, Harry Brandy,

were employed as officers of the Department of Aboriginal Affairs and

the Aboriginal and Torres Strait Islander Commission ("ATSIC"). The

Department of Aboriginal Affairs was superseded by ATSIC in 1990. Mr

Bell lodged a complaint with the Commission that Mr Brandy and their

employer, ATSIC, had done acts which were unlawful under ss.9 and 15

of the Act. The second defendant, Mr Castan Q.C., who constituted the

Commission under ss.24F and 25B of the Act for the purpose, held an

inquiry and made a determination in which he found the complaint

substantiated. He declared that the following acts or course of

"(1) that the Plaintiff do apologise to the Third Defendant, the form of the apology being annexed to the determination;

(2) that the Plaintiff do pay the sum of $2 500 to the Third

Defendant by way of damages for the pain, humiliation, distress and

loss of personal dignity suffered by the Third Defendant;

(3) that ATSIC do take disciplinary action against the Plaintiff,

in relation to the conduct which he perpetrated against the Third

(4) that ATSIC do apologise to the Third Defendant in relation to

the handling of his complaint, the form of the apology being annexed

(5) that ATSIC do pay the sum of $10 000 to the Third Defendant by

way of damages for the pain, humiliation, distress and loss of

5. On 23 December 1993, the Commission lodged the determination in

a Registry of the Federal Court and it was registered on the same day.

On 20 January 1994, the plaintiff applied to the Federal Court for a

review of the Commission's determination. He also commenced

proceedings in this Court claiming that those sections of the Act

which provide for the registration and review of a determination are

invalid by reason of the requirements of Ch.III of the Constitution.

6. Pursuant to s.18 of the Judiciary Act 1903 (Cth), Gaudron J

stated a case and reserved a question for the consideration of the

Full Court which, in its amended form, is as follows:

"In consequence of the amendments embodied in the Sex Discrimination

and Other Legislation Amendment Act 1992 and/or the Law and Justice

Legislation Amendment Act 1993 as they affect the Racial

Discrimination Act 1975 are any, and if so which, of the provisions of

Part III of the Racial Discrimination Act invalid?"

7. Part III of the Racial Discrimination Act is that part which

provides for inquiries into complaints, their determination by the

Commission and their registration in the Federal Court. Under

legislation which was introduced in 1986 (61 [Human Rights and Equal

](/cgi-bin/viewdoc/au/legis/cth/consol_act/hraeocpacaa19861054/)[Opportunity Commission (Transitional Provisions and Consequential

](/cgi-bin/viewdoc/au/legis/cth/consol_act/hraeocpacaa19861054/)Amendments) Act 1986 (Cth)) , the determination of the Commission was

not binding or conclusive between any of the parties to the

determination (62 s.25Z(2)) , but the Commission or complainant might

institute a proceeding in the Federal Court to enforce a determination

(63 s.25ZA(1)) . Under that legislation, where the Federal Court was

satisfied that the respondent had engaged in conduct or committed an

act which was unlawful under the Racial Discrimination Act, the Federal

Court might make such orders as it thought fit (64 s.25ZA(2)) . The

current provisions of the Act providing for the registration of a

determination of the Commission by the Federal Court were the result of

amendment of the Act by the Sex Discrimination and other Legislation

Amendment Act 1992 and the Law and Justice Legislation Amendment Act

8. The Commission, notwithstanding that on this occasion it

comprised a legally qualified person, is not constituted as a court in

accordance with the requirements of Ch.III of the Constitution. It

cannot, therefore, exercise the judicial power of the Commonwealth

which, under s.71, may only be vested in the High Court or such other

courts as the Parliament creates or invests with federal

jurisdiction (65 See Waterside Workers' Federation of Australia v.

J.W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434) . Those courts must be

constituted as provided by s.72. The plaintiff contends that the

amendments to the Act which require the registration of the

Commission's determinations in the Federal Court, resulting in their

enforceability under s.53 of the Federal Court of Australia Act 1976

(Cth), are invalid because they purport to invest the Commission with

9. Difficulty arises in attempting to formulate a comprehensive

definition of judicial power not so much because it consists of a

number of factors as because the combination is not always the same.

It is hard to point to any essential or constant characteristic.

Moreover, there are functions which, when performed by a court,

constitute the exercise of judicial power but, when performed by some

other body, do not (66 See Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353 at 368) .

These difficulties were recognized by the Court in Precision Data

Holdings Ltd. v. Wills (67 (1991) 173 CLR 167 at 188-189) :

"The acknowledged difficulty, if not impossibility, of framing a

definition of judicial power that is at once exclusive and exhaustive

arises from the circumstance that many positive features which are

essential to the exercise of the power are not by themselves

conclusive of it. Thus, although the finding of facts and the making

of value judgments, even the formation of an opinion as to the legal

rights and obligations of parties, are common ingredients in the

exercise of judicial power, they may also be elements in the exercise

One is tempted to say that, in the end, judicial power is the power

exercised by courts and can only be defined by reference to what

courts do and the way in which they do it, rather than by recourse to

any other classification of functions. But that would be to place

reliance upon the elements of history and policy which, whilst they

are legitimate considerations, cannot be conclusive.

10. It is traditional to start with the definition advanced by

Griffith CJ in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead

(68 [1909] HCA 36; (1909) 8 CLR 330 at 357) in which he spoke of the concept of judicial power in terms of the

binding and authoritative decision of controversies between subjects

or between subjects and the Crown made by a tribunal which is called

upon to take action. However, it is not every binding and

authoritative decision made in the determination of a dispute which

constitutes the exercise of judicial power. A legislative or

administrative decision may answer that description. Another important

element which distinguishes a judicial decision is that it determines

existing rights and duties and does so according to law. That is to

say, it does so by the application of a pre-existing standard rather

than by the formulation of policy or the exercise of an administrative

discretion. Thus Kitto J in Reg. v. Gallagher; Ex parte Aberdare

Collieries (69 (1963) 37 ALJR 40 at 43) said that judicial power

consists of the "giving of decisions in the nature of adjudications

upon disputes as to rights or obligations arising from the operation of

the law upon past events or conduct". But again, as was pointed out in

Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (70 [1987] HCA 29; (1987) 163

CLR 140 at 149) , the exercise of non-judicial functions, for example,

arbitral powers, may also involve the determination of existing rights

and obligations if only as the basis for prescribing future rights and

11. However, there is one aspect of judicial power which may serve

to characterize a function as judicial when it is otherwise equivocal.

That is the enforceability of decisions given in the exercise of

judicial power. In Waterside Workers' Federation of Australia v. J.W.

Alexander Ltd. (71 (1918) 25 CLR at 451) Barton J said:

"It is important to observe that the judicial power includes

with the decision and the pronouncement of judgment the power to carry

that judgment into effect between the contending parties. Whether the

power of enforcement is essential to be conferred or not, when it is

conferred as part of the whole the judicial power is undeniably

And in Federal Commissioner of Taxation v. Munro (72 [1926] HCA 58; (1926) 38 CLR 153

at 176) Isaacs J pointed out that the concept of judicial power

includes enforcement: the capacity to give a decision enforceable by

execution. It was this characteristic of judicial power which was

emphasized by Latham CJ in Rola Co. (Australia) Pty. Ltd. v. The

Commonwealth (73 [1944] HCA 17; (1944) 69 CLR 185 at 198-199) . He pointed to the

fact that in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead

Griffith CJ referred not only to the giving of a binding and

authoritative decision as being indicative of the exercise of judicial

power, but also spoke of such a decision being given by a tribunal

"called upon to take action". Thus, Latham CJ pointed out, where a

tribunal is able to give a binding and authoritative decision and is

able to take action so as to enforce that decision, "all the attributes

of judicial power are plainly present" (74 ibid. at 199) .

12. However, notwithstanding the reference by Griffith CJ to a

tribunal "called upon to take action", it is not essential to the

exercise of judicial power that the tribunal should be called upon to

execute its own decision. As Dixon CJ and McTiernan J observed in

Reg. v. Davison (75 (1954) 90 CLR at 368) , an order of a court of

petty sessions for the payment of money is made in the exercise of

judicial power, but the execution of such an order is by means of a

warrant granted by a justice of the peace as an independent

administrative act (76 cf. Local Courts (Civil Claims) Act 1970

(N.S.W.), s.58) . Turning to the present case, it is apparent that

the Commission's functions point in many respects to the exercise of

judicial power. It decides controversies between parties and does so

by the determination of rights and duties based upon existing facts

and the law as set out in Pt II of the Racial Discrimination Act.

Indeed, the relevant function of the Commission is essentially to

determine whether the provisions of ss.9 and 15, which prohibit certain

kinds of racial discrimination, have been contravened. That is

clearly indicative of the exercise of judicial power, for, as Starke J

said in Victorian Chamber of Manufactures v. The Commonwealth

(Industrial Lighting Regulations) (77 [1943] HCA 22; (1943) 67 CLR 413 at 422) :

"The Constitution remits to the judicial power of the Commonwealth the

jurisdiction and authority to determine whether a subject has or has

not contravened a law or regulation of the Commonwealth."

Moreover, the remedies which the Commission may award (78 See s.25Z)

include damages as well as declaratory or injunctive relief and,

according to whether they may be viewed as punitive or otherwise, make

its functions closely analogous to those of a court in deciding

criminal or civil cases. And as Isaacs J remarked in Federal

Commissioner of Taxation v. Munro (79 (1926) 38 CLR at 175) , the

punishment of crime or the trial of actions for breach of contract or

for civil wrongs is "appropriate exclusively to judicial action".

13. However, if it were not for the provisions providing for the

registration and enforcement of the Commission's determinations, it

would be plain that the Commission does not exercise judicial power.

That is because, under s.25Z(2), its determination would not be

binding or conclusive between any of the parties and would be

unenforceable. That situation is, we think, reversed by the

14. Under s.25ZAA registration of a determination is compulsory and

under s.25ZAB the automatic effect of registration is, subject to

review, to make the determination binding upon the parties and

enforceable as an order of the Federal Court. Nothing that the

Federal Court does gives a determination the effect of an order. That

is done by the legislation operating upon registration. The result is

that a determination of the Commission is enforceable by execution

under s.53 of the Federal Court Act. It is the determination of the

Commission which is enforceable and it is not significant that the

mechanism for enforcement is provided by the Federal Court. The

situation stands in contrast to the situation which was superseded by

the 1992 amendments to the Racial Discrimination Act. Under the

earlier provisions, the Federal Court had to be satisfied of a breach

15. The Commonwealth, intervening, submitted that by virtue of the

review procedure provided by s.25ZAC the registration of a

determination is the commencement of proceedings in the Federal Court

so that if a determination becomes enforceable it is by reason of the

adjudication of the Federal Court, that being a court constituted in

accordance with Ch.III of the Constitution and capable of exercising

16. The plain answer to that submission is that a registered

determination may not be subjected to review but has effect as an

order of the court from the moment of registration. True it is that

it cannot be enforced pending the institution or completion of a

review, but it remains an order of the Court. The right to review is

exercisable only by a respondent to a determination. If he or she

fails to apply for review within 28 days, the determination becomes

enforceable forthwith. The Commonwealth sought to counter this answer

by submitting that the procedure is analogous to the entry of judgment

17. A judgment entered by default is nonetheless a judgment of the

court whose rules provide for such a course (80 See, e.g., Federal

Court Rules, O.11, r.23) . The circumstances in which judgment may be

entered are prescribed by the court itself and the process is one which

is commenced and brought to a conclusion in accordance with those

rules. The circumstances in which a determination may be made by the

Commission are prescribed by the Act and, except upon a review, the

Federal Court is precluded from any consideration of those

circumstances either upon the registration of a determination or in

relation to its enforcement. The determination remains the

determination of the Commission and in no sense becomes the

18. If the registration of a determination of the Commission cannot

be seen as the commencement of proceedings in the original

jurisdiction of the Federal Court, then the existence of the review

procedure does not bear upon the question whether the determination was

made in the exercise of judicial power. That is obvious in the case of

a determination for which no review is sought, but it is equally the

case where a review is sought. The existence or exercise of a right

of appeal from a decision made in the exercise of judicial power does

not convert that decision into one of an administrative kind (81 See

Harris v. Caladine [1991] HCA 9; (1991) 172 CLR 84 at 111 per Brennan J, 141 per

19. The way in which the Commonwealth sought to use the review

procedure was to say that its comprehensive nature was such as to

indicate that the jurisdiction of the Federal Court was original and

not by way of appeal. Because a determination might be registered and

enforced without recourse to review, that argument cannot succeed in

any event, but the review procedure, despite its name, does not

indicate a proceeding in the original jurisdiction of the Federal

Court. The Court "may" review all issues of law and fact but is not

required to do so. It would be unlikely to do so in the absence of

some specified ground for disturbing the Commission's determination.

Moreover, upon a review a party cannot adduce new evidence without the

leave of the Court. Whether "new evidence" is the same as fresh

evidence is not clear, but its exclusion points to a proceeding by way

of appeal - an appeal by rehearing and not de novo (82 ibid. at

124-126.) - rather than a proceeding in the original jurisdiction of

the Court. Thus the review procedure provided does not support the

suggestion that the registration of a determination of the Commission

is the commencement of a fresh proceeding in the Federal Court.

20. For these reasons, ss.25ZAA, 25ZAB and 25ZAC, which combine to

make a determination of the Commission binding, authoritative and

enforceable, invalidly purport to invest judicial power in the

Commission. Section 25ZC, which provides for financial or legal

assistance in review proceedings, is dependent for its application

upon s.25ZAC and must also fail. We would answer the question asked: