A reform agenda for federal discrimination laws December 2021 3.6 The ‘Brandy’ misconception This Position Paper also considers fundamental structural issues of the jurisdiction of the Commission itself, and the relationship of the Commission’s conciliation processes to the federal courts. A key moment in the development of federal discrimination law in Australia was the decision in Brandy v HREOC (Brandy),84 and the legislation introduced in consequence.85 Between 1986 and 2000, the Commission had an adjudicative function in unlawful discrimination matters, where such matters could not be resolved either at conciliation or by negotiation between the parties. The object of this second stage was to provide a forum other than litigation in court. As Professor Beth Gaze explained: Because of the public interest in protecting human rights it was thought better to have a less intimidating and expensive avenue for resolving discrimination matters than the normal court system, and the two-part structure of attempted conciliation and then a hearing before an informal, specialist tribunal was chosen.86 However, this meant that a complaint pathway could involve three stages: conciliation, a Commission determination after a hearing, and proceedings in the Federal Court to enforce the determination. This multiplication of processes led to criticism that the system was ‘inefficient and prone to exacerbate, rather than ameliorate, the distress of the complainant’.87 To address this, a process of registration in the Federal Court of determinations of the Commission under the Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act was introduced.88 Upon registration, a determination then had effect ‘as if it were an order made by the Federal Court’.89 This scheme was challenged in 1995 in Brandy and the High Court held that because the amendments purported to vest judicial power in the Commission, contrary to Chapter III, they were invalid.90 In terms of legal precedent, the Brandy decision has been frequently cited in subsequent cases concerning Chapter III of the Constitution and judicial power, particularly when considering issues of enforcement.91 In 1999, the Human Rights Legislation Amendment Act (Cth) was passed, coming into effect the following year, introducing a uniform scheme for complaint handling for unlawful discrimination matters under the Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act. The hearing/ determination function was removed from the Commission and, if conciliation was unsuccessful and the relevant complaint were ‘terminated’, an affected person could bring an unlawful discrimination case in the Federal Court.92 These amendments also marked the shift of the complaint-handling jurisdiction from the individual Commissioners to the President. The Discrimination Commissioners, the Human Rights Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner were also now given an amicus curiae function in certain proceedings before the Federal Court.93 This scheme continues to the present day and remains the contemporary basis for the bringing of an action for unlawful discrimination in the Federal Courts, applying to all of the federal Discrimination Acts.94 FREE AND EQUAL An Australian Conversation on Human Rights 41