December 2021 A reform agenda for federal discrimination laws Commentators have observed that the decision in Brandy was disrupting, far-reaching and prompted significant public debate about the Court’s rejection of a discrimination law scheme that had been considered relatively expeditious and cost-effective.95 The removal of the hearing/determination function from the Commission in the subsequent amendments has been described as ‘possibly the most contentious change’ effected in consequence.96 Moreover, the Brandy amendments went further than was necessary to address the issue of constitutional invalidity and a key part of the Commission’s powers was removed. This has had consequential impacts of a wide kind. Having confidence in discrimination law and its expectations has been a theme in submissions from duty-holders. Under the former model, Commission determinations provided a measure of certainty for complainants and respondents, which then informed the Commission’s ability to give guidance and improve community understanding – to generate the certainty that provides the necessary confidence for all involved. Determinations were made by a body that had clear expertise in human rights, and the public nature of determinations, as distinct from the confidential nature of conciliation, provided an additional source of clarity for the community about the operation of discrimination laws. Additionally, following the decision in Brandy, other agencies were not affected in the same way as the Commission. For example, the registration and enforcement provisions targeted in Brandy were mirrored in the Privacy Act at the time. Consequently, following Brandy, the Privacy Act also needed to be amended to respond to the High Court’s decision. However, the Australian Information Commissioner retains the power to investigate and make determinations on privacy complaints, where conciliation has not resolved the matter, and retains a mechanism to enforce these determinations in the federal courts.97 There are many federal agencies such as the Fair Work Commission, the Fair Work Ombudsman and the Office of the Australian Information Commissioner that have been conferred with determinative or regulatory powers. Like the Commission, these agencies are not ‘courts’ established under Chapter III of the Constitution. The amendments introduced in consequence of the Brandy decision have effectively stultified the regulatory role of the Commission – based on a misconception that such broad reform was necessary for constitutional reasons. It is time, in light of the significant expansion of lawful, regulatory powers exercised by comparable regulatory bodies at the federal level, to consider how the Commission could be a more effective agency. 42 FREE AND EQUAL An Australian Conversation on Human Rights