Submission to Court as Intervener and Amicus Curiae

 

Submission to Court as Intervener and Amicus Curiae

• Information about the Intervention Role
• Information about the Amicus Curiae role
• Table of interventions made by the Commission since 1988:

Table of Interventions as at March 2024.doc (298 KB)

• Table of matters where the Commission has appeared as amicus curiae:

Amicus Curiae List.doc (86 KB)

Information about the Intervention Role

The Commission has the power to intervene, with leave of the Court, in proceedings that involve issues of race, sex and disability discrimination, human rights issues and equal opportunity in employment. The power to seek leave to intervene is contained in:

• Racial Discrimination Act 1975 (Cth), s 20(1)(e)
• Sex Discrimination Act 1984 (Cth), s 48(1)(gb)
• Disability Discrimination Act 1992 (Cth), s 67(1)(l)
• Age Discrimination Act 2004 (Cth), s 53(1)(g)
• The Australian Human Rights Commission Act 1986 (Cth) s 11(1)(o) and s. 31(j)

When a relevant human rights or discrimination issue arises in a case and the Commission could provide expert assistance that would otherwise not be available to the Court, the Commission may seek leave of the Court to intervene in the proceedings. The Commission will then make submissions on the issues that relate to the Commission's powers.

• The Commission has Guidelines for Interventions which are available here.
• For a detailed discussion of the Commission's role as an intervener click here. (2001)

 

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The intervention power is to assist the court, and has been used by the Commission in several cases, including:

CRIMINAL LAW

• Mandatory sentencing
  • Magaming v The Queen [2013] HCA 40
    • The Commission's submissions  
  • Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R [2013] NSWCCA 23 (NSW Court of Criminal Appeal)

The Commission's submissions (369.29 KB)

• Standards of detention for children
  Coral Wilson v Joseph Michael Francis & Ian Johnson
• Aboriginal customary law (group rights - article 27 ICCPR) v individual human rights and fundamental freedoms (freedom from violence and discrimination (CEDAW))
  • The Queen v GJ [2005] NTCCA 20
    • The Commission's submission
• Right of a fair trial
  
  • R v Cheung, Unreported, Badgery-Parker J, 26 November 1992
    
    • The Commission's submission
• Challenge to s 133AB of the Police Administration Act (NT) - 'paperless arrest' process
  • North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 

The Commission's submissions (385.79 KB)

• Validity of warrant to raid journalist’s home and official secrets offence
  • Smethurst v Commissioner of Police (2020) 376 ALR 575

The Commission's submissions (1.06 MB)

DISABILITY DISCRIMINATION

• Indirect discrimination in education
  
  • Tiahana Hurst v State of Queensland [2006] FCAFC 100
    • The Commission's submission
  • Catholic Education Office & Anor v Clarke [2004] FCAFC 197 
    
    • The Commission's submission
• Assistance animals​
  • ​Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130
    • The Commission's submission PDF WORD
• Jurisdiction of State Tribunals when Federal defence raised
  • Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

The Commissions submission (682.24 KB)

EMPLOYMENT LAW

• Meaning of 'inherent requirement'
  
  • Qantas Airlines Limited v John Christie [1998] HCA 18
    
    • The Commission's submission
• Occupational Health & Safety Issues
  
  • Mount Isa Mines Ltd v Marks (1992) 35 FCR 96 
    
    • The Commission's submission
  • HREOC v Mount Isa Mines Limited; Lou Marks; Edward Emmett; Jennifer George and Ors and National Occupational Health And Safety Commission (1993) 118 ALR 80 (1993) 46 FCR 301
    
    • The Commission's submission
•  Domestic violence leave
  • 4 yearly review of modern awards – Family and Domestic Violence Leave Clause

The Commission's submissions (497.85 KB) The Commission's reply submissions (497.85 KB)

FAMILY LAW

• Right of transgender marriage 
  
  • The Attorney - General for the Commonwealth & "Kevin & Jennifer" & Human Rights and Equal Opportunity Commission [2003] FamCA 94
    
    • Outline of submissions of the Commission intervening before the Full Family Court in the "Kevin and Jennifer" case
    • Summary of the submissions of the Commission in Attorney-General for the Commonwealth v Kevin and Jennifer
• Consent to surgical treatment by children 
  
  • Re Michael: John Briton, Acting Public Advocate (Victoria) v GP & KP and HREOC (1994) FLC 92-486
    
    • The Commission's submission
• Authorisation of hormonal treatment for gender dysphoria
  
  • Re Jamie [2013] FamCAFC 110
    • The Commission's submissions  PDF  WORD
  • Re: Bernadette [2010] FamCA 9
    • The Commission's submissions
  • Re Alex: Hormonal Treatment For Gender Identity Dysphoria [2004] FamCA 2
    • Family Court Summary and Media Relea
    • The Commission's submissions
  • Re Kelvin [2017] FamCAFC 258 

The Commission's submissions (451.64 KB) The Commission's supplementary submissions (576.99 KB)

• Re: Imogen (No. 6) [2020] FamCA 761
• International surrogacy arrangements
  • Ellison & Karnchanit [2012] FamCA 602
    • The Commission's submission
  • Farnell & Anor and Chanbua [2016] FCWA 17 

The Commission's submission (1.19 MB)

• Proceedings involving child abduction cases 
  
  • ZP v PS (1994) 68 ALJR 554
    
    • The Commission's submission
    • Commission's submission on international comparative law
• Relocation of children and the Convention on the Rights of the Child
  
  • In the matter: of B and B: Family Law Reform Act 1995 (1997) No.TV 1833
    
    • The Commission's submission
• Sterilisation of young women with disabilities
  • Re Katie (1996) FLC 92-659;
  • P & P: In the matter of ; Legal Aid Commission of New South Wales, Unreported, Moore J, 23 Sept 1994
    • The Commission's submission
  • P v P; re Lessli (1995) FLC 92-615;
    • The Commission's submission
  • Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Re Marion No 1)
  • Re a Teenager (1988) 94 FLR 181;
• Artificial conception and definition of 'parent' for child support purposes
  • Bateman v Kavan [2014] FCCA 2521 

HUMAN RIGHTS

• Aboriginal Deaths in Custody
  • NT Coroners Court Inquest into the deaths of David Gurralpa and Robert Plasto-Lehner (2009)
    • Commission's submission
  • Coroners Court of Western Australia Inquest into the death of Mr Ward
    • Commission's submission
  • QLD Coronial inquest into the death of Mulrunji on Palm Island
    • The Commission's submissions seeking leave and concerning the scope of the inquest
    • The Commission's submissions on the power of the Coroner to make comment
    • The Commission's final submissions
• Mental Illness and the Criminal Justice System: the rights to humane treatment in articles 7 and 10(1) of the ICCPR 
  • NSW Coronial inquest into the death of Scott Simpson 
    • The Commission's submission
    • The Commission's media release on the Coroners findings
• International law and the extent to which administrative decision makers are obliged to take into account international human rights instruments in making decisions
  
  • Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
    
    • The Commission's submission
• The definition of slavery 
  • The Queen v Wei Tang [2008] HCA 39
    • The Commission's submission
• Freedom of political speech
  
  • Langer v Australian Electoral Commission (1996) 186 CLR 302
    
    • The Commission's submission
• The criminalisation of homosexuality
  
  • Croome & Toonen v State of Tasmania (1997) 71 ALR 397
    
    • The Commission's submission
• The right to life
  
  • Alice Springs Coronial Inquest into Petrol-Sniffing Deaths
    • The Commission's Submission
  • Coronial Inquiry Ashmore Reef
    
    • The Commission's submission
• Gender identity recognition
  • AB v Western Australia [2011] HCA 42
    
    • The Commission's submission
• The right to adequate housing
  • Chief Executive Officer (Housing) v Young [2022] NTCA 1 

The Commission's submission (259.36 KB)

• Freedom of speech by public servants 
  • Comcare v Banerji (2019) 372 ALR 42

The Commission's submission (668.04 KB)

• Freedom of association 
  • Tajjour, Hawthorne, Forster v NSW (2014) 254 CLR 508

The Commission's submission (1.13 MB)

NATIVE TITLE

• Ben Ward obo Miriuwung and Gajerrong Peoples & Ors v State of WA & Ors, High Court of Australia, 6 -16 March 2001.
  
  • The Commission's submission
• Between Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors, High Court of Australia, M128 of 2001
  
  • The Commission's submission

RACE DISCRIMINATION

• Joan Monica Maloney v The Queen

> The Commission's submission

• Offensive behaviour based on racial hatred

> Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307
> The Commission's Submission

• Alcohol restrictions - s 10 of the RDA
  • Aurukun Shire Council & Anor v. CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37
    • The Commission's submission (2 July 2009)
• Alcohol restrictions on Palm Island
  • Commission's submission in Morton v Queensland Police Service D75/08. (3 October 2008)
  • Morton v. Queensland Police Service [2009] QDC 233 
    • The Commission's submission
• Harassment in employment and standard of proof 
  • Qantas Airways Limited v Gama  - [2008] FCAFC 69
    • The Commission's principal submission
    • The Commission's submission in reply
• CERD and the RDA - Defining racial discrimination and special measures
  • Bropho v State of Western Australia [2008] FCAFC 100
    • The Commission's submission
• Underpayment of Aboriginal Wages
  
  • Baird v State of Queensland - [2006] FCAFC 162
    • The Commission's submission
• The interpretation of the race power in section 51(xxvi) of the Commonwealth Constitution
  
  • Kartinyeri v Commonwealth (1997) 152 ALR 540
    
    • The Commission's Submission
• Offensive behaviour based on racial hatred 
  • Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307
    • The Commission's Submission

REFUGEE LAW

• Power to detain under s 196 of the Migration Act 1958 (Cth)
  
  • Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49
    
    • The Commission's Submissions
  • Al-Kateb v Godwin [2004] HCA 37
  • Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38
  • Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36
    
    • The Commission's Submissions
    • The Commission's Supplementary Submission
  • Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70
    
    • The Commission's submissions
  • Minister for Immigration, Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390
    
    • The Commission's submission
  • Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 

The Commission's submission (1.23 MB)

• Section 474 ("the Privative Clause") of the Migration Act 1958 (Cth)
  
  • S134/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 1
    
    • The Commission's submission
  • NAAV v Minister for Immigration and Multicultural Affairs (No. N.265/2002) & NABE v Minister for Immigration and Multicultural Affairs (No.N282/2002)
    
    • The Commission's submission
• Guardianship of unaccompanied children
  
  • Odhiambo v Minister for Immigration & Multicultural Affairs and Martizi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 (20 June 2002)
    
    • The Commission's submission
• Access by people in detention to legal representatives 
  
  • Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) (Federal Court)
    
    • The Commission's Submission
  • Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Full Federal Court) 
    
    • The Commission's Submissions
• Continued detention after serving a criminal sentence and pending deportation 
  
  • Ming Dung Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136
  • Ming Dung Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 36
    
    • The Commission's submission to Full Federal Court
    • The Commission's Further submissions to the Full Federal Court
• Continued detention indefinitely where there is no real prospect of deportation
  • NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
• Rights of asylum seekers aboard the Tampa
  
  • Victorian Council for Civil Liberties Incorporated and Vadarlis v Minister for Immigration & Multicultural Affairs & Ors [2001] FCA 1297 (Federal Court)
    
    • The Commission's submission
  • Minister for Immigration & Multicultural Affairs & Ors v Vadarlis and VGCCL [2001] FCA 1329 (Full Federal Court)
    
    • The Commission's submission
  • Vadarlis v Minister for Immigration & Multicultural Affairs & Ors - Link to transcript of Application for Special Leave to High Court of Australia
    
    • The Commission's submission
• Applications for refugee status as a result of the one child policy of the Peoples Republic of China 
  
  • C, L J & Z v Minister for Immigration and Ethnic Affairs, unreported, O'Loughlin J, 30 March 1995.
  • Long Guan Chun, Li Liu Ying and Long Guan Juan v. Minister for Immigration, Local Government and Ethnic Affairs, Mr M.W. Gerkens and Human Rights and Equal Opportunity Commission (Intervener) Nos DG8, DG9 And DG10 of 1995 Fed No. 243/96 
    
    • The Commission's submission
• Assessment of "sur place" claims
  
  • The Commission's submission to the Refugee Review Tribunal in relation to s.91R(3) Migration Act 1958 and the assessment of "sur place" claims
• Refusal of protection visa on character grounds 
  • KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 

The Commission's submission (5.12 MB) The Commission's reply submission (410.75 KB)

• Assessment of protection claims of asylum seekers who missed application deadline
  • CLM18 v Minister for Home Affairs (2019) 272 FCR 639

The Commission's submission (1.04 MB) The Commission's further submission (930.54 KB)

• Scope and validity of provisions of Maritime Powers Act 2013 (Cth) 
  • CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 (High Court) 

The Commission's submission (389.49 KB)

• Adverse security assessment by ASIO of person found to be a refugee
  • Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 

The Commission's submission (389.49 KB)

• Malaysia solution case 
  • Plaintiff M106/2011 v Minister for Immigration and Citizenship

The Commission's submission (1.58 MB)

• Validity of visas granted to asylum seekers who arrived via Ashmore Reef
  • Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63

The Commission's submission (477.98 KB)

SEX DISCRIMINATION

• Family and domestic violence
  
  •  
    • WA Coronial inquest into the death of Andrea Louise Pickett (heard 28 June 2012)
      
      • The Commission’s submission in PDF or Word
      • The Coroner’s findings in PDF
• Sex-based insults and sexual harassment
  
  • Graincorp Operations Ltd v Stephen Markham (C2002/3380) AIRC (Heard 19 August 2002)
    
    • Outline of the Commission's submission
• Access to IVF treatment
  
  • Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex parte Attor [2002] HCA 16 (18 April 2002)
    
    • The Commission's submission
• Pay Equity for casual employees
  
  • AMWU v Gunn & Taylor (2002) EOC 93-22
    
    • The Commission's submission
• Parental Leave 
  
  • Federated Miscellaneous Workers Union of austral & Angus Nugent and Son Pty Ltd & Ors, Shop, Distributive and Allied Employees Association and Retail and Wholesale Shop Employees (ACT) Award 1983 (AIRC 773/1990 26 July 1990
    
    • The Commission's submission
• ACTU Family Provisions Test Case 
  
  • ACTU Family Provisions Test Case [2005] AIRC PR082005
  • Statement by the AIRC full bench
    
    • The Commission's Final Submissions 
      
      • The Commission's Final Contentions
      • Submissions in Procedural Matters
• Jurisdiction to hear victimization claims as a civil matter
  • Winters v Fogarty [2018] FCA 1669 

The Commission's submission (472.69 KB) The Commission's reply submission (340.22 KB)

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Information about the Amicus Curiae role

The Commissioners of the Australian Human Rights Commission have the function of assisting the Federal Court or Federal Magistrates Service as amicus curiae in discrimination matters. An amicus curiae is a "friend to the court" who assists the court on points of law in a particular case. Amicus are generally not parties to the proceedings, do not file pleadings or lead evidence and they may not lodge an appeal.

The Commissioners' amicus curiae function can only be exercised with the leave of the Federal Court or the Federal Magistrates Service where the Court is hearing an application alleging unlawful discrimination under Division 2, Part IIB of the Human Rights and Equal Opportunity Commission Act. The Commissioner/s may seek leave to appear as amicus where:

1. the Commissioner thinks the orders may affect to a significant extent the human rights of persons who are not parties to the proceedings; or

2. the proceedings, in the opinion of the Commissioner, have significant implications for the administration of the relevant Act/s; or

3. the proceedings involve special circumstances such that the Commissioner is satisfied that it would be in the public interest for the Commissioner to assist the Court as amicus.

The Human Rights and Equal Opportunity Commission has produced Guidelines on Amicus interventions which are available here

For a detailed discussion of the Commission's role as amicus curiae click here.

If you have a matter involving a discrimination or human rights issue which falls within the Guidelines and you believe that a Commissioner could assist the Court as amicus curiae please contact the Legal Section of the Australian Human Rights Commission at legal@humanrights.gov.au.

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The Amicus Curiae function has been used in the following cases:

Submissions of the Aboriginal and Torres Strait Islander and Social Justice Commissioner and Acting Race Discrimination Commissioner

Underpayment of Aboriginal Wages

• Giblet and others v Queensland QUD300/2005; 301/2005; 389/2005 
  • Submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner on common difficulties facing Aboriginal witnesses (March 2007)
  • Outline of the submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (May 2006)
  • Court's decision: http://www.austlii.edu.au/au/cases/cth/FCA/2006/537.html

Racial Vilification

• John Morris Kelly Country v Louis Beers [2004] FMCA 336
  • Outline of submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (October 2003)

Submissions of the Disability Discrimination Commissioner

Provision of services and jurisdiction of the DDA

• Vijayakumar v Qantas (2008) 
  • Outline of submissions of the Acting Discrimination Commissioner (22 February 2008)

State qualifying body and jurisdiction of the DDA

• Darina Maslauskas v Queensland Nursing Council (2008)
  • Outline of submissions of the Acting Discrimination Commissioner (18 February 2008)

Access to Premises

• Kenneth Webb v Child Support Agency
  • Outline of submissions of the Acting Discrimination Commissioner (21 May 2007)
  • Courts decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2007/1678.html

Assistance Animals

• Che Forest v Queensland Health, State of Queensland
  • Submissions of the Acting Disability Discrimination Commissioner (July 2005)
  • Court's decision: http://www.austlii.edu.au/au/cases/cth/FCA/2007/936.html

Application of the DDA

• Clarke v Oceania Judo Union
  • Outline of submissions of the Acting Disability Discrimination Commissioner - on the issue of jurisdiction -
  • Outline of submissions of the Acting Disability Discrimination Commissioner - for leave to appear as amicus (February 2007)
  • Courts decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2007/292.html

Standing under the DDA and HREOCA

• Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007)
  • Outline of submission of the Acting Disability Discrimination Commissioner
  • Court's decision: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/615.html (2 May 2007)
  • Court's decision on costs: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/974.html (29 June 2007)
  • Courts decision on amicus application: http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/1214.html (5 September 2006)

Pre-employment medical testing

• Vickers v NSW Ambulance Service of NSW [2006] FMCA 1232 
  • Decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2006/1232.html
  • Outline of submissions of the Acting Disability Discrimination Commissioner (July 2006)

Access to Premises and Facilities

• Access for all Alliance (Hervey Bay) Inc v Hervey Bay City Council (2004) 
  • Decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2004/915.html - Outline of submissions of the Acting Disability Discrimination Commissioner (May 2003)

Submissions of the Sex Discrimination Commissioner

Marital Status Discrimination

• AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071
  • Decision - http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/1071.html - Outline of submissions of the Sex Discrimination Commissioner (August 2006)
  • Appeal decision: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/140.html

Special Measures under the SDA

• Jacomb v Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1250 
  • Decision http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/1250.html - Outline of submissions of the Sex Discrimination Commissioner (April 2004)

Part-time work and family responsibilities

• Howe v Qantas Airways Limited [2004] FMCA 242 
  • Decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2004/242.html
  • Decision on costs and damages http://www.austlii.edu.au/au/cases/cth/FMCA/2004/934.html - Outline of submissions by the Sex Discrimination Commissioner (April 2004)
  • Supplementary submissions of the Sex Discrimination Commissioner (June 2004)

Pregnancy Discrimination and voluntary bodies

• Gardner v AANA Ltd [2003] FMCA 81
  • Decision: http://www.austlii.edu.au/au/cases/cth/FMCA/2003/81.html - Outline of submissions of the Sex Discrimination Commissioner (February 2003)

'Sporting Activity'

• Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740
  • Decision : http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1740.html - Submission on Leave to Appear as Amicus Curiae (October 2001)
    - Submissions on substantive application (October 2001)