COMMISSION
GUIDELINES FOR THE EXERCISE OF THE
AMICUS CURIAE FUNCTION UNDER THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT
1. These guidelines apply only to Federal Court proceedings under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOCA") as amended by the Human Righs Legislation Amendment Act (No 1) 1999 (Cth).
2. Under s.46PV of HREOCA, the Human Rights Commissioner, the Sex Discrimination Commissioner, the Disability Discrimination Commissioner, the Race Discrimination Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner are given the function of assisting the Federal Court or the Federal Magistrates Court where:
a. the Commissioner thinks the orders may affect to a significant extent the human rights of persons who are not parties to the proceedings; or
b. the proceedings, in the opinion of the Commissioner, have significant implications for the administration of the relevant Act/s; or
c. 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.
3. This function may only be exercised with the leave of the court.
4. In deciding whether to seek the leave of the court to appear as amicus, the Commissioner must be satisfied that one or more of the statutory requirements in s.46PV are met. Examples of cases in which the statutory requirements may be met include where a case involves a new area of the law; where a case would clarify a disputed interpretation of the law; where a case has significant ramifications beyond the parties to the proceedings or where a case may affect the human rights of a significant number of people.
5. In addition, in deciding whether to seek the leave of the court to appear as amicus in circumstances where one or more of the statutory requirements are met, the Commissioner shall have regard to the following factors:
i. Whether the court would be assisted by amicus and, in particular, whether the Commissioner will be able to raise issues not otherwise before the court or to offer a perspective not raised by the parties.
ii. Whether amicus would detract from the efficient conduct of the litigation.
iii. Whether the court has indicated that it would be assisted by amicus.
iv. Whether any party has requested the Commissioner to seek leave to appear as amicus and whether any party would oppose the application.
v. Whether any other person or organisation is seeking leave to intervene or appear as amicus.
vi. The reason the complaint was terminated. For example, it would be more likely that a termination under s. 46PH(1)(h) (matter of public importance) or (i) (no reasonable prospect of conciliation) would give rise to an application to be heard as amicus.
vii. Whether the matters sought to be put before the court will not otherwise be adequately and fully argued including whether the parties are represented
viii. Whether the issue is an interlocutory one or will result in a final determination.
ix. Whether the proceedings are in the Federal Court or the Federal Magistrates Court.
x. The resource implications of running the litigation.
xi. The integrity of the Commissioner's amicus role in the particular case and in future cases.
6. More than one Commissioner may seek leave to appear as amicus in relation to a proceeding (eg a proceeding involving both sex and race). In such a case Commissioners should give joint instructions and appear by the same person.
Notice of intention to seek leave to appear as amicus in the proceedings should be given to the parties prior to the hearing with an indication of the issues intended to be argued. In the event that a party then decides to fully raise or adopt the proposed issues, the Commission will only press its application if the party then decides not to argue those issues, or if the party particularly seeks the support of the Commission (in such cases submissions in written form may be sufficient).
Last updated 1 December 2001
