Amicus Submission (Ferneley case)

Outline of submissions of the Sex Discrimination Commissioner in Support of Application to Assist the Court as Amicus Curiae in the Ferneley Case

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

No. 1261 of 2001

BETWEEN:

HOLLY LOUISE FERNELEY Applicant

AND:

THE BOXING AUTHORITY OF NEW SOUTH WALES Respondent

AND: STATE OF NEW SOUTH WALES Second Respondent

Outline of submissions of the Sex Discrimination Commissioner in Support of Application to Assist the Court as Amicus Curiae

Notice of Motion

1. On 22 October 2001 the Sex Discrimination Commissioner ("the SD Commissioner") filed a Notice of Motion seeking to move the Court for orders that the SD Commissioner be granted leave to appear as amicus curiae in these proceedings, together with any consequential orders and directions. The Notice of Motion was supported by an affidavit of the SD Commissioner affirmed on 19 October 2001.

The amicus curiae function of the Sex Discrimination Commissioner

2. The determination of complaints of unlawful discrimination under the Sex Discrimination Act 1984 (Cth) ("the SDA") is vested in this Court under Part IIB, Division 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). Part IIB was introduced into the HREOC Act by the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth), which commenced on 13 April 2000.

3. The amendments to the HREOC Act provide an amicus function for the SD Commissioner in proceedings under Part II, Division 2. Section 46PV provides special-purpose Commissioners[1] with the function of assisting the Court as amicus curiae in:

(a) proceedings in which the special-purpose Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;

(b) proceedings that, in the opinion of the special-purpose Commissioner, have significant implications for the administration of the relevant Act or Acts;

(c) proceedings that involve special circumstances that satisfy the special-purpose Commissioner that it would be in the public interest for the special-purpose Commissioner to assist the court concerned as amicus curiae.

4. The function of assisting the Court as amicus curiae may only be exercised with leave of the Court: s 46PV(2).

Principles governing leave to assist the Court as amicus curiae

5. The role of amicus curiae, or "friend of the court", should be distinguished from the role of intervenor.[2] A friend of the court, unlike an intervenor, is not a party to the proceedings and is not bound by the outcome.[3] The discretion to grant leave to assist as amicus curiae is exercised on a different basis from that governing the allowance of intervention.[4]

6. The role of amicus curiae is traditionally limited to parties who have a genuine interest in the proceedings and who are able to assist the court on issues which may not otherwise have been brought to its attention. In Kruger v Commonwealth (which dealt with the removal of Aboriginal children), an application by the International Commission of Jurists to appear as amicus was refused by the High Court on the grounds that it had failed to show any greater interest than a mere desire to have the law declared in particular terms, and it had failed to show that the parties were unable or unwilling to assist the Court in arriving at the correct determination of the case.[5] In a similar vein, in Levy v State of Victoria, Brennan CJ made the following observations on the court's discretion to hear from an amicus[6]:

The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

7. The High Court has recognised that specialist organisations will have a broad interest and capacity to offer assistance:

[i]n many proceedings, especially in recent years, [the High Court] has granted leave to governmental and non-governmental organisations to make submissions as amici curiae where their interests have suggested a capacity to provide submissions from a specialised viewpoint, an industry perspective or in the public interest.[7]

part of [the High] Court's function is to declare the law for the nation and that means the Court has got to look at issues that go beyond, or sometimes, the particular parties[8]

8. The position at common law has been significantly modified by s 46PV of the HREOC Act. The legislation maintains the distinction between the function of intervenor (which is retained under s 11(1)(o) and s 31(j)) and the function of amicus curiae (under s 46PV). However, the conferring of a special amicus curiae function on Commissioners expressly recognises that, by reason of their special position, expertise and knowledge[9], each Commissioner will be of substantial assistance to the Court in determining the issues before it.

9. The amicus curiae provisions also expressly recognise that special-purpose Commissioners have a particular interest in the wider implications of issues arising before the Court. This was made clear in the Attorney-General's Second Reading speech to the legislation:

commissioners are to be given an amicus curiae function to argue the policy implications of their legislation before the Federal Court.[10]

10. The function of assisting the Court as amicus curiae comes into being when the special-purpose Commissioner forms a view that the conditions of s 46(PV)(1)(a)-(c) are met.

11. The exercise of the amicus curiae function may only take place with leave of the Court. This is confirmed by the Explanatory Memorandum, which provides:

Subsection (2) makes it clear that the Commissioner's function under this section may only be performed with the leave of the Court.[11]

12. The current legislative provision suggests that the common law requirements for the grant of leave to assist the Court as amicus curiae have been significantly modified. If the common law had not been modified there would have been no need to include s 46PV, which would be rendered otiose. The common law requirement of "particular interest" is now expressly recognised by the function of the special-purpose Commissioners. The Commissioners' broader policy imperatives, referred to in s 46PV(1)(a)-(c), are also expressly recognised by the provision. By their very nature these policy implications will not be of interest to, nor presented by, the parties to the litigation. Consequently, once the special-purpose Commissioner forms a genuine opinion as to the matters set out in s 46PV(1)(a)-(c), the requirements for the grant of leave to assist the Court as amicus curiae will be met.

13. The leave provision in s 46PV(2) recognises the role of the Court to protect and control its own procedures. It enables the Court to address practical considerations as to whether leave should be given in any particular case. For example, the following matters may be relevant to this issue:

(a) whether the parties have been given adequate notice of the application;

(b) whether the admission of an amicus would inappropriately expand the range of issues in dispute;

(c) whether the admission of an amicus would unduly lengthen the hearing;

(d) whether the admission of an amicus would impose an unacceptable costs burden on the parties;

(e) whether there would be any inappropriate detriment to any party as a result of the proposed amicus; and

(f) the scope, nature and form of the proposed amicus.

14. In determining whether to grant leave, it would be within the Court's discretion to impose conditions; for example, to:

(a) restrict the grant of leave to oral submissions only;

(b) restrict the grant of leave to written submissions only;

(c) restrict the time available for the presentation of oral submissions; or

(d) give consequential directions as to the order of submissions with rights to the parties to reply.

15. In summary, the creation by the legislature of a special function of amicus curiae presumes that, subject to the Court's discretion to protect and control its own processes, the special-purpose Commissioner has a particular interest in the subject matter of the litigation and the Court will be assisted by and should hear from the special-purpose Commissioner where the special-purpose Commissioner has formed the relevant views and opinions.

The present application

16. In the present proceedings the SD Commissioner has formed the opinion that the proceedings may raise issues relating to the scope, interpretation and application of the exemption provision in s 42 of the SDA, which provides:

(1) Nothing in Division 1 or 2 renders it unlawful to exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

(2) Subsection (1) does not apply in relation to the exclusion of persons from participation in:

(a) the coaching of persons engaged in any sporting activity; (b) the umpiring or refereeing of any sporting activity; (c) the administration of any sporting activity; (d) any prescribed sporting activity; or (e) sporting activities by children who have not yet attained the age of 12 years.

17.According to paragraph 6 of the Statement of Agreed Facts, the respondents' primary position is apparently that the functions performed by the Boxing Authority of NSW are not "services" within the meaning of s 22 of the SDA. However, the respondents' alternative position is that s 42 will operate so as to exclude its conduct from Part II, Divisions 1 and 2 of the SDA. Inevitably, therefore, the Court will be required to consider the operation of s 42.

18. The implication of the respondent's submission in paragraph 6 of the Statement of Agreed Facts is that s 42 of the SDA is to be interpreted broadly, so as to exempt from the operation of Part II, Divisions 1 and 2 any competitive sporting activity in which strength, stamina or physique is relevant. If this were to be accepted by the Court, women might lawfully be excluded from a wide range of competitive sporting activities where strength, stamina and physique are relevant.

19. The scope of s 42 of the SDA has yet to be considered by this Court or the High Court. However, analogous provisions in State and Territory anti-discrimination legislation[12] have been interpreted so as to apply only to competitive sporting activity as between the sexes.[13] The SD Commissioner takes the view that this is the correct interpretation of s 42.

20. The interpretation apparently suggested by the respondents would have significant human rights implications for women not only in relation to the sport of kickboxing, but also in relation to other competitive sporting activities which involve strength, stamina and physique. There is a need for this Court to clarify the scope of s 42. In a context "where large issues of legal principle and legal policy are at stake", the Court should "ensure that its eventual opinions on contested legal questions are informed by relevant submissions and enlivened by appropriate materials".[14]

21. It should also be noted that, in general terms, the objects of the SDA require a beneficial construction of the Act so as to eliminate discrimination.[15] Accordingly, exemptions and other provisions which restrict rights should be construed narrowly.[16]

22. In the present case, the SD Commissioner has particular experience and expertise in the issues likely to arise in relation to s 42. It is proposed that the SD Commissioner will assist the Court by filing written submissions, to be supplemented by oral submissions only if requested by the Court. In these circumstances, any cost to the parties or delay consequent on agreeing to hear from the SD Commissioner would not be disproportionate to the assistance which will be provided to the Court.[17]

23. Accordingly, it would be appropriate for the Court to receive amicus curiae assistance from the SD Commissioner.

25 October, 2001

Nicholas Poynder Frederick Jordan Chambers Counsel for the Sex Discrimination Commissioner

1.Which includes the Sex Discrimination Commissioner: s 46PV(3)(e)

2. See generally, discussion in United States Tobacco Co v Minister for Consumer Affairs and Others (1988) 83 ALR 79 at 93-98

3. See Australian Law Reform Commission Report No. 78, Beyond the door-keeper - Standing to sue for public remedies at para. 6.13

4. Levy v State of Victoria (1997) 189 CLR 579 per Brennan CJ at 604

5. Kruger v Commonwealth, unreported High Court transcript, 12 February 1996, per Brennan CJ; cited in Levy v State of Victoria (1997) 189 CLR 579 at 604, per Brennan CJ

6. Levy v State of Victoria (1997) 189 CLR 579 per Brennan CJ at 604-605 (footnotes omitted)

7. Attorney-General (Cth) v Breckler & Ors (1999) 197 CLR 83 at 134, per Kirby J

8. Superclinics Australia Pty Ltd v CES and Ors, unreported High Court transcript, 11 September 1996, per McHugh J

9. For example, s 96(2) of the SDA requires the Sex Discrimination Commissioner to have "appropriate qualifications, knowledge or experience"

10. Attorney-General (Mr Williams), Parliamentary Debates, House of Representatives Hansard, 3 December 1998 at 1276 (emphasis added)

11. Human Rights Legislation Amendment Bill 1998, Explanatory Memorandum, item 227 (emphasis added)

12. Anti-Discrimination Act 1977 (NSW), s & Equal Opportunity Act 1995 (Vic), s B Equal Opportunity Act 1984 (WA), s # Anti-Discrimination Act 1991 (Qld), s o Equal Opportunity Act 1984 (SA), s 0 Anti-Discrimination Act 1998 (Tas), s Anti-Discrimination Act 1992 (NT), s 8 Discrimination Act 1991 (ACT), s 41

13. South v Royal Victorian Bowls Association [2001] VCAT Ï Brook Robertson v Australian Ice Hockey Federation & Victorian Ice Hockey Association unreported, ADT of Vic (McKenzie P, 26 March 1998); Re Somers v Mountain District Netball Association (1998)14 VAR ë Jernakoff v WA Softball Association (Inc) (1999) EOC 92-ϕ Commissioner for Equal Opportunity v Parsons & Ors (1990) EOC 92-278

14. Levy v State of Victoria (1997) 189 CLR 579 at 651-652, per Kirby J

15. See s 15AA(1) of the Acts Interpretation Act 1901 (Cth). See also Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 and 41- 42 per Gummow J and 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J

16. See X v Commonwealth (1999) 200 CLR 177 at 233 per Kirby J; Qantas Airways Limited v Christie (1998) 193 CLR 280 at 333 and footnotes 168-169, per Kirby J

17. See Levy v State of Victoria, supra note 6

Last updated 7 January 2002.