- Human Rights and Equal Opportunity Commission

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February 2006 page 39

Human Rights: Intervention powers of the Human Rights Commission

By JULIE O’BRIEN
Julie O’Brien is a senior lawyer at the Human Rights and Equal Opportunity Commission.

THE HUMAN RIGHTS AND Equal Opportunity Commission has a number of statutory powers enabling it to intervene in certain court proceedings. The Commission has been granted leave to appear as an intervener in more than 45 cases, including notably, Minister of State for Immigration and Ethnic Affairs v Teoh¹ and Minister for Immigration and Multicultural Affairs v Vadarlis² (the Tampa case).

This article outlines the intervention function of the Commission in terms of its legislative basis, the approach the Commission has taken in exercising this function, and examples of cases in which the Commission has been involved. It is important to raise awareness about this function, particularly in the legal community, as one of the main sources of information that the Commission has about forthcoming cases in which it may be able to seek leave to intervene is from the parties involved and/or their legal representatives.

Legislative basis of the intervention function

The Commission has a statutory function to intervene, with the leave of the court concerned, in proceedings that involve:

human rights;³
discrimination in employment or occupation (as the term ‘discrimination’ is defined in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act);⁴
racial discrimination;⁵
sex, marital status, pregnancy or potential pregnancy discrimination and sexual harassment;⁶
disability discrimination;⁷ and
age discrimination.⁸

The Commission principally relies on the intervention function in s.11(1)(o) of the HREOC Act which provides: “(1) The functions of the Commission are: ... (o) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues; ...”

The expression ‘human rights’ is defined at s.3(1) of the HREOC Act to mean those rights and freedoms recognised in the International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child,⁹ the Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of Disabled Persons, and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

Commission guidelines

The Commission has developed guidelines in order to consider appropriate cases for intervention. Any requests made to the Commission to intervene are considered by the Commission in accordance with these guidelines.¹⁰ Requests to the Commission are primarily made by a party to the proceedings and/or their legal representatives. At times, the Commission has been invited by judicial officers of the relevant court to consider exercising its intervention function in particular proceedings.

The Commission will consider seeking leave to intervene in cases where the human rights or discrimination issues are significant and central to the proceedings, and where these issues are not being addressed by the parties to the proceedings. The Commission may intervene in proceedings in a criminal or civil jurisdiction, although the majority of the Commission’s interventions have been in the civil jurisdiction. The Commission may intervene in first instance proceedings or proceedings on appeal. Most of the Commission’s interventions have been at the appellant level, by which time the factual dispute between the parties has been largely decided.

If the Commission decides to seek leave to intervene, it will endeavour to make its application to the Court at the interlocutory stage of the proceedings. This is not always possible and if, for example, the Commission is not aware of the proceedings at this early stage, or if the proceedings are before the High Court, the application will be made on the morning of the first day of the hearing. The Commission will provide the parties with notice of its intention to seek leave to intervene prior to the hearing, together with an indication of the intervention issues intended to be argued.

In proceedings where it has intervened, the Commission has relied on its specialist human rights knowledge and expertise to establish the requisite interest in the proceedings. The Commission has also been careful to choose proceedings which involve issues of general principle and public importance which may affect the human rights of persons who are not parties to the proceedings.

Examples of interventions

Most of the cases where the Commission has been granted leave to appear as intervener are available on the Commission’s website.¹¹ The cases cover a wide range of subject matters and jurisdictions including:

family law proceedings involving issues of consent to medical treatment by children, the sterilisation of young women with disabilities, and the right of people with a transsexual history to marry;
employment law proceedings involving sexual harassment, pay equity for casual and part-time employees, and family-friendly award provisions; and
refugee law proceedings involving issues including the power to detain under s.196 of the Migration Act 1958 (Cth), access by people in detention to legal representatives, applications for refugee status as a result of the one-child policy in China, and the rights of asylum seekers aboard the Tampa.