GUIDELINES FOR THE EXERCISE OF THE
AMICUS CURIAE FUNCTION UNDER
THE AUSTRALIAN HUMAN RIGHTS COMMISSION ACT
1. These guidelines
apply only to Federal Court proceedings under the Australian Human Rights Commission Act 1986 (Cth) ("AHRC Act") as
amended by the Human Rights Legislation Amendment Act (No 1) 1999 (Cth).
2. Under s.46PV of
AHRC Act, 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 as amicus curiae 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 curiae.
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 curiae, a Commissioner
(the "Proposed Amicus 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 curiae
in circumstances where one or more of the statutory requirements are met,
a Proposed Amicus Commissioner shall have regard to the following factors:
i. Whether the
court would be assisted by an amicus curiae and, in particular, whether
the Proposed Amicus Commissioner will be able to raise issues not otherwise
before the court or to offer a perspective not raised by the parties.
ii. Whether an
amicus curiae would detract from the efficient conduct of the litigation.
iii. Whether the
court has indicated that it would be assisted by an amicus curiae.
iv. Whether any
party has requested the Proposed Amicus Commissioner or a member of
the Commission to seek leave to appear as amicus curiae and whether
any party would oppose the application.
v. Whether any
other person or organisation is seeking leave to intervene or appear
as amicus curiae.
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 curiae.
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 Proposed Amicus Commissioner's amicus role in the particular
case and the integrity of the use of the amicus powers in future cases.
6. Having decided
that a particular set of proceedings meet the statutory requirements of
section 46PV and having had regard to the other factors outlined in paragraph
5 above, the Proposed Amicus Commissioner should consult with the Director
of the Legal Section, who will, after such consultation, assign a legal
officer to the matter.
7. The Legal Officer
will, in conjunction with the Proposed Amicus Commissioner and their unit,
draft a briefing paper to the other members of the Commission (including
the President) outlining the proposal to appear as amicus curiae.
8. The other Commissioners
(apart from the President) may then comment upon the proposal to appear
as amicus curiae. The Proposed Amicus Commissioner must consider any such
comments and must discuss with the relevant Commissioner(s) any concerns
9. By reason of the
complaint handling responsibilities of the President, the President must
not comment upon the specific circumstances of such proceedings. However,
the President may comment upon other matters, including, but not limited
i. the resource
implications of running the litigation;
ii. any other relevant
issues regarding the administrative affairs of the Commission;
iii. any broader
strategic issues; and/or
iv. any broader
issues relating to the role, function or reputation of the Commission.
The Proposed Amicus
Commissioner must consider any such comments and must discuss with the
President any concerns raised.
10. In addition,
the Proposed Amicus Commissioner must consider, at the earliest possible
opportunity, whether the issues raised by the parties to the litigation
are relevant to the portfolio of another Commissioner. If that is the
case, the Proposed Amicus Commissioner must, as soon as practicable, consult
with each other such Commissioner.
11. 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:
i. each such Commissioner
must be satisfied that the amicus role they propose to undertake meets
the statutory requirements of section 46PV and shall have regard to
the other factors outlined in paragraph 5 above; and
ii. the Commissioners
should give joint instructions and appear by the same person.
12. 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).
13. Notice of a Commissioner's intention to seek leave to as amicus curiae (and reasons why the Commissioner considers it reasonable to do so) must be given to the Attorney-General’s office and the Manager of the Human Rights Branch of the Attorney-General’s Department as soon as practicable after the Commissioner has decided to apply to be amicus curiae in the proceedings.
September 18, 2009