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Submission to Court as Intervener and Amicus Curiae

Legal Legal
Friday 14 December, 2012


Submission to Court as Intervener and Amicus Curiae

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








  • 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



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

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
Racial Vilification

Submissions of the Disability Discrimination Commissioner

Provision of services and jurisdiction of the DDA

State qualifying body and jurisdiction of the DDA

Access to Premises
Assistance Animals
Application of the DDA
Standing under the DDA and HREOCA
Pre-employment medical testing
Access to Premises and Facilities

Submissions of the Sex Discrimination Commissioner

Marital Status Discrimination
Special Measures under the SDA
Part-time work and family responsibilities
Pregnancy Discrimination and voluntary bodies
'Sporting Activity'