Submissions to Court as Intervener and Amicus Curiae
We have powers to intervene in certain matters before the court or to assist the court on points of discrimination law. Learn more about these roles.
Summary
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)
- 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 Commission has Guidelines for Interventions which are available here.
Cases the Commission has intervened in
The intervention power is to assist the court, and has been used by the Commission in several cases, including:
Criminal Law
| Issue | Case Name | Link to submissions |
|---|---|---|
Mandatory Sentencing | ||
Mandatory Sentencing | Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R [2013] NSWCCA 23 (NSW Court of Criminal Appeal) | Commission submissions [PDF] (369.29KB) |
Standards of detention for children | ||
Aboriginal customary law (group rights - article 27 ICCPR) v individual human rights and fundamental freedoms (freedom from violence and discrimination (CEDAW)) | ||
Right of a fair trial | ||
Challenge to s 133AB of the Police Administration Act (NT) - 'paperless arrest' process | North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 | (385.79 KB) |
Validity of warrant to raid journalist's home and official secrets offence | (1.06 MB) |
Native Title
| Issue | Case Name | Link to submissions |
|---|---|---|
Native Title | ||
Native Title |
Disability discrimination
| Issue | Case Name | Link to submissions |
|---|---|---|
Indirect discrimination in education | ||
Indirect discrimination in education | ||
Assistance Animals | Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 | |
Jurisdiction of State Tribunals when Federal defence raised | (682.24 KB) |
Employment Law
| Issue | Case Name | Link to submissions |
|---|---|---|
Meaning of 'inherent requirement' | ||
Occupational Health & Safety Issues | ||
Occupational Health & Safety Issues | ||
Domestic violence leave | 4 yearly review of modern awards – Family and Domestic Violence Leave Clause | (497.85 KB) (497.85 KB) |
Family Law
| Issue | Case Name | Link to submissions |
|---|---|---|
Right of transgender marriage | ||
Consent to surgical treatment by children | Re Michael: John Briton, Acting Public Advocate (Victoria) v GP & KP and HREOC (1994) FLC 92-486 | |
Authorisation of hormonal treatment for gender dysphoria | ||
Authorisation of hormonal treatment for gender dysphoria | ||
Authorisation of hormonal treatment for gender dysphoria | Re Alex: Hormonal Treatment For Gender Identity Dysphoria [2004] FamCA 2 | Family Court Summary Media Release Commission's submissions |
Authorisation of hormonal treatment for gender dysphoria | (451.64 KB) Commission supplementary submissions (576.99 KB) | |
Authorisation of hormonal treatment for gender dysphoria | ||
International surrogacy arrangements | ||
International surrogacy arrangements | (1.19 MB) | |
Proceedings involving child abduction cases | ||
Relocation of children and the Convention on the Rights of the Child | In the matter: of B and B: Family Law Reform Act 1995 (1997) No.TV 1833 | |
Sterilisation of young women with disabilities | ||
Sterilisation of young women with disabilities | P & P: In the matter of; Legal Aid Commission of New South Wales, Unreported, Moore J, 23 Sept 1994 | |
Sterilisation of young women with disabilities | ||
Sterilisation of young women with disabilities | ||
Sterilisation of young women with disabilities | ||
Artificial conception and definition of 'parent' for child support purposes |
Human Rights
| Issue | Case Name | Link to submissions |
|---|---|---|
Aboriginal Deaths in Custody | NT Coroners Court Inquest into the deaths of David Gurralpa and Robert Plasto-Lehner (2009) | |
Aboriginal Deaths in Custody | Coroners Court of Western Australia Inquest into the death of Mr Ward | |
Aboriginal Deaths in Custody | QLD Coronial inquest into the death of Mulrunji on Palm Island | Commission submissions seeking leave and concerning the scope of the inquest Commission submissions on the power of the Coroner to make comment |
Mental Illness and the Criminal Justice System: the rights to humane treatment in articles 7 and 10(1) of the ICCPR | Commission submission Commission's media release on the Coroner’s findings | |
International law and the extent to which administrative decision makers are obliged to take into account international human rights instruments in making decisions | Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 | |
Definition of slavery | ||
Freedom of political speech | ||
Criminalisation of homosexuality | ||
The right to life | ||
The right to life | ||
Gender identity recognition | ||
Right to adequate housing | (259.36 KB) | |
Freedom of speech by public servants | (668.04 KB) | |
Freedom of association | (1.13 MB) |
Race Discrimination
| Issue | Case Name | Link to submissions |
|---|---|---|
Race Discrimination | Joan Monica Maloney v The Queen | Commission submission |
Offensive behaviour based on racial hatred | Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 | Commission submission |
Alcohol restrictions - s 10 of the RDA | ||
Alcohol restrictions on Palm Island | Commission submission in Morton v Queensland Police Service D75/08 | |
Alcohol restrictions on Palm Island | ||
Harassment in employment and standard of proof | ||
CERD and the RDA - Defining racial discrimination and special measures | ||
Underpayment of Aboriginal Wages | ||
The interpretation of the race power in section 51(xxvi) of the Commonwealth Constitution | ||
Offensive behaviour based on racial hatred | Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 |
Refugee Law
| Issue | Case Name | Link to submissions |
|---|---|---|
Power to detain under s 196 of the Migration Act 1958 (Cth) | Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49 | |
Power to detain under s 196 of the Migration Act 1958 (Cth) | ||
Power to detain under s 196 of the Migration Act 1958 (Cth) | Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38 | |
Power to detain under s 196 of the Migration Act 1958 (Cth) | ||
Power to detain under s 196 of the Migration Act 1958 (Cth) | Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 | |
Power to detain under s 196 of the Migration Act 1958 (Cth) | Minister for Immigration, Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390 | |
Power to detain under s 196 of the Migration Act 1958 (Cth) | Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 | (1.23 MB) |
Section 474 ("the Privative Clause") of the Migration Act 1958 (Cth) | S134/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 1 | |
Section 474 ("the Privative Clause") of the Migration Act 1958 (Cth) | ||
Guardianship of unaccompanied children | ||
Access by people in detention to legal representatives | Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) (Federal Court) | |
Access by people in detention to legal representatives | Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Full Federal Court) | |
Continued detention after serving a criminal sentence and pending deportation | Ming Dung Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136 | |
Continued detention after serving a criminal sentence and pending deportation | Ming Dung Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 36 | |
Continued detention indefinitely where there is no real prospect of deportation | NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 | |
Rights of asylum seekers aboard the Tampa | ||
Rights of asylum seekers aboard the Tampa | ||
Rights of asylum seekers aboard the Tampa | ||
Applications for refugee status as a result of the one child policy of the Peoples Republic of China | C, L J & Z v Minister for Immigration and Ethnic Affairs, unreported, O'Loughlin J, 30 March 1995. | |
Applications for refugee status as a result of the one child policy of the Peoples Republic of China | ||
Assessment of "sur place" claims | ||
Refusal of protection visa on character grounds | (5.12 MB) (410.75 KB) | |
Assessment of protection claims of asylum seekers who missed application deadline | (1.04 MB) (930.54 KB) | |
Scope and validity of provisions of Maritime Powers Act 2013 (Cth) | CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 | (389.49 KB) |
Adverse security assessment by ASIO of person found to be a refugee | Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 | (389.49 KB) |
Malaysia solution case | Plaintiff M106/2011 v Minister for Immigration and Citizenship | (1.58 MB) |
Validity of visas granted to asylum seekers who arrived via Ashmore Reef | (477.98 KB) |
Sex Discrimination
| Issue | Case Name | Link to submissions |
|---|---|---|
Family and domestic violence | WA Coronial inquest into the death of Andrea Louise Pickett (heard 28 June 2012) | |
Sex-based insults and sexual harassment | Graincorp Operations Ltd v Stephen Markham (C2002/3380) AIRC (Heard 19 August 2002) | |
Access to IVF treatment | ||
Pay Equity for casual employees | ||
Parental Leave | ||
ACTU Family Provisions Test Case | ||
Jurisdiction to hear victimization claims as a civil matter | (472.69 KB) (340.22 KB) |
Information about the Amicus Curiae role
The Commissioners of the Australian Human Rights Commission have the function of assisting the Court 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 Court 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 Australian Human Rights Commission has produced Guidelines on Amicus interventions which are available 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 legal@humanrights.gov.au.
Cases where the Amicus Curiae function has been used
The amicus function is to assist the court, and has been used by Commissioners in several cases, including:
Submissions of the Aboriginal and Torres Strait Islander and Social Justice Commissioner
Issue | Case Name | Link to submissions |
|---|---|---|
Underpayment of Aboriginal Wages | Submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner on common difficulties facing Aboriginal witnesses |
Submissions of the Aboriginal and Torres Strait Islander and Social Justice Commissioner and Acting Race Discrimination Commissioner
Issue | Case Name | Link to submissions |
|---|---|---|
Underpayment of Aboriginal Wages | ||
Racial Vilification |
Submissions of the Disability Discrimination Commissioner
Issue | Case Name | Link to submissions |
|---|---|---|
Provision of services and jurisdiction of the DDA | Vijayakumar v Qantas Airways Limited [2008] FMCA 339 | |
State qualifying body and jurisdiction of the DDA | Darina Maslauskas v Queensland Nursing Council [2008] FMCA 216 | |
Access to Premises | ||
Assistance Animals | Submissions of the Acting Disability Discrimination Commissioner | |
Application of the DDA | Submissions of the Acting Disability Discrimination Commissioner (jurisdiction) Submissions of the Acting Disability Discrimination Commissioner (leave to appear) | |
Standing | Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 | Submission of the Acting Disability Discrimination Commissioner |
Pre-employment medical testing | Submissions of the Acting Disability Discrimination Commissioner | |
Access to Premises and Facilities | Access for All Alliance Inc v Hervey Bay City Council [2004] FMCA 915 | Submissions of the Acting Disability Discrimination Commissioner |
Submissions of the Sex Discrimination Commissioner
Issue | Case Name | Link to submissions |
|---|---|---|
Marital Status Discrimination | AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 | |
Special Measures under the SDA | Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250 | |
Part-time work and family responsibilities | Submissions by the Sex Discrimination Commissioner Supplementary submissions of the Sex Discrimination Commissioner | |
Pregnancy Discrimination and voluntary bodies | Submissions of the Sex Discrimination Commissioner | |
'Sporting Activity' | Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740 |