ºÚÁÏÇ鱨վ

Table of contents

• Information about the Intervention Role
• Information about the Amicus Curiae role
• Table of interventions made by the Commission since 1988:

(298 KB)

• Table of matters where the Commission has appeared as amicus curiae:

(86 KB)

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 ºÚÁÏÇ鱨վ 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.
• Access the detailed discussion of the Commission's role as an intervener (2001)

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

Criminal law

• Mandatory sentencing
  • (NSW Court of Criminal Appeal)

(369.29 KB)

• Standards of detention for children
  Coral Wilson v Joseph Michael Francis & Ian Johnson
• Aboriginal customary law (group rights - article 27 ICCPR) v individual human rights and fundamental freedoms (freedom from violence and discrimination (CEDAW))
  • • The Commission's submission
• Right of a fair trial
  
  • R v Cheung, Unreported, Badgery-Parker J, 26 November 1992
    
    • The Commission's submission
• Challenge to s 133AB of the Police Administration Act (NT) - 'paperless arrest' process

(385.79 KB)

• Validity of warrant to raid journalist’s home and official secrets offence

(1.06 MB)

Disability Discrimination

• Indirect discrimination in education
  
  • • The Commission's submission
  • 
    
    • The Commission's submission
• Assistance animals​
  • ​
    • The Commission's submission
• Jurisdiction of State Tribunals when Federal defence raised

(682.24 KB)

Employment Law

• Meaning of 'inherent requirement'
  
  • 
    
    • The Commission's submission
• Occupational Health & Safety Issues
  
  • 
    
    • The Commission's submission
  • 
    
    • The Commission's submission
• Domestic violence leave
  • 4 yearly review of modern awards – Family and Domestic Violence Leave Clause

(497.85 KB)

The Commission's reply submissions

(497.85 KB)

Family Law

• Right of transgender marriage
  
  • 
    
    • Outline of submissions of the Commission intervening before the Full Family Court in the "Kevin and Jennifer" case
    • Summary of the submissions of the Commission in Attorney-General for the Commonwealth v Kevin and Jennifer
• Consent to surgical treatment by children
  
  • 
    
    • The Commission's submission
• Authorisation of hormonal treatment for gender dysphoria
  
  • • The Commission's submissions   
  • • The Commission's submissions
  • • and
    • The Commission's submissions

(451.64 KB)

The Commission's supplementary submissions

(576.99 KB)

• International surrogacy arrangements
  • • The Commission's submission
  •  

(1.19 MB)

• Proceedings involving child abduction cases
  
  • 
    
    • The Commission's submission
    • Commission's submission on international comparative law
• Relocation of children and the Convention on the Rights of the Child
  
  • 
    
    • The Commission's submission
• 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
    • The Commission's submission
  • ;
    • The Commission's submission
  • ;
• Artificial conception and definition of 'parent' for child support purposes
  •  

Human Rights

• Aboriginal Deaths in Custody
  • NT Coroners Court Inquest into the deaths of David Gurralpa and Robert Plasto-Lehner (2009)
    • Commission's submission
  • Coroners Court of Western Australia Inquest into the death of Mr Ward
    • Commission's submission
  • • The Commission's submissions seeking leave and concerning the scope of the inquest
    • The Commission's submissions on the power of the Coroner to make comment
    • The Commission's final submissions
• Mental Illness and the Criminal Justice System: the rights to humane treatment in articles 7 and 10(1) of the ICCPR
  • • The Commission's submission
    • The Commission's media release on the Coroners findings
• International law and the extent to which administrative decision makers are obliged to take into account international human rights instruments in making decisions
  
  • 
    
    • The Commission's submission
• The definition of slavery
  • • The Commission's submission
• Freedom of political speech
  
  • 
    
    • The Commission's submission
• The criminalisation of homosexuality
  
  • 
    
    • The Commission's submission
• The right to life
  
  • • The Commission's Submission
  • Coronial Inquiry Ashmore Reef
    
    • The Commission's submission
• Gender identity recognition
  • 
    
    • The Commission's submission
• The right to adequate housing

(259.36 KB)

• Freedom of speech by public servants

(668.04 KB)

• Freedom of association

(1.13 MB)

Native Title

• .
  
  • The Commission's submission
• 
  
  • The Commission's submission

Race Discrimination

• Joan Monica Maloney v The Queen
• The Commission's submission
• Offensive behaviour based on racial hatred
• The Commission's Submission
• Alcohol restrictions - s 10 of the RDA
  • • The Commission's submission (2 July 2009)
• Alcohol restrictions on Palm Island
  • Commission's submission in Morton v Queensland Police Service D75/08. (3 October 2008)
  • • The Commission's submission
• Harassment in employment and standard of proof
  • • The Commission's principal submission
    • The Commission's submission in reply
• CERD and the RDA - Defining racial discrimination and special measures
  • • The Commission's submission
• Underpayment of Aboriginal Wages
  
  • • The Commission's submission
• The interpretation of the race power in section 51(xxvi) of the Commonwealth Constitution
  
  • 
    
    • The Commission's Submission
• Offensive behaviour based on racial hatred
  • • The Commission's Submission

Refugee Law

• Power to detain under s 196 of the Migration Act 1958 (Cth)
  
  • 
    
    • The Commission's Submissions
  • 
    
    • The Commission's Submissions
    • The Commission's Supplementary Submission
  • 
    
    • The Commission's submissions
  • 
    
    • The Commission's submission

(1.23 MB)

• Section 474 ("the Privative Clause") of the Migration Act 1958 (Cth)
  
  • 
    
    • The Commission's submission
  • 
    
    • The Commission's submission
• Guardianship of unaccompanied children
  
  • 
    
    • The Commission's submission
• Access by people in detention to legal representatives
  
  • 
    
    • The Commission's Submission
  • 
    
    • The Commission's Submissions
• Continued detention after serving a criminal sentence and pending deportation
  
  • 
    
    • The Commission's submission to Full Federal Court
    • The Commission's Further submissions to the Full Federal Court
• Continued detention indefinitely where there is no real prospect of deportation
• Rights of asylum seekers aboard the Tampa
  
  • 
    
    • The Commission's submission
  • 
    
    • The Commission's submission
  • 
    
    • The Commission's submission
• Applications for refugee status as a result of the one child policy of the Peoples Republic of China
  
  • 
    
    • The Commission's submission
• Assessment of "sur place" claims
  
  • The Commission's submission to the Refugee Review Tribunal in relation to s.91R(3) Migration Act 1958 and the assessment of "sur place" claims
• Refusal of protection visa on character grounds

(5.12 MB)

The Commission's reply submission

(410.75 KB)

• Assessment of protection claims of asylum seekers who missed application deadline

(1.04 MB)

The Commission's further submission

(930.54 KB)

• Scope and validity of provisions of Maritime Powers Act 2013 (Cth)
  • (High Court) 

(389.49 KB)

• Adverse security assessment by ASIO of person found to be a refugee

(389.49 KB)

• Malaysia solution case

(1.58 MB)

• Validity of visas granted to asylum seekers who arrived via Ashmore Reef

(477.98 KB)

Sex Discrimination

• Family and domestic violence
  
  •  
    • WA Coronial inquest into the death of Andrea Louise Pickett (heard 28 June 2012)
      
      • The Commission’s submission in PDF or Word
      • The Coroner’s findings in PDF
• Sex-based insults and sexual harassment
  
  • 
    
    • Outline of the Commission's submission
• Access to IVF treatment
  
  • 
    
    • The Commission's submission
• Pay Equity for casual employees
  
  • 
    
    • The Commission's submission
• Parental Leave
  
  • 
    
    • The Commission's submission
• ACTU Family Provisions Test Case
  
  • 
    
    • The Commission's Final Submissions
      
      • The Commission's Final Contentions
      • Submissions in Procedural Matters
• Jurisdiction to hear victimization claims as a civil matter

(472.69 KB)

The Commission's reply submission

(340.22 KB)

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Information about the Amicus Curiae role

The Commissioners of the ºÚÁÏÇ鱨վ 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

Access the detailed discussion of the Commission's role as amicus curiae.

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 ºÚÁÏÇ鱨վ at legal@humanrights.gov.au.

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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

• Giblet and others v Queensland QUD300/2005; 301/2005; 389/2005
  • Submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner on common difficulties facing Aboriginal witnesses (March 2007)
  • Outline of the submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (May 2006)
  • Court's decision:

Racial Vilification

• • Outline of submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (October 2003)

Submissions of the Disability Discrimination Commissioner

Provision of services and jurisdiction of the DDA

• Vijayakumar v Qantas (2008)
  • Outline of submissions of the Acting Discrimination Commissioner (22 February 2008)

State qualifying body and jurisdiction of the DDA

• Darina Maslauskas v Queensland Nursing Council (2008)
  • Outline of submissions of the Acting Discrimination Commissioner (18 February 2008)

Access to Premises

• Kenneth Webb v Child Support Agency
  • Outline of submissions of the Acting Discrimination Commissioner (21 May 2007)
  • Courts decision:

Assistance Animals

• Che Forest v Queensland Health, State of Queensland
  • Submissions of the Acting Disability Discrimination Commissioner (July 2005)
  • Court's decision:

Application of the DDA

• Clarke v Oceania Judo Union
  • Outline of submissions of the Acting Disability Discrimination Commissioner - on the issue of jurisdiction -
  • Outline of submissions of the Acting Disability Discrimination Commissioner - for leave to appear as amicus (February 2007)
  • Courts decision:

Standing under the DDA and HREOCA

• Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007)
  • Outline of submission of the Acting Disability Discrimination Commissioner
  • Court's decision: (2 May 2007)
  • Court's decision on costs: (29 June 2007)
  • Courts decision on amicus application: (5 September 2006)

Pre-employment medical testing

• Vickers v NSW Ambulance Service of NSW [2006] FMCA 1232
  • Decision:
  • Outline of submissions of the Acting Disability Discrimination Commissioner (July 2006)

Access to Premises and Facilities

• Access for all Alliance (Hervey Bay) Inc v Hervey Bay City Council (2004)
  • Decision: - Outline of submissions of the Acting Disability Discrimination Commissioner (May 2003)

Submissions of the Sex Discrimination Commissioner

Marital Status Discrimination

• AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071
  • Decision - - Outline of submissions of the Sex Discrimination Commissioner (August 2006)
  • Appeal decision:

Special Measures under the SDA

• Jacomb v Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1250
  • Decision - Outline of submissions of the Sex Discrimination Commissioner (April 2004)

Part-time work and family responsibilities

• Howe v Qantas Airways Limited [2004] FMCA 242
  • Decision:
  • Decision on costs and damages Outline of submissions by the Sex Discrimination Commissioner (April 2004)
  • Supplementary submissions of the Sex Discrimination Commissioner (June 2004)

Pregnancy Discrimination and voluntary bodies

• Gardner v AANA Ltd [2003] FMCA 81
  • Decision: - Outline of submissions of the Sex Discrimination Commissioner (February 2003)

'Sporting Activity'

• Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740
  • Decision: - Submission on Leave to Appear as Amicus Curiae (October 2001)
    - Submissions on substantive application (October 2001)