Human Rights and Equal Opportunity Commission Website

THE INTERVENTION AND AMICUS CURIAE FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND ITS COMMISSIONERS [1] (2001)

Introduction

The Amicus Curiae Function of the Special - Purpose Commissioners

Background to the Amicus Role
Traditional role of theAmicus Curiae
The Legislative Basis of the Amicus Curiae Role
Commission Guidelines for the exercise of the Amicus Curiae Function
Case Study
What are the advantages of having an Amicus Curiae in your matter?
Applications for a Commissioner to appear as Amicus Curiae in a matter

The intervention function of the commission

Introduction
Commission Guidelines for the exercise the of the intervention function
Examples of Commission Interventions
Case Study
Applications for the Commission to appear as interveener in a matter

1. INTRODUCTION

The Human Rights and Equal Opportunity Commission ("the Commission") has a number of statutory powers enabling the Commission or individual Commissioners to play a role in certain court proceedings as an intervener or as an amicus curiae, that is, a friend to the court. The Commission has had the function of acting as an intervener in certain court proceedings since the Human Rights and Equal Opportunity Act 1986 (Cth) commenced on 10 December 1986. However, the amicus role given to each of the individual Commissioners of the Commission (referred to as "special purpose Commissioners") is a relatively recent one and was introduced by the Human Rights Legislation Amendment Act No. 1 1999 (Cth) ("the Amendment Act"), which was passed on 23 September 1999. The provisions of the Amendment Act that are relevant to this paper came into effect on 13 April 2000. Therefore, the special-purpose Commissioners have only had the role as potential amici for approximately 17 months.

The purpose of this paper is to discuss these separate functions in terms of their legislative basis, what approach the Commission has taken in exercising these functions, and examples of cases in which the Commission has been involved.

The Commission is keen to raise awareness about these functions, particularly in the legal community, as one of the main sources of information that the Commission has about upcoming cases in which it may be able to act as amicus or intervener is from the parties involved and/or their legal representatives.

2. THE AMICUS CURIAE FUNCTION OF THE SPECIAL-PURPOSE COMMISSIONERS

2.1 BACKGROUND TO THE AMICUS ROLE

Before discussing the current amicus curiae role of the Commissioners, it is useful to provide a brief summary of the position prior to this function being introduced.

The Commission administers three anti-discrimination statutes - the Racial Discrimination Act 1975 (Cth) ("RDA"), the Sex Discrimination Act 1984 (Cth) ("SDA") and the Disability Discrimination Act 1992 (Cth) ("DDA"). The functions and powers of the Commission are set out in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOCA").

Prior to 13 April 2000, the date that the Amendment Act came into effect, each of the RDA, SDA and DDA contained their own provisions concerning the investigation and conciliation of complaints. This role was the responsibility of the respective portfolio Commissioners, that is, the Race Discrimination Commissioner, Sex Discrimination Commissioner and the Disability Discrimination Commissioner. If a matter could not be conciliated, the relevant Commissioner could refer the complaint for a hearing before the Commission, which was usually constituted for these purposes by a part-time hearing Commissioner.

The Amendment Act brought about the following changes:

repealed the complaint handling provisions from the RDA, SDA and DDA and placed a uniform scheme in the HREOCA;
removed the Commission's hearing function and provide complainants with access to the Federal Court and Federal Magistrates Service;
vested the President with responsibility for managing the administrative affairs of the Commission;
vested the President with responsibility for complaint handling under the human rights and discrimination legislation;
removed the right for internal review by the President over matters terminated by reason of, for example, their being out of time or being lacking in substance, and provided complainants with access to the Federal Court and Federal Magistrates Service; and
provided the Commissioners with an amicus curiae function in relation to proceedings in the Federal Court and in the Federal Magistrates Service.

2.2 TRADITIONAL ROLE OF THE AMICUS CURIAE

The traditional role of an amicus curiae under the common law may be summarised as follows:

an amicus curiae is a 'friend to the court' whose role had traditionally been to ensure that the court "is properly informed of matters which it ought to take into account in reaching its decision. Particularly is this so in judgments which may affect the community generally or persons other than the parties who are before it".[2] An amicus may be heard if "good cause" is shown for doing so and if the court thinks it proper." [3]
The common law test in relation to the role of amici was enunciated by Brennan CJ in Levy v State of Victoria & Ors [4]. His Honour said that: "The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted." [5]
Usually an amicus does not play an adversarial part in the proceedings but appears to assist the court on particular points of law in a way that the court would not otherwise have been assisted.
Amici are not parties to the proceedings, do not file pleadings or lead evidence and may not lodge an appeal.
The costs position in relation to amici is not entirely clear [6]. The general position appears to be that a costs order would not be made against an amicus and an amicus would have to bear its own costs. However, the courts have indicated that the abuse of an appearance or the unnecessary protraction of the proceedings may lead to an adverse costs order against an amicus.

2.3 THE LEGISLATIVE BASIS OF THE AMICUS CURIAE ROLE

Under the HREOCA, the amicus curiae function applies only in those matters in which a complaint alleging unlawful race, sex or disability discrimination has been terminated by the President of the Commission [7] and where the Federal Court or Federal Magistrates Service is subsequently hearing the application.[8]

Section 46PV of the HREOCA (as amended by the Amendment Act) provides that the Aboriginal and Torres Strait Islander Social Justice Commissioner, Disability Discrimination Commissioner, Human Rights Commissioner, Race Discrimination Commissioner and Sex Discrimination Commissioner have the function of assisting the Federal Court or Federal Magistrates Court as amicus curiae where, in the opinion of the special-purpose Commissioner:

the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings; or
the proceedings have significant implications for the administration of the relevant Act/s; or
the proceedings involve special circumstances that satisfy the special-purpose Commissioner that it would be in the public interest for the special-purpose Commissioner to assist the Court.

The function may only be exercised by leave of the Court [9]

As the amicus function is a relatively new function, neither the Federal Court not the Federal Magistrates Service have been called upon yet to determine the scope of section 46PV and/or the preconditions to the granting of leave to a special-purpose Commissioner.

The Commission has taken the following view about the statutory provision:

the particular statutory scheme created by section 46PV obviates the need for the special-purpose Commissioner to satisfy the common law requirements applicable to amicus curiae, namely, expertise, interest [10] and an ability to assist the Court in arriving at the correct determination of the case.
The requirement for the leave of the court in section 46PV(2) attaches only to the exercise or performance of the function and not to its existence. The section conditions the performance of the function on the granting of the Court's leave in order to ensure that the Court retains control over its own procedures.
The conferring of this function on the special-purpose Commissioners is a recognition of the special position, expertise and knowledge of the Commissioners and that they will be of assistance to the Court in determining cases before it. The applicable legislation established the relevant Commissioner as an expert in his or her particular field [11] and gives the Commission of which he or she is a member a range of pertinent functions.
This construction is also supported by the extrinsic material. The Attorney-General stated in his Second Reading Speech that the new legislative scheme gives the special-purpose Commissioners "an amicus curiae function to argue the policy imperatives of their legislation before the Federal Court" [12]. Thus, it can be argued that it was the clear intention of Parliament that the special-purpose Commissioner will have a role in ensuring that the Court is appraised of relevant policy considerations and in assisting the Court in the interpretation of the relevant piece of legislation.

These views have yet to be tested before a court and it remains to be seen what view the Courts will take as to the standing of the special-purpose Commissioners.

2.4 COMMISSION GUIDELINES FOR THE EXERCISE OF THE AMICUS CURIAE FUNCTION

The Commission has developed guidelines to assist in the determination of appropriate cases in which to seek leave to appear as amicus curiae for the exercise of the amicus curiae function. These are publicly available on the Commission's web site at: http://www.humanrights.gov.au/about_the_commission/functions/amicus_guidelines.html

The guidelines are as follows:

1. These guidelines apply only to Federal Court proceedings under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOCA") as amended by the Human Rights Legislation Amendment Act (No 1) 1999 (Cth).

2. Under s.46PV of HREOCA, 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 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.

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, the 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 in circumstances where one or more of the statutory requirements are met, the Commissioner shall have regard to the following factors:

i. Whether the court would be assisted by amicus and, in particular, whether the Commissioner will be able to raise issues not otherwise before the court or to offer a perspective not raised by the parties.

ii. Whether amicus would detract from the efficient conduct of the litigation.

iii. Whether the court has indicated that it would be assisted by amicus.

iv. Whether any party has requested the Commissioner to seek leave to appear as amicus and whether any party would oppose the application.

v. Whether any other person or organisation is seeking leave to intervene or appear as amicus.

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.

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 Commissioner's amicus role in the particular case and in future cases.

6. 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 Commissioners should give joint instructions and appear by the same person.

7. 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).

In addition to these guidelines, the special-purpose Commissioners also consider a number of practical issues when considering whether to seek leave to appear as amicus. These include:

The resource implications for the Commission of the proposed amicus role;
The degree of the Commissioners involvement in the proceedings, that is, whether it would be appropriate to file only written submissions or whether submissions should be limited to a particular aspect of the matter;
Whether the Commissioner is able to supplement, rather than repeat, submissions made in an earlier amicus role; and
The risk of a costs order against the Commission

To date, a special-purpose Commissioner has sought leave to appear as amicus in one matter. In this matter, the Sex Discrimination Commissioner sought the leave of the Federal Court to appear as amicus curiae in a case involving "indirect sex discrimination". The applicant in this case alleged that a large corporation had a policy prohibiting part-time work. She asserted that this policy disadvantaged women because they were more likely to need to work part-time than men as women still have primary responsibility for caring for children in our society. This matter settled prior to the Court determining the Commissioner's application to appear as amicus.

2.5 CASE STUDY

To illustrate how a special-purpose Commissioner could assist the court and the parties by appearing as amicus curiae, a consideration of the following case study may be useful.

FACTS

Michelle was employed as a personal assistant in a large corporation, Bigcorp. She became pregnant and went on 12 months maternity leave. Near the end of those 12 months Michelle formed the view that she would not be able to re-commence full-time work and continue to meet her family responsibilities. She requested that Bigcorp permit her to return to her old position, or to any other equivalent position, on a part-time basis. Bigcorp advised Michelle that there were no part-time positions available in the company and Michelle resigned.

Michelle lodged a complaint with the Commission alleging indirect discrimination on the basis of her sex and direct discrimination on the basis of her family responsibilities under the Sex Discrimination Act 1984 (Cth). The complaint was ultimately terminated by the President on the basis that the matter could not be conciliated (pursuant to section 46PH of the HREOCA).

Michelle has now filed an application in the Federal Court. Michelle alleges that Bigcorp has a policy prohibiting part-time work and that this policy disadvantages women. She alleges that women are disadvantaged because women still have primary responsibility for caring for children in our society and are therefore more likely to need to work part-time than men. Michelle also alleges that this policy prohibiting part-time work was not reasonable in the circumstances. That is, it was not reasonable for a company the size of Bigcorp to refuse to create part-time or job-share positions for women with family responsibilities who hold generic positions.

WHY WOULD A SPECIAL-PURPOSE COMMISSIONER CONSIDER SEEKING LEAVE TO APPEAR AS AMICUS IN THIS CASE?

Proceedings of the kind described in the case study may be considered by the relevant Commissioner, namely the Sex Discrimination Commissioner, to be appropriate proceedings in which to seek the court's leave to appear as amicus curiae for the following reasons:

Proceedings of this nature would also have significant implications for the interpretation, application and administration of the SDA. The issues that might be raised before the Court could include:

Whether a general policy of an employer that part-time work is not allowed is discriminatory;
Whether there is an obligation on an employer to provide part-time work for employees where a position can be performed part-time or in a job share capacity;
The interpretation of the various components of "indirect discrimination" under section 5(2) of the SDA ;[13]
Whether such a requirement to work full-time has the effect of disadvantaging women; and
What may amount to 'reasonableness' in the context of the imposition of a practice, requirement or condition that an employee work full-time.

There have been very few cases involving indirect sex discrimination before the Commission, State and Territory anti-discrimination boards and the Federal Court or Federal Magistrates Service;
The facts of this case raise issues of broad and general importance about the human rights of women who, by reason of their family responsibilities, require part-time employment; and
The Sex Discrimination Commissioner would be able to raise issues not otherwise before the court and offer a perspective not presented by the parties.

HOW THE SEX DISCRIMINATION COMMISSIONER COULD ASSIST IN THIS CASE

The Sex Discrimination Commissioner could be of considerable assistance to the court and to the parties in resolving the issues before it by:

Providing extrinsic material, relevant domestic and international case law and journal articles in relation to interpretation and application of the provisions of the SDA;
Providing statistical material and related research and commentary on whether a policy which prohibits part-time work has the effect of disadvantaging women.
Drawing on the work of previous Sex Discrimination Commissioners, and their consultations and research surrounding issues of women's participation in the labour force. Previous Sex Discrimination Commissioners have undertaken the following activities in relation to the issues of pregnancy, family responsibilities and sex discrimination in the workplace that are of particular relevance:
- Sex Discrimination Commissioners have appeared before Parliamentary Committees examining issues affecting sex discrimination. Previous Sex Discrimination Commissioners have provided governments with written submissions on legislative and policy proposals that have implications for family responsibilities and sex discrimination in the workplace;
- The previous Sex Discrimination Commissioner, on reference from the Attorney-General, undertook a National Inquiry into Pregnancy and Work involving extensive consultation and research which resulted in the publication of the Commission Report, Pregnant and Productive: It's a right not a privilege to work while pregnant, 1999;
- Sex Discrimination Commissioners have engaged in discussions and the provision of advice to government, industry, trade unions, community groups and individual members of the public; and
- Sex Discrimination Commissioners have intervened on behalf of the Commission in industrial relations tribunals in cases which have implications for women, including the NSW Pay Equity Inquiry (NSW Industrial Relations Commission) and a test case concerning casual work (Australian Industrial Relations Commission).

2.6 WHAT ARE THE ADVANTAGES OF HAVING AN AMICUS CURIAE IN YOUR MATTER?

In appropriate cases, there are many advantages that flow to the court and to the parties from the appearance of a Commissioner as amicus curiae. Such an appearance may:

enable the parties to concentrate on the factual and legal matrix within their normal area of expertise while the Commissioner uses his/her expertise and resources to place, where relevant, broader legal and policy considerations before the court;
ensure that the court is aware of the broader implications of the issues raised in the proceedings;
assist the parties to focus on the issues and ultimately resolve the dispute, and
benefit the development of a body of anti-discrimination jurisprudence which accords with, and enhances, the objects of each of the Commonwealth anti- discrimination acts.

2.7 APPLICATIONS FOR A COMMISSIONER TO APPEAR AS AMICUS CURIAE IN A MATTER

The Commissioners do not have a "watching brief" over all matters before the Federal Court and Federal Magistrates Service. However, the Commission has an agreement with the respective Courts that it be provided with a copy of each application when it is filed. Often, however, the Commission does not receive the affidavit that is required to be filed by the applicant along with the application and even when it is, it is often difficult to ascertain the full range of issues raised in a case from these materials.

The Commission therefore relies to a great extent on the parties or their representatives to draw to its attention appropriate matters for amicus curiae intervention. The Legal Section of the Commission can be contacted to discuss whether a matter may be an appropriate one for one of the special-purpose Commissioners to apply to appear as amicus. Prior to contacting the Commission, the parties or their solicitors should have:

obtained details of the nature and history of the proceedings (including a copy of all documents filed in the proceedings), and
the next court date; and
considered why the matter satisfies the statutory requirements of section 46PV(1), and why the matter falls within the Commission Guidelines for the Exercise of the Amicus Curiae function.

3. THE INTERVENTION FUNCTION OF THE COMMISSION

3.1 INTRODUCTION

As mentioned at the beginning of this paper, the Commission's intervention has existed since the HREOC commenced in 1986. The Commission has the function of intervening in court proceedings involving:

human rights issues ;[14]
proceedings involving discrimination in employment or occupation [15] (as the term "discrimination" is defined in section 3(1) of the HREOCA [16]);
racial discrimination issue ;[17]
issues of discrimination on the ground of sex, marital status, pregnancy or potential pregnancy or discrimination involving sexual harassment [18]; and
issues of discrimination on the ground of disability[19] .

The Commission mainly relies on the intervention function in section 11(1)(o) of the HREOCA (which is similarly worded to the other intervention functions mentioned above) which provides as follows:

Section 11 of HREOCA
(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; …

Therefore, unlike the amicus function, the intervention function is that of the Commission as a whole, and does not rely on proceedings being lodged in the Federal Court or Federal Magistrates Service alleging unlawful discrimination under the RDA, SDA or DDA. Instead, the Commission can seek leave to intervene in proceedings involving "human rights issues". "Human rights" is defined in section 3(1) of the HREOCA as meaning those rights and freedoms recognised in the:

International Covenant on Civil and Political Rights;
Declaration on the Rights of the Child (now superseded by the Convention on the Rights of the Child);
Declaration on the Rights of Mentally Retarded Persons;
Declaration on the Rights of Disabled Persons; and
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief

As mentioned above, the power under section 31(j) of the HREOCA to seek leave to intervene in relation to proceedings involving discrimination in employment or occupation is limited to the definition of "discrimination" is section 3(1) of the HREOCA. The grounds of discrimination encompassed by this section are race, colour, sex, religion, political opinion, national extraction or social origin [20] , as well as age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference and trade union activity [21] .

The Commission may intervene in court proceedings in a criminal or civil jurisdiction, although the majority of the Commission's interventions have been in the civil jurisdiction.

3.2 COMMISSION GUIDELINES FOR THE EXERCISE OF THE INTERVENTION FUNCTION

The Commission has developed the following guidelines in order to consider appropriate cases for intervention. These guidelines are publicly available on the Commission's web site at: http://www.humanrights.gov.au/legal/interventions_in_court_proc.html

The Commission may intervene in court proceedings in a criminal or civil jurisdiction subject to the following guidelines:

1. The Commission may intervene in any case in which its intervention is sought or required by the courts.

2. The proceedings should involve the rights of one or more persons who are within the jurisdiction of an Australian court, or in a foreign court with a connection to Australian jurisdiction.

3. The proceedings must involve "intervention issues". These are issues of:

(a) human rights (as defined in the Human Rights and Equal Opportunity Commission Act 1986 (Cth));
(b) discrimination in employment (as defined in the Human Rights and Equal Opportunity Commission Act and the Industrial Relations Reform Act 1993 (Cth)),.
(c) racial discrimination (as defined in the Racial Discrimination Act 1975 (Cth));
(d) discrimination on the ground of sex, marital status, pregnancy or family responsibilities or discrimination involving sexual harassment (as defined in the Sex Discrimination Act 1984 (Cth)); or
(e) discrimination on the ground of disability (as defined in the Disability Discrimination Act 1992 (Cth)).

4. The intervention issues should be significant and not peripheral to the proceedings.

5. The Commission should put the intervention issues before the court only if these issues are not proposed to be put before the court by the parties to the proceedings or not adequately or fully so argued.

6. Notice of the Commission's intention to seek leave to intervene (and reasons why the Commission 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 Commission has decided to apply to intervene in the proceedings.

7. Notice of intention to seek leave to intervene in the proceedings should be given to the parties prior to the hearing with an indication of the intervention issues intended to be argued. in the event that a party then decides to fully raise or adopt the proposed intervention issues, the Commission will only press its application to intervene if the party then decides not to argue those proposed intervention issues, or if the party particularly seeks the support of the Commission (in such cases submissions in written form may be sufficient).

3.3 EXAMPLES OF COMMISSION INTERVENTIONS

In proceedings where it has intervened, the Commission has relied heavily on its specialist human rights knowledge and expertise to establish the requisite interest in the proceedings. It has also been careful to choose proceedings which involve issues of general principle and public importance which may affect to a significant extent persons other than the parties before it.

The Commission has sought and been granted leave to appear as intervener (and in one matter as amicus curiae in the common law sense) in approximately 22 cases. These cases have involved a wide range of matters and include the following:

Family law proceedings involving issues of consent to surgical treatment by children [22] and sterilisation of young women with disabilities [23];
Proceedings involving child abduction cases [24] and the relevance of the Convention on the Rights of the Child in relation to relocation of children [25];
International law and the extent to which administrative decision makers are obliged to take into account international human rights instruments in making decisions [26];
Immigration cases including access by people in detention to legal representatives [27], applications for refugee status as a result of the one child policy of the Peoples Republic of China [28] ;
Freedom of political speech [29];
General human rights issues including the inconsistency between State and Federal legislation in relation to the criminalisation of homosexuality [30], and the interpretation of the race power in section 51(xxvi) of the Commonwealth Constitution [31]; and
Native title [32].

3.4 CASE STUDY

The Commission most recently sought leave to intervene in the matter of Ming Dung Luu v Minister for Immigration and Multicultural Affairs [33] and provides a useful example of the Commission's intervention function.

FACTS

Mr Ming Dung Luu was the subject of a deportation order made by the Minister following his conviction on a serious assault charge. Mr Luu was sentenced by the Victorian County Court to a maximum of three years and six months imprisonment in relation to that charge. After being paroled (on 18 June 1997), Mr Luu was placed in immigration detention pending his deportation. The Department of Immigration and Multicultural Affairs determined that Mr Luu should be detained in a maximum security prison rather than in an immigration detention centre.

Mr Luu has been held in a maximum security prison for four years since he was paroled.
Mr Luu sought to have the Minister exercise his discretion under section 253(9) of the Migration Act 1958 Cth to release him or, alternatively, revoke the original deportation order. After Mr Luu commenced Court proceedings in the Federal Court, the Minister determined not to exercise his power to release Mr Luu or revoke the deportation order. Mr Luu sought judicial review, under the Administrative Decisions (Judicial Review) Act 1977 Cth, of that decision (and certain other matters).

HOW DID THE COMMISSION BECOME AWARE OF THE MATTER?

The Legal Section of the Commission was contacted by the legal representative of Mr Luu and informed of the proceedings commenced by Mr Luu in the Federal Court. The decision to seek leave to intervene was assessed pursuant to the Commission's guidelines for intervention. The Commission decided it would seek leave. It filed a notice of motion and an affidavit by the Human Rights Commissioner setting out the basis for the Commission's proposed intervention. Both parties ultimately consented to the Commission's proposed intervention and leave was formally granted by the Court on 6 June 2001 by way of written and oral submissions. It was represented by counsel and the Legal Section of the Commission acted as instructing solicitors.

THE COMMISSION'S SUBMISSIONS

The Commission's submissions focussed on the following points regarding the Minister's decision not to exercise his power under section 253(9) of the Migration Act:

The Commission submitted that the Minister was bound to take into account relevant norms derived from international law in making his decision. The Commission contended that such a requirement flowed from the purposes of the power conferred by section 253(9), which include the prevention of "injustice" to deportees. The Commission argued that international norms play a key part in identifying such injustice. In that regard, the Commission submitted that the Minister should have considered Australia's obligations under articles 9(1), 10 and 26 of the International Covenant on Civil and Political Rights (the "ICCPR") for the purposes of the decision. In particular, the Commission submitted that the Minister was bound to consider article 9(1) of the ICCPR (which proscribes arbitrary detention).
The Commission contended that the Minister failed to consider Australia's obligations under those articles of the ICCPR.
The Commission further contended that that omission was significant by reason of the fact that the circumstances of Mr Luu's detention involved breaches by Australia of its international obligations under those articles. The Commission submitted that those matters vitiated the validity of the Minister's decision.
As a further or alternative argument, the Commission contended that the Minister was under an obligation to inform Mr Luu that he proposed to proceed in a manner that would involve a failure to conform to relevant international norms.
Finally, the Commission submitted that the Minister's decision was vitiated by unreasonableness.

THE COURT'S DECISION

His Honour Justice Marshall dismissed Mr Luu's application in essence because he was unable to find any instance in which the Minister failed to act in accordance with the law. However his Honour concluded with the following remarks (at [114]):

"However, it must be kept in mind that a human being's liberty is never a matter to be taken lightly. Mr Luu has now been in detention for over four years waiting deportation. This is four years longer than the sentence deemed appropriate by the sentencing judge for the offences committed by Mr Luu. In a liberal democracy such as Australia it is unsatisfactory, to say the least, that a human being can be detained for this long in a high security prison having already completed his or her sentence. I doubt whether Parliament envisaged that the power to detain pending deportation would be used in such a way. Although it may be justifiably contended that Mr Luu did not press for his return to Vietnam until 8 February 2000 and is in some way complicit in the delay in this matter, it is hard to see how detention of such a length pending deportation is appropriate. Had this matter been reviewable on the merits, this Court may have reached quite a different conclusion to the one reached by the Minister. Unfortunately this matter is not so reviewable."

His Honour also accepted a number of submissions made by the Commission which may have useful application for future cases including the following:

HREOC's submission that, regardless of the "anti-Teoh" joint ministerial statements made by the Attorney General and the Minister for Foreign Affairs on 10 May 1995 and 25 February 1997, there is a legitimate expectation (as per Teoh) that decision makers will act in accordance with Australia's international obligations. It had been submitted for the Minister that the Joint Ministerial statements removed any such expectation.
HREOC's submission that Mr Luu was entitled to legitimately expect that, in exercising the power conferred by section 253(9) of the Migration Act, the Minister would act in accordance with the ICCPR (particularly insofar as it imposed upon Australia, by articles 7, 9(1) and 10(1), an obligation to avoid indeterminate detention).
HREOC's submission that, contrary to the strong submissions of the Minister, the Minister was and is obliged to consider relevant provisions of the ICCPR dealing with treatment of detainees when considering whether to exercise the discretion under section 253(9) of the Migration Act. In accepting the last mentioned submission, his Honour has clarified (and possibly expanded) the decisions of previous Federal Court decisions. Thus the Minister's failure to take into account articles 7 and 9 of the ICCPR potentially invalidated his decision. However, his Honour found that that failure did not have a material effect on the Minister's decision by reason of his Honour's finding that Mr Luu's detention was not arbitrary or indeterminate.

3.5 APPLICATIONS FOR THE COMMISSION TO APPEAR AS INTERVENER IN A MATTER

The Commission's interventions primarily originate from requests from individuals or legal practitioners or as a result of Commission initiatives. Once again, the Commission relies to a great extent on the parties or their representatives to draw to its attention appropriate matters for potential intervention.

The Legal Section of the Commission can be contacted to discuss whether a matter may be an appropriate one for intervention. As with potential amicus matters, prior to contacting the Commission, parties or their solicitors should have:

obtained details of the nature and history of the proceedings (including a copy of all documents filed in the proceedings), and
the next court date; and
considered why the matter falls within the Commission Guidelines for Intervention in Court Proceedings.

1. Paper presented by Christine Fougere (Senior Legal Officer at the Human Rights and Equal Opportunity Commission) at the National Conference of Community Legal Centres, 2-5 September 2001, Fremantle, WA.

2. United States Tobacco Co v Minister for Consumer Affairs and Others (1988) 83 ALR 79 at 93.

3. Ibid at 95.

4. (1997) 189 CLR 579.

5. Ibid at 604.

6. See Australian law Reform Commission Report Standing to sue for public remedies, 1996 at 6.47.

7. Section 46PH of the HREOCA.

8. Under Division 2 of Part IIB of the HREOCA.

9. Section 46PV(2) of the HREOCA.

10. 'Interest' in the sense of not being a busy body, not in the manner of 'legal interest' as required by an intervener.

11. See, for example, section 96(2) of the SDA which requires the Sex Discrimination Commissioner to have "appropriate qualification, knowledge or experience".

12. The Hon Daryl Williams, Hansard, House of Representatives, 3 December 1998, at 1276; Senator Jocelyn Newman, Hansard, Senate, 22 March 1999, at 2916.

13. The Federal Court and the Federal Magistrates Court have not yet considered these provisions. The Commission considered these provisions most recently in the case of Hickey v Hunt & Hunt (1998) EOC 92-910.

14. Section 11(1)(o) of the HREOCA.

15. Section 31(j) of the HREOCA.

16. Section 3(1):
discrimination, except in Part IIB, means:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;
but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job; or
(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

17. Section 20(1)(e) of the RDA.

18. Section 48(1)(gb) of the SDA

19. Section 67(1)(l) of the DDA.

20. The grounds are set out under the definition of "discrimination" in section 3(1) of the HREOCA.

21. These grounds were declared by Human Rights & Equal Opportunity Commission Regulations 1989 (No.407 of 1989).

22. Re Michael: John Briton, Acting Public Advocate (Victoria) v GP & KP and HREOC (1994) FLC 92-486.

23. Re a Teenager (1988) 94 FLR 181; Re Marion No.2 (1994) FLC 92-448; P v P; re Lessli (1995) FLC 92-615; Re Katie (1996) FLC 92-659; Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's Case).

24. ZP v PS (1994) 68 ALJR 554.

25. B v B

26. Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

27. Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245.

28. C, L J & Z v Minister for Immigration and Ethnic Affairs, unreported, O'Loughlin J, 30 March 1995. This matter also went on to appeal to the Full Federal Court.

29. Langer v Australian Electoral Commission (1996) 186 CLR 302.

30. Croome & Toonen v State of Tasmania (1997) 71 ALR 397.

31. Kartinyeri v Commonwealth (1997) 152 ALR 540.

32. Ben Ward obo Miriuwung and Gajerrong Peoples & Ors v State of WA & Ors, heard in the High Court of Australia, 6 -16 March 2001, Decision reserved.

33. [2001] FCA 1136.

Last updated 14 April 2004.

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