Amicus Submission: Ferneley
Legal
Outline of submissions of
the Sex Discrimination Commissioner in Support of Application to Assist
the Court as Amicus Curiae in Ferneley Case
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
No. 1261
of 2001
BETWEEN:
HOLLY LOUISE
FERNELEY
Applicant
AND:
THE BOXING AUTHORITY OF NEW SOUTH WALES
RespondentAND:
STATE OF NEW SOUTH WALES
Second
Respondent
Outline of submissions
of the Sex Discrimination Commissioner in Support of Application
to Assist the Court as Amicus Curiae
Notice of Motion
1. On 22 October
2001 the Sex Discrimination Commissioner ("the SD Commissioner")
filed a Notice of Motion seeking to move the Court for orders that the
SD Commissioner be granted leave to appear as amicus curiae in
these proceedings, together with any consequential orders and directions.
The Notice of Motion was supported by an affidavit of the SD Commissioner
affirmed on 19 October 2001.
The amicus
curiae function of the Sex Discrimination Commissioner
2. The determination
of complaints of unlawful discrimination under the Sex Discrimination
Act 1984 (Cth) ("the SDA") is vested in this Court under
Part IIB, Division 2 of the Human Rights and Equal Opportunity Commission
Act 1986 (Cth) ("the HREOC Act"). Part IIB was introduced
into the HREOC Act by the Human Rights Legislation Amendment Act (No.
1) 1999 (Cth), which commenced on 13 April 2000.
3. The amendments
to the HREOC Act provide an amicus function for the SD Commissioner
in proceedings under Part II, Division 2. Section 46PV provides special-purpose
Commissioners[1] with the function of assisting the
Court as amicus curiae in:
(a) proceedings
in which the special-purpose Commissioner thinks that 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;(b) proceedings
that, in the opinion of the special-purpose Commissioner, have significant
implications for the administration of the relevant Act or Acts;(c) proceedings
that 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 concerned as amicus curiae.
4. The function of
assisting the Court as amicus curiae may only be exercised with
leave of the Court: s 46PV(2).
Principles governing
leave to assist the Court as amicus curiae
5. The role of amicus
curiae, or "friend of the court", should be distinguished
from the role of intervenor.[2] A friend of the court,
unlike an intervenor, is not a party to the proceedings and is not bound
by the outcome.[3] The discretion to grant leave to
assist as amicus curiae is exercised on a different basis from
that governing the allowance of intervention.[4]
6. The role of amicus
curiae is traditionally limited to parties who have a genuine interest
in the proceedings and who are able to assist the court on issues which
may not otherwise have been brought to its attention. In Kruger v Commonwealth
(which dealt with the removal of Aboriginal children), an application
by the International Commission of Jurists to appear as amicus was refused
by the High Court on the grounds that it had failed to show any greater
interest than a mere desire to have the law declared in particular terms,
and it had failed to show that the parties were unable or unwilling to
assist the Court in arriving at the correct determination of the case.[5]
In a similar vein, in Levy v State of Victoria, Brennan CJ made
the following observations on the court's discretion to hear from an amicus[6]:
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
assistedIt is not possible
to identify in advance the situations in which the Court will be assisted
by submissions that will not or may not be presented by one of the parties
nor to identify the requisite capacities of an amicus who is
willing to offer assistance. All that can be said is that an amicus
will be heard when the Court is of the opinion that it will be significantly
assisted thereby, provided that any cost to the parties or any delay
consequent on agreeing to hear the amicus is not disproportionate
to the assistance that is expected.
7. The High Court
has recognised that specialist organisations will have a broad interest
and capacity to offer assistance:
[i]n many proceedings,
especially in recent years, [the High Court] has granted leave to governmental
and non-governmental organisations to make submissions as amici curiae
where their interests have suggested a capacity to provide submissions
from a specialised viewpoint, an industry perspective or in the public
interest.[7]part of [the
High] Court's function is to declare the law for the nation and that
means the Court has got to look at issues that go beyond, or sometimes,
the particular parties [8]
8. The position at
common law has been significantly modified by s 46PV of the HREOC Act.
The legislation maintains the distinction between the function of intervenor
(which is retained under s 11(1)(o) and s 31(j)) and the function of amicus
curiae (under s 46PV). However, the conferring of a special amicus
curiae function on Commissioners expressly recognises that, by reason
of their special position, expertise and knowledge[9],
each Commissioner will be of substantial assistance to the Court in determining
the issues before it.
9. The amicus
curiae provisions also expressly recognise that special-purpose Commissioners
have a particular interest in the wider implications of issues arising
before the Court. This was made clear in the Attorney-General's Second
Reading speech to the legislation:
commissioners
are to be given an amicus curiae function to argue the policy implications
of their legislation before the Federal Court.[10]
10. The function
of assisting the Court as amicus curiae comes into being when the special-purpose
Commissioner forms a view that the conditions of s 46(PV)(1)(a)-(c) are
met.
11. The exercise
of the amicus curiae function may only take place with leave of
the Court. This is confirmed by the Explanatory Memorandum, which provides:
Subsection (2)
makes it clear that the Commissioner's function under this section may
only be performed with the leave of the Court.[11]
12. The current legislative
provision suggests that the common law requirements for the grant of leave
to assist the Court as amicus curiae have been significantly modified.
If the common law had not been modified there would have been no need
to include s 46PV, which would be rendered otiose. The common law requirement
of "particular interest" is now expressly recognised by the
function of the special-purpose Commissioners. The Commissioners' broader
policy imperatives, referred to in s 46PV(1)(a)-(c), are also expressly
recognised by the provision. By their very nature these policy implications
will not be of interest to, nor presented by, the parties to the litigation.
Consequently, once the special-purpose Commissioner forms a genuine opinion
as to the matters set out in s 46PV(1)(a)-(c), the requirements for the
grant of leave to assist the Court as amicus curiae will be met.
13. The leave provision
in s 46PV(2) recognises the role of the Court to protect and control its
own procedures. It enables the Court to address practical considerations
as to whether leave should be given in any particular case. For example,
the following matters may be relevant to this issue:
(a) whether the
parties have been given adequate notice of the application;(b) whether the
admission of an amicus would inappropriately expand the range
of issues in dispute;(c) whether the
admission of an amicus would unduly lengthen the hearing;(d) whether the
admission of an amicus would impose an unacceptable costs burden
on the parties;(e) whether there
would be any inappropriate detriment to any party as a result of the
proposed amicus; and(f) the scope,
nature and form of the proposed amicus.
14. In determining
whether to grant leave, it would be within the Court's discretion to impose
conditions; for example, to:
(a) restrict the
grant of leave to oral submissions only;(b) restrict the
grant of leave to written submissions only;(c) restrict the
time available for the presentation of oral submissions; or(d) give consequential
directions as to the order of submissions with rights to the parties
to reply.
15. In summary, the
creation by the legislature of a special function of amicus curiae
presumes that, subject to the Court's discretion to protect and control
its own processes, the special-purpose Commissioner has a particular interest
in the subject matter of the litigation and the Court will be assisted
by and should hear from the special-purpose Commissioner where the special-purpose
Commissioner has formed the relevant views and opinions.
The present application
16. In the present
proceedings the SD Commissioner has formed the opinion that the proceedings
may raise issues relating to the scope, interpretation and application
of the exemption provision in s 42 of the SDA, which provides:
(1) Nothing in
Division 1 or 2 renders it unlawful to exclude persons of one sex from
participation in any competitive sporting activity in which the strength,
stamina or physique of competitors is relevant.(2) Subsection
(1) does not apply in relation to the exclusion of persons from participation
in:(a) the coaching
of persons engaged in any sporting activity;
(b) the umpiring or refereeing of any sporting activity;
(c) the administration of any sporting activity;
(d) any prescribed sporting activity; or
(e) sporting
activities by children who have not yet attained the age of 12 years.
17.According to paragraph
6 of the Statement of Agreed Facts, the respondents' primary position
is apparently that the functions performed by the Boxing Authority of
NSW are not "services" within the meaning of s 22 of the SDA.
However, the respondents' alternative position is that s 42 will operate
so as to exclude its conduct from Part II, Divisions 1 and 2 of the SDA.
Inevitably, therefore, the Court will be required to consider the operation
of s 42.
18. The implication
of the respondent's submission in paragraph 6 of the Statement of Agreed
Facts is that s 42 of the SDA is to be interpreted broadly, so as to exempt
from the operation of Part II, Divisions 1 and 2 any competitive sporting
activity in which strength, stamina or physique is relevant. If this were
to be accepted by the Court, women might lawfully be excluded from a wide
range of competitive sporting activities where strength, stamina and physique
are relevant.
19. The scope of
s 42 of the SDA has yet to be considered by this Court or the High Court.
However, analogous provisions in State and Territory anti-discrimination
legislation[12] have been interpreted so as to apply
only to competitive sporting activity as between the sexes.[13]
The SD Commissioner takes the view that this is the correct interpretation
of s 42.
20. The interpretation
apparently suggested by the respondents would have significant human rights
implications for women not only in relation to the sport of kickboxing,
but also in relation to other competitive sporting activities which involve
strength, stamina and physique. There is a need for this Court to clarify
the scope of s 42. In a context "where large issues of legal principle
and legal policy are at stake", the Court should "ensure that
its eventual opinions on contested legal questions are informed by relevant
submissions and enlivened by appropriate materials".[14]
21. It should also
be noted that, in general terms, the objects of the SDA require a beneficial
construction of the Act so as to eliminate discrimination.[15]
Accordingly, exemptions and other provisions which restrict rights should
be construed narrowly.[16]
22. In the present
case, the SD Commissioner has particular experience and expertise in the
issues likely to arise in relation to s 42. It is proposed that the SD
Commissioner will assist the Court by filing written submissions, to be
supplemented by oral submissions only if requested by the Court. In these
circumstances, any cost to the parties or delay consequent on agreeing
to hear from the SD Commissioner would not be disproportionate to the
assistance which will be provided to the Court.[17]
23. Accordingly,
it would be appropriate for the Court to receive amicus curiae
assistance from the SD Commissioner.
25 October, 2001
.
Nicholas Poynder
Frederick Jordan Chambers
Counsel for the Sex Discrimination Commissioner
1.Which
includes the Sex Discrimination Commissioner: s 46PV(3)(e)
2. See generally, discussion in United States Tobacco
Co v Minister for Consumer Affairs and Others (1988) 83 ALR 79 at 93-98
3. See Australian Law Reform Commission Report No. 78,
Beyond the door-keeper - Standing to sue for public remedies at para.
6.13
4. Levy v State of Victoria (1997) 189 CLR 579 per
Brennan CJ at 604
5. Kruger v Commonwealth, unreported High Court
transcript, 12 February 1996, per Brennan CJ; cited in Levy v State of
Victoria (1997) 189 CLR 579 at 604, per Brennan CJ
6. Levy v State of Victoria (1997) 189 CLR 579 per
Brennan CJ at 604-605 (footnotes omitted)
7. Attorney-General (Cth) v Breckler & Ors (1999)
197 CLR 83 at 134, per Kirby J
8. Superclinics Australia Pty Ltd v CES and Ors,
unreported High Court transcript, 11 September 1996, per McHugh J
9. For example, s 96(2) of the SDA requires the Sex Discrimination
Commissioner to have "appropriate qualifications, knowledge or experience"
10. Attorney-General (Mr Williams), Parliamentary Debates,
House of Representatives Hansard, 3 December 1998 at 1276 (emphasis
added)
11. Human Rights Legislation Amendment Bill 1998,
Explanatory Memorandum, item 227 (emphasis added)
12. Anti-Discrimination Act 1977 (NSW), s 38; Equal
Opportunity Act 1995 (Vic), s 66; Equal Opportunity Act 1984
(WA), s 35; Anti-Discrimination Act 1991 (Qld), s 111; Equal Opportunity
Act 1984 (SA), s 48; Anti-Discrimination Act 1998 (Tas), s 29;
Anti-Discrimination Act 1992 (NT), s 56; Discrimination Act 1991
(ACT), s 41
13. South v Royal Victorian Bowls Association [2001]
VCAT 207; Brook Robertson v Australian Ice Hockey Federation & Victorian
Ice Hockey Association unreported, ADT of Vic (McKenzie P, 26 March
1998); Re Somers v Mountain District Netball Association (1998) 14
VAR 235; Jernakoff v WA Softball Association (Inc) (1999) EOC 92-981;
Commissioner for Equal Opportunity v Parsons & Ors (1990) EOC
92-278
14. Levy v State of Victoria (1997) 189 CLR 579
at 651-652, per Kirby J
15. See s 15AA(1) of the Acts Interpretation Act 1901
(Cth). See also Waters v Public Transport Corporation (1991) 173
CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997)
191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at
27 per Toohey J, at 39 and 41- 42 per Gummow J and 58 per Kirby J; X
v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways
Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J
16. See X v Commonwealth (1999) 200 CLR 177 at
233 per Kirby J; Qantas Airways Limited v Christie (1998) 193 CLR
280 at 333 and footnotes 168-169, per Kirby J
17. See Levy v State of Victoria, supra note 6
Last updated
1 December 2001Last
updated 7 January 2002.