On 21 April 2006 the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (‘the Commissioner’) filed a Notice of Motion seeking leave to appear as amicus curiae in proceedings QUD 300/2005 Giblet & Ors v Queensland & Anor, QUD 301/2005 Chong & Ors v Queensland & Anor and QUD 389/2005 Douglas & Ors v Queensland. The Notice of Motion was supported in each case by an affidavit of the Commissioner affirmed on 21 April 2006.
- The Commissioner seeks leave to make submissions, orally and in writing, in relation to issues of law arising in the present proceedings. The Commissioner respectfully submits that he will be able to provide assistance to the Court beyond that provided by the parties in resolving the issues before it.
The amicus curiae function of the Commissioner
Section 46PV of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) gives the Commissioner, as a ‘special-purpose Commissioner’, the function of assisting the Court as amicus curiae in:
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;
proceedings that, in the opinion of the special-purpose Commissioner, have significant implications for the administration of the relevant Act or Acts;
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.
- It is the formulation of the relevant view or opinion by a special-purpose Commissioner that ‘enlivens’ this function. The affidavit of the Commissioner dated 21 April 2006 deposes as to the formulation of the requisite opinion and satisfaction by the Commissioner in each case (see -).
The function of assisting the Court as amicus curiae may nevertheless only be exercised with leave of the Court: s 46PV(2) HREOC Act. In determining whether or not leave should be granted in all the circumstances, the Commissioner submits that the Court should apply common law principles applicable to amicus curiae1 within the particular statutory context of the HREOC Act which acknowledges the unique position of special-purpose Commissioners.
Role of an amicus curiae at common law
The role of an amicus curiae is normally confined to assisting the Court in resolving issues raised in the course of litigation where such assistance would not otherwise have been provided and in drawing attention to aspects of the case that might otherwise have been overlooked: Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490 (‘Kabushiki Kaisha’) per Sackville J at 493-5  – .
- In Levy v State of Victoria (1997) 189 CLR 579 (‘Levy’), Brennan CJ stated (at 604-605, footnotes omitted):
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…
- Similarly, in United States Tobacco Co v Minister for Consumer Affairs and Others (1988) (‘United States Tobacco’) 20 FCR 520, the Full Federal Court stated (at 536):
The general principle is that the parties are entitled to carry on their litigation free from the interference of persons who are strangers to the litigation. But there is an overriding right of the court to see that justice is done. An amicus may be heard if good cause is shown for doing so and if the court thinks it is proper. Nothing in these reasons should be understood to delimit or restrict the availability of or effectiveness of this valuable tool.
- In Attorney-General (Cth) v Breckler & Ors (1999) 197 CLR 83, the High Court also recognised that specialist organisations will have a broad interest and capacity to offer assistance (per Kirby J at 134):
[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.
- The role of amicus curiae differs from the role of intervener: see generally the discussion in United States Tobacco Co at 534-5. There is no requirement that an amicus curiae have a special interest in the proceedings, as is the case for an intervener: see Levy per Brennan CJ at 604; Kruger v The Commonwealth, High Court of Australia, Transcript 12 February 1996 at 12 per Brennan CJ and the discussion in Kabushiki Kaisha at 493-4  which acknowledges the possible role of a ‘bystander’.
Position of the special-purpose Commissioner as amicus curiae
The conferring of the amicus curiae function by the legislature on the special-purpose Commissioners under the HREOC Act is recognition of the fact that, by reason of their position, expertise and knowledge, each Commissioner is in a unique position to assist the Court in determining the issues before it. The Commissioner respectfully submits that this legislative recognition should be taken into account by a court in considering whether or not it may be assisted by a special-purpose Commissioner in matters brought under the HREOC Act and that this should be a factor weighing in favour of the granting of leave.
The Commissioner further submits that he is, in any event, well-placed to assist the Court in the present matter by virtue of the activities undertaken by him which reflect, and have developed, his expertise and knowledge in relation to race discrimination issues. These activities are set out in the affidavit of the Commissioner at .
- The amicus curiae provisions in the HREOC Act also recognise that special-purpose Commissioners may play an important role in assisting the Court in relation to any broader implications of issues arising in a given matter. This was made clear in the Attorney-General’s Second Reading speech to the legislation which inserted s 46PV into the HREOC Act:
…commissioners are to be given an amicus curiae function to argue the policy implications of their legislation before the Federal Court.2
- The requirement for leave in s 46PV(2) nevertheless recognises that it is for the Court to protect and control its own procedures and to determine whether or not it will be appropriately assisted by an amicus curiae in the circumstances of the case. The Commissioner respectfully submits that the Court should be satisfied that it would be so assisted by the involvement of the Commissioner for the reasons that follow.
The present application
The Commissioner submits that he is in a special position to offer assistance to the Court in relation to significant issues raised in the proceedings. 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’: Levy at 651-652, per Kirby J.
The present application raises for consideration the interpretation and application of a number of the substantive provisions of the Racial Discrimination Act 1975 (Cth) (‘the RDA’). In particular, the pleadings raise ss 9(1) and 15 of the RDA. The nature of the applications brought in QUD 300 and QUD 301 also suggests that s 17 of the RDA may be, or may become, relevant. These provisions have received limited judicial consideration.
The RDA gives effect to the International Convention on the Elimination of all Forms of Racial Discrimination3 (‘ICERD’). The meaning of provisions in a statute implementing a convention is to be ascertained by reference to the relevant provisions of that convention.4 The views of expert international bodies responsible for considering States Parties implementation of a convention, such as the Committee on the Elimination of Racial Discrimination, may be relevant in this regard. Australian courts have accepted that guidance as to the meaning and effect of international conventions may be gathered from the writings and decisions of such bodies.5 The Commissioner submits that he is able to assist the Court by reference to such material in a way that the Court may not otherwise be assisted.
Similar issues to those raised in the present case were the subject of the decision in Baird v Queensland  FCA 495. An appeal has been heard by the Full Court in that matter (QUD377/2005, decision reserved) and the Human Rights and Equal Opportunity Commission was granted leave to intervene to make submissions. It may be expected that the decision of the Full Court in that matter will assist the Court in the resolution of the issues in the present cases. The Commissioner nevertheless submits that the Baird matter highlights the potential legal complexity of cases brought under s 9(1) of the RDA and the scope for assistance that might be provided by the Commissioner in such matters.
In the event that other issues arise during the course of the hearing of these matters in relation to which the Court may be assisted, the Commissioner will obviously endeavour to provide such assistance if leave is granted to appear as amicus curiae.
The Commissioner acknowledges that the parties are both legally represented. This may limit the extent to which the Court will be assisted by submissions from the Commissioner. The Commissioner is conscious that the Court will not be assisted by the repetition of matters adequately canvassed by the parties and the Commissioner has no interest in doing so. However, the Commissioner maintains that he will be able to ‘provide substantial assistance to the Court, of a kind that otherwise might not be available’: Kabushiki Kaisha at 495 . The Commissioner submits that his unique position of expertise will enable him to assist the Court in determining the issues in dispute having regard to the broader legal and policy context.6
The Commissioner seeks to leave to make written and oral submissions on issues of law. The Commissioner does not seek to lead evidence, examine witnesses or make submissions on any purely factual issues.
The Commissioner submits that no practical considerations militate against the granting of leave in the manner sought because:
the parties and the Court have received early and adequate notice of the Commissioner’s intention to seek leave to appear as amicus curiae;
the appearance of the Commissioner as amicus curiae will not unduly lengthen or delay the proceedings; and
the Court may choose to place conditions on the length of written or oral submissions by the Commissioner should concerns about delay arise in the course of the hearing.
- Accordingly, leave should be granted to the Commissioner to appear as amicus curiae to assist the Court on the terms sought.
Solicitor for the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner
5 May 2006
The Commissioner notes that Order 6 r 17 of the Federal Court Rules applies to ‘interveners’ and does not appear to apply to amicus curiae: see Australian Automotive Repairers Association (Political Action Committee) Inc v NRMA Insurance Ltd (No 2)  FCA 1301, .
Attorney-General (Mr Williams), House of Representatives Hansard, 3 December 1998 at 1276.
Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969 except for article 14 which came into force 4 December 1982).
Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Gerhardy v Brown (1985) 159 CLR 70, 124 (Brennan J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 303 (McHugh J), 332-3 (Kirby J). It has been held that approach is not confined in its application to ambiguous statutory provisions: X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 333 and footnotes 168-169 (Kirby J).
See, for example, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 392 (Mason CJ), 396-7 and 399-400 (Dawson J), 405 (Toohey J), 416 (Gaudron J), 430 (McHugh J) in which the Court recognized that guidance in the interpretation of the meaning of ‘refugee’ may be found in the views of the United Nations High Commissioner for Refugees; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, 117 (Gummow J); Commonwealth v Hamilton (2000) 108 FCR 378, 388 (Katz J); Commonwealth v Bradley (1999) 95 FCR 218, 237 (Black CJ). See as examples of references to the jurisprudence of human rights treaty bodies: Mabo v Queensland (No 2) (1992) 175 CLR 1, 42 (Brennan J with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292, 307 (Mason CJ and McHugh J); Johnson v Johnson (2000) 174 ALR 655, 665  (Kirby J); Commonwealth v Bradley (1999) 95 FCR 218, 237 (Black CJ); Commonwealth v Hamilton (2000) 108 FCR 378, 387  (Katz J); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54.
This is not to suggest that the Commissioner proposes to expand upon the issues currently the subject of the dispute. That is not a role for an amicus curiae.