Last Updated 17 August 2021
There is a right of representation before the Federal Court or the Federal Circuit Court. A person can appear in person or be represented by a solicitor, barrister or another person (s 46PQ Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)). It should be noted that only solicitors and barristers can recover professional fees for representation in such an application.
The Federal Court and the Federal Circuit Court will not be bound by technicalities or legal forms. The president of the Australian Human Rights Commission (AHRC) may provide the court with a written report on the complaint, although such a report cannot include matters said or done within the private conciliation stage of the complaint inquiry process.
Financial assistance may be given by the Commonwealth Attorney-General for proceedings before the Federal Court or the Federal Circuit Court (s 46PU AHRC Act). This is available for applicants and respondents where refusal to assist would lead to hardship, and in all the circumstances it is reasonable to provide assistance to the person.
The amicus curiae and intervention functions of the Australian Human Rights Commission
The AHRC and its commissioners have the statutory power to become involved in court proceedings in two ways:
- The AHRC can intervene in court proceedings that involve human rights issues.
- Any of the special-purpose commissioners can appear as amicus curiae (a friend of the court) in proceedings in the Federal Court and the Federal Circuit Court (s 46PV AHRC Act).
Intervention in matters involving human rights
The AHRC (as a whole entity) can intervene and seek to become a party to court proceedings that involve:
- human rights issues (s 11(1)(o) AHRC Act)
- discrimination in employment or occupation (s 31(j) AHRC Act)
- racial discrimination issues (s 20(1)(e) Racial Discrimination Act 1975 (Cth))
- discrimination on the ground of sex, marital status, pregnancy or potential pregnancy or discrimination involving sexual harassment (s 48(1)(g)(b) Sex Discrimination Act 1984 (Cth))
- discrimination on the ground of disability (s 67(1)(l) Disability Discrimination Act 1992 (Cth)).
The intervention is not limited to matters before the Federal Court and the Federal Circuit Court and can be in a criminal, civil or other jurisdiction. Some examples of cases where AHRC intervention has occurred include:
- family law matters involving consent to medical treatment by children
- child abduction cases
- immigration cases, including detention of asylum seekers
- freedom of political speech
- native title.
The AHRC has a set of guidelines that describe the types of proceedings that the AHRC might intervene in, and an application can be made requesting that the AHRC exercise its intervention function.
The amicus curiae function of the special purpose commissioners
Where the president has terminated a complaint and the Federal Court or the Federal Circuit Court is hearing an application, a special-purpose commissioner can appear before the court as amicus curiae. This will only occur where:
- the orders sought may significantly affect the human rights of people who are not parties to the proceedings
- the proceedings have significant implications for the administration of the relevant Act
- the proceedings involve special circumstances that mean it would be in the public interest for the commissioner to assist the court.
The commissioner can only appear with the leave of the court. The AHRC has guidelines for the exercise of the amicus curiae function, and applications can be made requesting that the AHRC appear.