Chapter 2
Approval by Attorney-General of Commission intervention in court proceedings
Introduction
2.1 The 1998 bill required the Attorney-General to approve any intervention
[1] by the commission in court proceedings which
involve human rights or discrimination issues. The Attorney-General, in
considering whether to approve an intervention by HREOC, could have regard
to a range of matters [2], however his discretion
was not limited to these criteria. The relevant provisions of the bill
modified the existing broad discretions given to the commission to intervene
(with the leave of the court) in any proceedings that involve human rights
or discrimination issues [3].
2.2 The Attorney-General supported these provisions on the grounds that:
The bill provides very broad criteria for the granting of my approval,
which will enable me to ensure that every intervention by the new commission
is in the best interests of the Australian community as a whole. [4]
2.3 The amendments also reflected the government's policy of refocusing
the commission's functions and emphasis, and as part of that:
[the commission] should concentrate its attention more on the amicus
curiae [5] role, which is provided for in
the Human Rights Legislation Amendment Bill No.1 [6]
and which is a more helping and assisting role in a relevant case, than
on the intervention role … [7]
2.4 All submissions received by the committee opposed these provisions.
The submissions presented four main arguments against this proposal:
- there is no evidence of abuse by the commission of its power;
- the amendments threaten HREOC's independence and may constitute a
conflict of interest for the Attorney-General;
- HREOC's intervention in court proceedings is of assistance to the
courts; and
- it is the courts' role to determine who may intervene.
No evidence of commission abuse of its power
2.5 A number of submissions, including that of HREOC, asserted that there
is no evidence to suggest that the commission has misused its power to
intervene. The evidence presented indicated that the commission has used
the power to intervene in court proceedings very sparingly – only
17 times in 11 years. [8]
2.6 In its evidence to the committee, HREOC pointed out that it is in
its own interests to be cautious about intervening:
It should be noted that, when the commission does successfully become
an intervener in matters, it is exposing itself to the possibility of
a costs order by doing that, so obviously the commission considers very
seriously whether it will seek leave to intervene or not. [9]
The amendments threaten HREOC's independence and may constitute a conflict
of interest for the Attorney-General
2.7 A number of submissions argued that the proposed amendments threaten
HREOC's independence and its watchdog role. For example, Professor Charlesworth
and Associate Professor McCorquodale in their submission stated that:
… it cannot be assumed that the Commonwealth government inevitably
acts in accordance with human rights principles and because the very
nature of human rights arguments often calls governmental actions into
question, the grant of a veto to the Attorney-General over the ability
of the Commission to intervene in a case effectively undermines the
full protection of human rights in Australia. [10]
And similarly Amnesty International's submission argued that:
If the current and/or proposed Commission are [sic] to be truly independent,
the Attorney General must not have any role whatsoever in determining
whether or not an intervention should occur. This must be the sole decision
for the independent Commission. [11]
2.8 The Chief Justice of the Family Court, the Honourable Alastair Nicholson,
reiterated this point:
The possibility for the opportunity or perception of interference with
the Commission should be prevented rather than legislated. This is particularly
so when no apparent benefit flows from introducing the requirement of
approval … [12]
2.9 The potential conflict of interest for the Attorney-General, in the
light of his membership of the executive government, was discussed also
in the submission of the Launceston Community Legal Centre:
Should such decisions be left to the Attorney-General, the potential
for human rights issues to be marginalised in favour of political expediency
and electoral gain would become a real and serious problem. [13]
2.10 Some submissions argued that it is inappropriate for the Attorney-General
of the day to have sole responsibility for determining the interests of
the community in such matters, with no avenue of accountability or review
of the reasons for the decision. [14] The Attorney-General
himself has stated that:
Commonwealth, State and Territory attorneys-general generally continue
to be responsible for the administration of justice and the recommendation
to cabinet of judicial and magisterial appointments. But there is little
or no expectation on the part of the public that the attorney will act
independently of his or her cabinet colleagues in relation to such matters.
… In the light of these circumstances, it ought to be concluded
that the perception that the attorney-general exercises important functions
independently of politics and in the public interest is either erroneous
or at least eroded. [15]
2.11 There is also a potential conflict of interest for the Attorney-General
in cases where the Commonwealth is a party to the proceedings. Professor
Charlesworth, an academic in the field of international law, said in evidence
to the committee:
The rationale seems, from looking at the explanatory memorandum, to
be that it may be inappropriate for HREOC to intervene to make arguments—or
that at least it should be subject to the Attorney-General's permission
for it to make arguments—that are contrary to arguments being made
by the government. The Attorney has referred, in a couple of speeches
and statements, to a particular family law case, that of B and B last
year, where he was actually personally appearing for the Commonwealth
in that case and HREOC was an intervener in it. I think he was perhaps
rather startled that he would be arguing and that HREOC might be taking
a different position. [16]
2.12 The submission of the Human Rights and Discrimination Committee
of the Combined Community Legal Centres' Group (NSW) cited cases in which
the commission has intervened and in which the Commonwealth was a party,
as well as cases in which the commission has made submissions on the human
rights implications of Federal legislation. [17]
HREOC's intervention is of assistance to the courts
2.13 The Refugee and Immigration Legal Centre cited two examples of court
judgments that acknowledged the usefulness of the commission's advice
and involvement. [18] Jenkinson J stated in
Wu Yu Fang and 117 Others v Minister for Immigration and Ethnic Affairs
and the Commonwealth of Australia:
Leave having been granted to the Human Rights and Equal Opportunity
Commission to intervene in the proceeding out of which the appeal arises,
the written submissions of the Commission on appeal have been gratefully
received and considered. [19]
In the same matter, Carr J confirmed:
In this matter I would grant leave because the Commission's submissions
(which supported the appellants' claims) were rejected at first instance.
I found them to be of considerable assistance and, like the other members
of the Court, I am grateful for them. [20]
2.14 Chief Justice Nicholson in his submission indicated that the commission
frequently makes submissions that are different to those of the Commonwealth,
and helpfully different. He also confirmed that in the case of B and B
“the Court was significantly assisted by the Commission as well as
the Attorney-General”. [21]
Courts' role to determine who may intervene
2.15 The committee notes the evidence of Ms Robin Banks of the Human
Rights and Discrimination Committee of the Combined Community Legal Centres'
Group (NSW), that it should remain the role of the courts to determine
who should appear before them:
… surely there is a central role for the court to determine what
it needs in terms of independent views if it chooses to grant standing
or not.
…
Courts have been fairly reticent to grant standing to third parties
in matters in the past. … that has become more flexible in recent
years, but it is still certainly not as of right by any means. Most
courts do seriously consider what the party will contribute before they
in fact grant standing. [22]
2.16 Mr Greg Kirk, also of the Human Rights and Discrimination Committee
of the Combined Community Legal Centres' Group (NSW), in his evidence
to the committee described a recent case where intervention was allowed:
… the court managed it very carefully such that the hearing time
was not greatly extended—it was very disciplined about the time
allocated to each party. The interveners had to agree to pay the costs
of all the other parties for any time they took up. [23]
2.17 The committee also notes the view expressed by the commission in
its evidence:
… there is already a gatekeeper in terms of whether or not the
commission intervenes in a matter. That gatekeeper is the court, and
our view is that that is the appropriate body to be gatekeeper. [24]
Other issues
2.18 The committee also notes that the proposed arrangements imposed
two new additional administrative hurdles for the commission whenever
it wishes to intervene in a court proceeding: a deputy president must
seek the approval of the Attorney-General and must consult with his or
her colleagues. [25] It was suggested by the
Human Rights and Discrimination Committee of the Combined Community Legal
Centres' Group (NSW) that this is both unwieldy and inefficient. [26]
Conclusions
2.19 The submissions and evidence presented to the committee raised considerable
doubts about the merits of the proposal, that the Attorney-General must
approve any intervention by HREOC in court proceedings.
2.20 The committee considers that the issue is the balance between two
potentially conflicting principles. The first principle is that the executive
government has a legitimate prerogative to set policy and determine the
role of government agencies, and to ensure that the powers of an agency
are used “in the best interests of the Australian community as a
whole”. [27]
2.21 The second principle is that Australia's peak human rights organisation
should be independent from executive government. This is important since,
as stated by Professor Charlesworth, “the very essence of the idea
of human rights is, if you like, restraints on government”. [28]
As HREOC argued in its submission:
The independence of the Commission is at the very core of the Commission's
ability to perform (and to be seen to perform) its functions with effectiveness,
integrity and impartiality. [29]
2.22 In considering whether changes are needed to the current balance
between these two principles, the committee has not received any evidence
that the commission's power to intervene has been abused. In fact, the
commission has never been refused leave to intervene by the courts on
the limited occasions in which it has sought such leave [30],
and indeed the committee received evidence that the courts value contributions
made by HREOC.
2.23 The changes proposed may well give rise to conflicts of interest
for the Attorney-General, and be perceived by the community as compromising
the independence of the commission. At the same time the proposed changes
impose an additional level of administrative procedures to be observed.
The committee is also concerned that the proposed legislation contains
no accountability or review provisions to make the decision-making process
transparent, predictable and reviewable.
Recommendation No. 2:
The committee therefore recommends that the 1998 bill be amended
to restore the status quo, so that the commission's intervention power
remains free of the need for approval by the Attorney-General. The committee
considers that potential difficulties may be avoided by more effective
communication systems between the commission and the Attorney-General.
Footnotes
[1] Generally, an intervention refers to the
situation in which a person (or an organisation) seeks the leave of the
court to intervene as a party in proceedings, to protect his or her interests
where those interests are different from those of the existing parties.
[see Federal Court rules Order 6 rule 8] An intervener, once given leave
to intervene, becomes a party to the proceedings and can appeal, tender
evidence and make submissions.Under current legislation, the commission
expressly has the power to intervene in relevant proceedings, with the
leave of the court – see Human Rights and Equal Opportunities
Act 1986, paragraphs 11(1)(o) and 31(1)(j); Disability Discrimination
Act 1992, paragraph 67(1)(l); Racial Discrimination Act 1975,
paragraph 20(1)(e); and Sex Discrimination Act 1984, paragraph
48(1)(gb).
[2] See items 22, 34, 82, 109 and 127 of Schedule
1 of the bill.
[3] Human Rights and Equal Opportunities
Act 1986, paragraphs 11(1)(o) and 31(1)(j); Disability Discrimination
Act 1992, paragraph 67(1)(l); Racial Discrimination Act 1975,
paragraph 20(1)(e); and Sex Discrimination Act 1984, paragraph
48(1)(gb).
[4] Second reading speech in House of Representatives
Hansard, 8 April 1998, p. 2830.
[5] An amicus curiae is a “friend of the
court” and is a person (or an organisation) who, with the court's
permission, may advise the court on a point of law or on a matter of practice.
An amicus curiae has no personal interest in the case as a party and does
not advocate a point of view in support of one party or another. The court
may hear an amicus curiae if it considers it in the interests of justice
to do so.
[6] See item 58, section 46PS, of Schedule 1
of the Human Rights Legislation Amendment Bill 1997.
[7] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 14.
[8] Submission No. 11, Human Rights and Equal
Opportunities Commission, p. 4.
[9] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 3.
[10] Submission No. 9, Professor Hilary Charlesworth
and Associate Professor Robert McCorquodale, p. 3.
[11] Submission No. 1, Amnesty International,
p. 2.
[12] Submission No. 21, the Honourable Alastair
Nicholson, p. 2. See also Submission No. 24, Aboriginal and Torres Strait
Islander Commission, p. 3.
[13] Submission No. 3, Launceston Community
Legal Centre, p. 2.
[14] Submission No. 21, the Honourable Alastair
Nicholson, p. 2.
[15] Paper entitled Who Speaks for the Courts?,
presented by the Attorney-General to the Courts in a Representative Democracy
Conference, September 1995, p. 8.
[16] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 17.
[17] Submission No. 2, Combined Community Legal
Centres Group – Human Rights and Discrimination Committee, p. 4.
For a detailed discussion of the instances of HREOC intervention see Submission
No. 11, Human Rights and Equal Opportunities Commission, pp. 4-5.
[18] Submission No. 6A, Refugee and Immigration
Legal Centre, pp. 5-6.
[19] No. WAG 89 of 1995, No. 106/96 at p. 2.
[20] No. WAG 89 of 1995, No. 106/96 at p. 3.
[21] Submission No. 21, the Honourable Alastair
Nicholson, p. 2.
[22] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 10.
[23] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 10.
[24] Legal and Constitutional Legislation Committee
Legislation Proof Hansard, 28 July 1998, p. 4.
[25] Item 91 of Schedule 1 of Human Rights
Legislation Amendment Bill (No. 2) 1998.
[26] Submission No. 2, Combined Community Legal
Centres Group – Human Rights and Discrimination Committee, p. 3.
[27] Second reading speech in House of Representatives
Hansard, 8 April 1998, p. 2830.
[28] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 17
[29] Submission No.11, Human Rights and Equal
Opportunities Commission, p. 2.
[30] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 1.