Intervention in proceedings

Under the Anti-Discrimination Act 1991, the Commission may apply to intervene in a proceeding that involves human rights if:

• the Commission considers it appropriate, and
• the court or tribunal grants permission to intervene.

The Commission may seek to intervene where its expertise might assist the court or tribunal.

Access details of Commission interventions under the Anti-Discrimination Act 1991.

The following guidelines outline why and when the Commission may intervene in proceedings under the Human Rights Act 2019 and explain procedures for notifications and requests for intervention.

The Commission intervenes as an independent, expert advocate for the Act. Its role is to assist the court ortribunal by:

• helping to identify and explain issues in relation to human rights
• identifying relevant domestic and international law
• potentially recommending outcomes compatible with human rights.

Given its role, the Commission is in a position to make submissions that focus on broader public interest issues, rather than limited to the interests of the parties.

Intervention helps fulfil the Commission’s broader functions:

• promoting public understanding and discussion of human rights
• providing education about information about human rights
• monitoring how the Act operates in Queensland.

The Human Rights Act 2019 sets out human rights that belong to all people in Queensland. All three arms of government – legislature, executive, and judiciary – have responsibilities relating to these rights.

The Human Rights Act may affect legal proceedings in several ways, including:

• Section 48: Courts and tribunals must interpret legislation in a way that is compatible with human rights to the greatest extent possible.
• Section 49: A party to an existing proceeding may ask that a question of law about the application of the Act or a question about interpretation be referred to the Supreme Court.
• Section 53: The Supreme Court may declare that a statutory provision cannot be interpreted in a way that is compatible with human rights (a declaration of incompatibility). This does not invalidate the law but triggers Parliamentary review.
• Section 59: Proceedings against public entities under other laws may include a claim that the entity’s act or decision was not compatible with human rights or that human rights were not properly considered.

The Commission may intervene in proceedings where:

• a question of law arises about how the Act applies, or
• a question arises about the interpretation of a statutory provision in line with the Act (s 51).

Whether such a question arises depends on the issues in the case, not the parties’ submissions (Kortel v Mirik (2008) 28 VAR 405; [2008] VSC 103 at [16]).

Where the Supreme Court is considering making a declaration of incompatibility under section 53, the Commission must be notified and given a reasonable opportunity to intervene or make submissions.

The Attorney-General holds the same power as the Commission to intervene. (ss 50, 53).

The Commission does not intervene in every case. Each decision is made by the Commissioner.

Factors the Commission may consider

(a) whether the human rights issue is significant and central to the proceedings

(b) whether the case involves a new or unsettled law or would clarify a disputed interpretation

(c) whether the outcome may affect people beyond the parties

(d) whether it may prompt change to unfair or ineffective law.

(e)whether the Commission can add unique value not already provided by the parties or the Attorney-General

(f) whether the Commission’s intervention will have an impact on the parties, including any delay or obstacle to early resolution

(g) whether any party has requested or opposed the intervention

(h) whether time and resource implications for the Commission are feasible

(i) whether the court or tribunal involved has particular requirements

(j) whether intervention at the stage of the proceedings would be effective.

(k) whether intervention is relevant to the Commission’s role, function or reputation.

(l) whether the intervention aligns with the Commission’s strategic priorities.

(m) whether the parties are legally represented.