Interventions under the Anti-Discrimination Act 1991
The Commission's functions under the Anti-Discrimination Act (ADA) include intervening in a proceeding that involves human rights if the Commission considers it appropriate, and with the leave of the court hearing the proceeding.
The Commission may apply to intervene in a proceeding where it may be able to provide expert assistance to the court or tribunal.
Interventions under the Human Rights Act 2019
The following guidelines have been developed to explain why and when the Commission may intervene in proceedings under the Human Rights Act, and procedures regarding notifications and requests for intervention. The Human Rights Act came into effect on 1 January 2020 and no interventions under this Act have taken place as yet.
Human rights and legal proceedings
The Human Rights Act 2019 (Qld) (HRA) sets out human rights that belong to all people in Queensland in 23 sections. All three arms of government have a role and responsibility to promote and protect human rights.
The HRA impacts upon court and tribunal proceedings in that:
- Courts and tribunals must interpret legislation in a way that is compatible with human rights (s 48 HRA).
- Proceedings against public entities commenced under laws other than the HRA may attach an additional claim that human rights have been breached by the public entity’s act or decision (s 59 HRA).
A party to a proceeding may ask that a question relating to the application of the HRA or interpretation of a statutory provision in accordance with the HRA be referred to the Supreme Court. (s 49)
The Supreme Court may make a declaration that, in the court’s opinion, a statutory provision cannot be interpreted in a way that is compatible with human rights (s 53 HRA). This declaration of incompatibility triggers Parliamentary processes to review the legislation and respond, but does not invalidate the law.
Right to intervene
The Commission has a right to intervene in court or tribunal proceedings in which:
- a question of law arises that relates to the application of the HRA, or
- a question arises in relation to the interpretation of a statutory provision in accordance with the HRA (s 51 HRA).
(referred to in this guideline as HRA issues)
Whether or not a HRA issue arises does not depend on the submissions of the parties, but on the nature of the issues raised by the proceedings (Kortel v Mirik (2008) 28 VAR 405;  VSC 103 at ).
The Commission must also be given a reasonable opportunity to intervene or make submissions about a proposed declaration of incompatibility by the Supreme Court (s 53 HRA).
The Attorney-General has the same rights to intervene or make submissions (ss 50, 53 HRA).
Purpose of intervention
The Commission considers its purpose in intervening in legal proceedings to be an independent and expert advocate for the HRA. The Commission can assist the court or tribunal and parties by helping to clarify the legal issues in dispute in a human rights context, identify relevant domestic and international law and judgments, and recommend outcomes that would be compatible with human rights. 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 also supports other functions of the Commission, including promoting understanding and acceptance and public discussion of human rights, providing education about human rights, and monitoring the operation and implementation of the HRA.
When the Commission will intervene
The Commission will not intervene in all matters raising an HRA issue.
The decision to intervene will be made by the Commissioner.
Factors the Commission may consider when deciding whether to intervene include:
(a) Whether the HRA issue is significant and not peripheral to the proceedings;
(b) Whether the proceeding involves a new or unsettled area of law, or would clarify a disputed interpretation of the law;
(c) Whether the outcome may significantly affect persons beyond the parties to the proceeding;
(d) Whether the outcome may prompt change to unfair or ineffective laws;
(e) Whether the Commission may make submissions or provide assistance to the court or tribunal which are unlikely to be provided by the parties or other intervenors, including the Attorney-General;
(f) The likely impact on the parties as a result of the Commission’s intervention, including any delay or obstacle to early resolution;
(g) Whether any party has requested the Commission to intervene and whether any party would or does oppose the intervention;
(h) Time and resource considerations for the Commission;
(i) The court or tribunal in which the proceeding is brought;
(j) The stage of the proceedings, for example, is it an intermediate or final hearing;
(k) Relevance to the role, function or reputation of the Commission;
(l) Relevance to the strategic priorities of the Commission;
(m) Whether the parties have legal representation.
Notification of matters raising an HRA issue
Supreme and District Court proceedings
Under s 52 HRA, a party to a proceeding must give notice in the approved form to the Commission and the Attorney-General if:
- A HRA issue arises in a Supreme Court or District Court proceeding;
- A HRA issue is referred to the Supreme Court under s 49 HRA.
The Commission will be assisted if copies of relevant court documents are provided with the notice in the approved form.
Notice should be served on the Commission and Attorney-General, the court and all other parties to the proceedings as soon as possible after the HRA issue arises.
The Commission will try to respond to all parties, the Attorney-General, and the court within 14 days of being served, or will notify if more time is needed.
Section 52(3) HRA provides that the giving of notice does not require the court or tribunal to adjourn the proceedings.
Address for service
The Commission’s contact details for the purpose of notification are:
Queensland Human Rights Commission
Level 20, 53 Albert Street
Brisbane, Queensland 4000
Parties to proceedings that raise HRA issues but are not in the Supreme Court or District Court can request the Commission intervene using the above contact details. Requests should contain the same information required by the approved form and include any relevant court or tribunal documents.
If the Commission decides to intervene
Once the Commission intervenes, it becomes a party to the proceedings, including the right to make oral and written submissions, lead evidence, and appeal.
The Commission will not as a general rule seek its costs from unsuccessful parties.
The Commission does not expect parties to seek their costs against it if it acts reasonably and within its role as intervenor.
The Commission has the right to appeal in proceedings in which it has intervened.
Factors the Commission may consider in deciding whether to appeal include:
(a) The factors outlined under heading 5 above;
(b) The merits of the appeal.
Review of guidelines
These guidelines will be subject to regular review. Any feedback about these guidelines and the use of the Commission’s functions more generally can be made using the address for service details above.
Supreme Court of Queensland: Practice directions (see practice direction 27/19 – Questions referred by a court or tribunal pursuant to the Human Rights Act 2019 (Qld))
Supreme Court of Queensland: Forms (see Form 1 under Human Rights Act 2019, Notice to the Attorney-General and/or the Queensland Human Rights Commission under the Human Rights Act 2019)
Last updated: 3 February 2020.