The Commission may only intervene in proceedings involving a question of law that relates to the application of the Charter or the interpretation of a statutory provision in accordance with the Charter, or where the Supreme Court is considering making a declaration of inconsistent interpretation.
The Commission will only consider intervening in proceedings where:
- the Charter issues are significant and not peripheral to the proceedings; and/or
- the orders that could be made in the proceedings may significantly affect the Charter rights of persons who are not parties to the proceedings; and/or
- the proceedings may have significant implications for the ongoing interpretation or operation of the statutory provision being interpreted in light of the Charter; and/or
- the proceedings may have significant implications for the ongoing application, implementation and/or operation of the Charter.
Factors that the Commission considers relevant to its consideration of whether a matter falls within paragraph 2 of these guidelines are:
- whether the Commission would be likely to be granted a right to intervene in the absence of its statutory right, i.e.
- does the Commission propose to present arguments or facts that the other parties will not be canvassing?
- will the Commission’s involvement contribute to the decision maker reaching an informed decision?1
- whether the case involves a new or unsettled area of the law
- whether the case would clarify a disputed interpretation of the law
- whether the case has significant ramifications beyond the parties to the proceedings
- whether any party has requested the Commission to intervene and whether any party would or does oppose intervention
- whether any other person or organisation is seeking leave to intervene
- whether the Attorney-General proposes to exercise his or her statutory right to intervene and the position that the Attorney-General intends to take
- the likely impact of the Commission’s intervention on the individuals involved in the litigation2
- whether the issue is an intermediate one or will result in a final determination
- the resource or other administrative implications of the Commission joining the litigation in the context of all its other functions
- any broader strategic issues relating to the role, function or reputation of the Commission.
Whilst the Commission’s intervention may in fact benefit specific individuals or groups, the Commission’s role is to advocate for the Charter and its underlying principles.
The Commission’s interventions will generally focus on questions of law, policy and issues of broader public interest rather than detailed arguments about the facts of a particular case, except to the extent that those facts are relevant to systemic issues or a broader class of persons than is otherwise represented.
Intervention by the Attorney-General
Under section 34 of the Charter the Attorney-General may also intervene in any court or tribunal proceeding involving a question about the application of the Charter, or the interpretation of the law in accordance with the Charter.
The role of the Attorney-General in proceedings is to provide his or her views about how the Charter should be interpreted and implemented. The Attorney-General becomes a party to a proceeding when they intervene.
The Attorney-General has also issued guidelines setting out the factors that the Attorney-General considers when deciding whether or not to intervene.
These Guidelines also contain information about how to serve a Charter notice on the Attorney-General.
The Attorney-General will not ordinarily seek a costs order against a party in a proceeding in which the Attorney-General has intervened. However, a costs order might be sought in appropriate cases, for example where the party that raised the Charter issue abandons it at a late stage in proceedings.
1 Levy v Victoria (1997) 189 CLR 579 per Brennan CJ at 603.
2 The Commission is mindful that in promoting human rights it cannot make intervention decisions without considering the impact of its activities on the individuals involved. This will require a consideration of the social, cultural and political context of the intervention and any other impact that intervention may have on the parties.