Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council

[2006] FCA 1214

FEDERAL COURT OF AUSTRALIA

Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2006] FCA 1214

ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC v HERVEY BAY CITY COUNCIL
QUD 76 OF 2006

COLLIER J
5 SEPTEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 76 OF 2006

BETWEEN:	ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
AND:	HERVEY BAY CITY COUNCIL Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	5 SEPTEMBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Acting Disability Discrimination Commissioner be granted leave to appear as amicus curiae in the proceedings and to make oral submissions.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 76 OF 2006

BETWEEN:	ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC Applicant
AND:	HERVEY BAY CITY COUNCIL Respondent

JUDGE:	COLLIER J
DATE:	5 SEPTEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 11 August 2006, the Acting Disability Discrimination Commissioner (‘the Commissioner’) filed a notice of motion seeking leave to appear as amicus curiae in these proceedings.  The notice of motion was supported by an affidavit of the Commissioner affirmed on 11 August 2006.  The Commissioner seeks leave today to make submissions orally and in writing in relation to issues of law arising in the present proceedings.

2. Clearly, the Court should exercise caution in considering applications made by those seeking to be heard as amicus curiae. However, s 46PV of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), to which I will refer as ‘the HREOC Act’, defines the Commissioner as a ‘special purpose Commissioner’, with the function of assisting the Federal Court and the Federal Magistrates Court as amicus curiae in relevant proceedings. The formulation of a relevant view or opinion under s 46PV(1) by a special purpose Commissioner enlivens this function.

3. In the case before me, the affidavit of the Commissioner dated 11 August 2006 deposes as to the formulation of the requisite opinion of the Commissioner under s 46PV(1).

4. The function of assisting the Court as amicus curiae may nonetheless only be exercised with the leave of the Court: s 46PV(2).

5. As a general proposition, it was pointed out by Brennan CJ in Levy v State of Victoria (1997) 189 CLR 579 that:

   ‘The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant facts which will assist the Court in a way in which the Court would not otherwise have been assisted.’ (emphasis added)

6. The amicus curiae function conferred on the special purpose Commissioners under the HREOC Act, in my view indicates acknowledgment by Parliament that the Court can obtain useful assistance from the Commissioners as statutory amicus curiae.  In the HREOC Act, Parliament also recognised the position, expertise and knowledge of the Commissioners, and I note the duties and functions of the Commission as set out in s 10A and s 11 of the HREOC Act to that effect.  In particular, s 11(1)(o) states that:

   ‘Where the Commissioner considers it appropriate to do so with the leave of the Court hearing the proceedings, and subject to any conditions imposed by the Court, the Commission has a function of intervening in proceedings that involve human rights issues.’

7. On the basis of submissions from Counsel made immediately before I delivered this judgment, it is clear that the hearing so far as concerns the Constitutional issues raised by the respondent in the substantive matter will now be adjourned.  However, in my view there are other matters of policy and principle at stake, and there are other issues involved which will also have the potential to affect the human rights of parties who are not parties to the proceedings.  I note that the applicants in the substantive matter are neither consenting nor opposing the application for leave of the Commissioner to appear as amicus curiae, and the respondent does not oppose the application.  However, Ms Eastman for the applicants in the substantive matter opposed the making of oral submissions by Mr Lenehan on behalf of the Commissioner.

8. I am not sure, given that the Constitutional issues have been adjourned, whether that opposition remains.  In any event, in my view, the Court would be assisted by oral submissions in support of the Commissioner’s written submissions, and by the Commissioner assisting the Court in the role of amicus curiae.

9. Mr Lenehan indicated before I delivered judgment that in view of the fact that the Constitutional issues had been adjourned, those submissions would go to more than five minutes in length, and I grant him leave to make oral submissions on that basis.  Given the concern of the applicants in the substantive matter in relation to this hearing going no more than half a day, I propose that the hearing continue into the lunch adjournment to ensure the parties have adequate time to present their argument, if necessary, and also keeping in mind the commitments of interstate counsel and legal representatives.

10. Accordingly, I grant the Acting Disability Discrimination Commissioner leave to appear as amicus curiae in these proceedings and to make oral submissions.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       8 September 2006

Counsel for the Applicant:	Kate Eastman
Solicitor for the Applicant:	Public Interest Advocacy Centre
Counsel for the Respondent:	Ken Fleming QC and Rick Green
Solicitor for the Respondent:	MacDonnells
As Amicus Curiae	Craig Lenehan
As Amicus Curiae	Acting Disability Discrimination Commissioner
Date of Hearing:	5 September 2006
Date of Judgment:	5 September 2006