Court interventions: advocating for human rights in our courts and tribunals

The Human Rights Act requires the Commission to be notified of all Supreme Court proceedings which involve application of the Human Rights Act. The Human Rights Commissioner may also intervene in any court and tribunal proceeding that raise human rights, if allowed to do so by the court. When the Commissioner intervenes in a court case, she is an independent advocate for human rights and can explain how the Human Rights Act should be interpreted and applied. The Commissioner does not represent or advocate for individual parties and cannot start a court case about a human rights matter.

The Commission’s intervention guidelines explain in more detail the obligation to the notify the Commission and the factors that the Human Rights Commissioner will consider when deciding whether or not to seek leave to intervene in legal proceedings.

Notify us of a human rights matter

We encourage parties in court or tribunal proceedings to notify us about any case that raises human rights, or to contact us with questions about our intervention work.

Recent interventions

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83

This case considered whether ACT Corrective Services had respected a detainee’s minimum entitlement to one hour of open air and exercise as required under s 45 of the Corrections Management Act 2007 (CMA). The detainee was subject to separate confinement in the Management Unit at the AMC, and at issue was whether granting the detainee access to an enclosed rear courtyard (approximately the same dimensions as their cell, with four solid walls and metal mesh overhead) met those obligations. The right to humane treatment when deprived of liberty in s 19(1) of the HR Act was central to the proceedings.

The ACT Supreme Court held that access to the rear courtyard of the Management Unit did not comply with s 45 of the CMA, and also declared invalid a clause in a June 2019 operating procedure by reason of it being inconsistent with s 45 of the CMA. The court further declared that the defendant had breached the detainee’s human rights under s 19(1) of the HR Act and issued a declaration of incompatibility with respect to cl 4.3 of the 2019 operating procedure.

The decision is significant for its detailed discussion of public authority obligations and how to use the HR Act to interpret legislation compatibly with human rights. It is also only the second instance of a declaration of incompatibility being issued by the ACT Supreme Court and comes more than ten years after the first declaration was made in 2010.

See a case note (PDF 248KB Word 36KB), our submission (PDF 373KB) and our submission in reply (373 PDF KB).

R v QX (No 2) [2021] ACTSC 244

The ACT Supreme Court confirmed that the appointment of an intermediary, in and of itself, does not engage an accused’s right to a fair hearing or their right to examine witnesses on the same terms as the prosecution (as recognised in s 22(2)(g) of the HR Act). In reaching its decision, the court also affirmed that a fair trial involves a “triangulation of interests” of taking into account the position of the accused, the victim and his or her family, and the public. The decision is a timely recognition of the role of witness intermediaries in upholding the rights of complainants in the conduct of court proceedings, including equality, protection of children and the right to a fair hearing.

See a full case note (PDF 251 KB Word 33 KB) and our submission (PDF 328 KB).