Recommendation 16–2 The following functions should be conferred on the Privacy Commissioner:
(a) to assist a court as amicus curiae, where the Commissioner considers it appropriate, and with the leave of the court; and
(b) to intervene in court proceedings, where the Commissioner considers it appropriate, and with the leave of the court.
16.33 The ALRC recommends that the Privacy Commissioner be given new functions to act as amicus curiae (‘friend of the court’) or to intervene in legal proceedings relating to serious invasions of privacy. These functions would be additional to a range of existing functions conferred on the Commissioner under Privacy Act 1988 (Cth) ss 27–29, including: preparing guidance about the Act; monitoring the privacy impacts of new laws; and providing advice about the operation of the Act.
16.34 These amicus curiae and intervener functions would be similar to functions conferred on other administrative bodies—such as the Australian Competition and Consumer Commission (ACCC), the Australian Securities and Investments Commission (ASIC) and the AHRC.
16.35 Stakeholders who commented on the ALRC’s proposal were generally supportive of the Commissioner being given amicus curiae and intervener functions. The Office of the Australian Information Commissioner (OAIC) suggested that it should be given amicus curiae and intervener roles in its submission to the Issues Paper. In its submission to the Discussion Paper, the OAIC noted that amicus curiae and intervener roles would be particularly appropriate if the OAIC had a greater role in hearing complaints about serious invasions of privacy.
16.36 It is likely that, if a statutory cause of action for serious invasions of privacy were enacted, there would be an increase in the number of claims relating to the intentional disclosure of personal information. In such cases, the Commissioner may be in a position to assist the court as amicus curiae, or to represent the Commissioner’s interests as an intervener.
An amicus curiae function for the Commissioner
16.37 The role of an amicus curiae is to assist the court ‘by drawing attention to some aspect of the case which might otherwise be overlooked.’ An amicus curiae may ‘offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted’. The amicus is not a party to the proceedings and is not bound by the outcome of the proceedings. This role does not extend to introducing evidence to the court, although an amicus may be permitted to lead non-controversial evidence in order to ‘complete the evidentiary mosaic’.
16.38 An example of legislation conferring an amicus curiae function on an administrative body is s 46PV of the Australian Human Rights Commission Act 1986 (Cth). This section allows an individual (‘special-purpose’) Commissioner within the AHRC to act as amicus curiae, with the court’s leave:
(1) A special-purpose Commissioner has the function of assisting the Federal Court and the Federal Circuit Court, as amicus curiae, in the following proceedings under this Division:
(a) proceedings in which the special-purpose Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;
(b) proceedings that, in the opinion of the special-purpose Commissioner, have significant implications for the administration of the relevant Act or Acts;
(c) proceedings that involve special circumstances that satisfy the special-purpose Commissioner that it would be in the public interest for the special-purpose Commissioner to assist the court concerned as amicus curiae.
16.39 Importantly, an amicus curiae does not have a legal interest in the outcome of the proceedings. Any person with a legal interest in proceedings may, with the leave of the court, intervene in the proceedings.
An intervener function for the Commissioner
16.40 The role of amicus curiae can be distinguished from the role of an intervener. While the role of amicus is to assist the court, the role of an intervener is to represent the intervener’s own legal interests in proceedings.
16.41 An intervener’s legal interests may be affected in a number of ways. The intervener’s interests may be directly affected by the court’s decision. For example, a decision about the property interests of the parties to proceedings might also affect the property interests of the intervener. The intervener’s interests may also be indirectly affected: for example, the court’s decision might have an effect on the future interpretation of laws affecting the intervener. Under the ALRC’s recommendation, a court might, for example, give leave to the Commissioner to intervene in a case that would have future repercussions for the work of the Commissioner.
16.42 Functions to intervene are conferred upon a number of administrative bodies. For example, s 11(1)(o) of the Australian Human Rights Commission Act confers an intervention function on the AHRC:
where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues.
16.43 The ACCC has an intervention function in relation to proceedings under the Competition and Consumer Act 2010 (Cth). ASIC has an intervention function in relation to proceedings about consumer protection in financial services.
T Butler, Submission 114; Australian Privacy Foundation, Submission 110; Office of the Victorian Privacy Commissioner, Submission 108; Public Interest Advocacy Centre, Submission 105; S Higgins, Submission 82; I Turnbull, Submission 81; Guardian News and Media Limited and Guardian Australia, Submission 80; G Greenleaf, Submission 76.
Office of the Australian Information Commissioner, Submission 66.
Office of the Australian Information Commissioner, Submission 90.
Bropho v Tickner (1993) 40 FCR 165, 172 (Wilcox J). On the role of an amicus curiae generally, see Australian Law Reform Commission, Beyond the Door-Keeper: Standing to Sue for Public Remedies, Report 78 (1996) Ch 6.
Levy v Victoria (1997) 189 CLR 579, 604 (Brennan CJ).
Bropho v Tickner (1993) 40 FCR 165, 172 (Wilcox J).
Levy v Victoria (1997) 189 CLR 579, 601–602 (Brennan CJ).
The Australian Human Rights Commission also has intervention functions, see for example, Australian Human Rights Commission Act 1986 (Cth) s 31(j); Sex Discrimination Act 1984 (Cth) s 48(1)(gb); Racial Discrimination Act 1975 (Cth) s 20(e); Disability Discrimination Act 1992 (Cth) s 67(1)(1); Age Discrimination Act 2004 (Cth) s 53(1)(g).
Competition and Consumer Act 2010 (Cth) s 87CA.
Australian Securities and Investments Commission Act 2001 (Cth) s 12GO.