Amicus curiae and intervener roles for the Australian Information Commissioner

Proposal 15–3 The Privacy Act 1988 (Cth) should be amended to confer the following additional functions on the Australian Information Commissioner in relation to court proceedings relating to interferences with the privacy of an individual:

(a) assisting the court as amicus curiae, where the Commissioner considers it appropriate, and with the leave of the court; and

(b) intervening in court proceedings, where the Commissioner considers it appropriate, and with the leave of the court.

15.36 The ALRC has proposed that the Australian Information Commissioner be given new functions to act as amicus curiae or to intervene in legal proceedings relating to the information privacy. These functions would be additional to a range of existing functions conferred on the Commissioner under ss 27–29 of the Privacy Act 1988 (Cth), including:

  • specific functions under the Privacy Act (such as responding to complaints from individuals);

  • guidance related functions (preparing guidance about and promoting understanding of the requirements of the Privacy Act);

  • monitoring related functions (ensuring that APP entities are meeting the requirements of the Privacy Act and ensuring that any privacy impacts of new laws, practices or proposals are minimised); and

  • advice related functions (providing advice about the operation of and compliance with the Privacy Act, and any need for legislative action).

15.37 These additional functions would be similar to functions conferred on other administrative bodies, such as the ACCC, ASIC and the Human Rights Commission.

The role of an amicus curiae

15.38 The role of an amicus curiae (‘friend of the court’) is to assist the court ‘by drawing attention to some aspect of the case which might otherwise be overlooked.’[30] 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’.[31] 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’.[32] An amicus curiae is not a party to the proceedings and is not bound by the outcome of the proceedings. In Re United States Tobacco Company, Einfeld J noted the value of amici curiae, particularly as subjects of increasing complexity are brought before the courts:

The variegated complexity of modern life and technology, increasing materialism and the possible risks to the public of otherwise lauded scientific advances, have brought consequent significant legal challenges. These have been amplified not minimally by the burgeoning of statutory law expressing vague general principles and requiring the exercise of broad undefined judicial discretions. For the just resolution of these issues, the resultant mix beckons, if not requires, whatever assistance and expertise the Courts can reasonably muster.[33]

15.39 An example of legislation conferring an amicus curiae function onto an administrative body can be found in s 46PV of the Australian Human Rights Commission Act 1986 (Cth). This section allows individual Commissioners (‘special-purpose Commissioners’) within the Commission to act as amici curiae, with the court’s leave:

(1) A specialpurpose 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 specialpurpose 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 specialpurpose Commissioner, have significant implications for the administration of the relevant Act or Acts;

(c) proceedings that involve special circumstances that satisfy the specialpurpose Commissioner that it would be in the public interest for the specialpurpose Commissioner to assist the court concerned as amicus curiae.

15.40 Importantly, an amicus curiae does not have a legal interest in the outcome of proceedings. A person with a legal interest in proceedings may instead, with the leave of the court, intervene in the proceedings.

The role of an intervener

15.41 The role of amicus curiae can be distinguished from the role of an intervener. While the role of an amicus curiae is to assist the court, the role of an intervener is to represent the intervener’s own legal interests in proceedings.

15.42 An intervener’s legal interests may be affected in a number of ways. First, 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. Second, the intervener’s interests may be less directly affected. For example, the court’s decision might have an effect on the future interpretation of laws affecting the intervener.[34] Under the ALRC’s proposal, a court might, for example, give leave to the Australian Information Commissioner to intervene in a case that would have future repercussions for the work of the OAIC.

15.43 Functions to intervene are conferred upon a number of administrative bodies. For example, s 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) confers an intervention function on the Australian Human Rights Commission:

where the [Australian Human Rights 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[.][35]

15.44 The Australian Competition and Consumer Commission (ACCC) has an intervention function in relation to proceedings under the Competition and Consumer Act 2010 (Cth).[36] The Australian Securities and Investments Commission has an intervention function in relation to proceedings about consumer protection in financial services.[37]