Section 35 notice

Section 35 of the Charter provides that:

A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if–

  • in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or
  • in any case, a question is referred to the Supreme Court under section 33.

Further, subsection 36(4) of the Charter provides that:
The Supreme Court must not make a declaration of inconsistent interpretation unless the Court is satisfied that–

  • notice in the prescribed form has been given to the Attorney-General and the Commission under sub-section (3); and
  • a reasonable opportunity has been given to the Attorney-General and the Commission to intervene in the proceeding or to make submissions in respect of the proposed declaration of inconsistent interpretation.

To assist in preparing your notification the Commission has created a Word version of the Notice To The Attorney-General/The Victorian Equal Opportunity And Human Rights Commission, which can be accessed below.

Practitioners are expected to file the section 35 notice and serve it on all other parties to the proceeding on the same day as it is served on the Commission and the Victorian Attorney-General. Parties should be aware that the Commission will use its best endeavours to respond to the notice within 14 days of being served. The Commission will be assisted if practitioners provide copies of the relevant court documents together with the notice.

Supreme Court practice note 3 of 2008 requires 14 days' notice when Charter issues are being raised in that court.

The Commission's fax and email address for the purpose of notification:
Fax: 1300 286 834
Email: legal@veohrc.vic.gov.au 

To notify the Attorney-General of Victoria a notice should be served on both Catherine Roberts, Managing Principal Solicitor, and Jessica Cleaver, Managing Principal Solicitor, at the Victorian Government Solicitor's Office by fax or email:
Fax: (03) 8684 0449
Email: catherine.roberts@vgso.vic.gov.au and jessica.cleaver@vgso.vic.gov.au

There is no need for the Commission to demonstrate any link between the intervention it intends to undertake and its other functions. Section 41 of the Charter specifies that the Commission’s functions extend to ‘any other function conferred under this Charter’, which includes the broad intervention functions outlined above.