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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.

The Commission will endeavour to respond to a section 35 notice within 14 days of it being served, in accordance with Supreme Court Practice Note SC Gen 14 (2017). The Commission's contact details for the purpose of notification are:

Address: Victorian Equal Opportunity and Human Rights Commission, Legal Unit, Level 3, 204 Lygon Street, Carlton Victoria 3053
Email: [email protected] 

To notify the Attorney-General of Victoria a notice should be served on the Victorian Government Solicitor's Office:

Address: Victorian Government Solicitor on behalf of the Attorney-General, Level 25, 121 Exhibition Street, Melbourne Victoria 3000
Email: [email protected]

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.

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