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Section 35 notice instructions

A party to a proceeding must give notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (The Commission) if a question arises regarding how the Charter applies or how to interpret law in accordance with the Charter in a Supreme or County Court proceeding. This is known as a ‘Charter Notice’. This means that both the Attorney-General and the Commission can intervene in legal cases to make legal submissions about the Charter.

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.

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.

Assistance in preparing your notification

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.

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.

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 will be assisted if practitioners provide copies of the relevant court documents together with the notice.

How to submit your notification

The Victorian Equal Opportunity and Human Rights Commission

Address: Legal Unit, The Victorian Equal Opportunity and Human Rights Commission, Level 3, 204 Lygon Street, Carlton Victoria 3053

Email: legal@veohrc.vic.gov.au

Attorney-General of Victoria

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: charter@vgso.vic.gov.au

Interventions by the Commission

The Charter gives the Commission a statutory right to intervene in legal proceedings where a question of law arises about the application of the Charter or the interpretation of another law in light of the Charter.

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.

The Charter gives the Commission a statutory right to intervene in legal proceedings where a question of law arises about the application of the Charter or the interpretation of another law in light of the Charter.

See a list of our legal interventions.

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