Amici Curiae and Access to Constitutional Justice in the High Court of Australia

I begin with the deliberatively provocative proposition that the approach of the High Court of Australia to
amicus applications in constitutional cases is fundamentally flawed. Why? Because the Court determines
amicus applications from the narrow perspective of adversarial litigation. This perspective fails to give
adequate and necessary recognition to the Court's role as Australia's final appellate court and Australia's
constitutional court. It fails adequately to recognise the Court's lawmaking function. Most importantly, it fails
adequately to recognise the broader dimensions of constitutional litigation as public interest litigation
affecting the wider community.
On this basis, the questions the Court should properly address are whether it is in the public interest that the
proposed amicus submissions be heard, in particular, whether they are relevant and important and whether
there is any good reason why the amicus application should not be allowed. The High Court Rules and the
Court's procedures should be adapted to facilitate rather than obstruct amicus applications.