Human Rights issues in constitutional courts : Why Amici Curiae are important in the U.S., and what Australia can learn from the U.S. experience

Journal article


Perry Jr, H. W. and Keyzer, Patrick. (2020). Human Rights issues in constitutional courts : Why Amici Curiae are important in the U.S., and what Australia can learn from the U.S. experience. Law in Context. 37(1), pp. 66-98. https://doi.org/10.26826/law-in-context.v37i1.127
AuthorsPerry Jr, H. W. and Keyzer, Patrick
Abstract

Unlike thirty years ago, human rights issues are now routinely raised in Australian constitutional cases. In this article, the authors examine the role of the amicus curiae in the United States Supreme Court and consider how far and to what extent the amicus curiae device has been accepted in decisions of the High Court of Australia. The authors analyse the High Court’s treatment of applications for admissions as amici curiae, noting the divergent approaches taken by Chief Justice Brennan and Justice Kirby, and drawing attention to the practical difficulties faced by applicants who seek admission to make oral submissions. Human rights cases raise questions of minority rights that should not be adjudicated without input from those minorities. The authors recommend that Australia adopt the U.S. approach, to admit written submissions as a matter of course, and to allow applicants to make oral submissions when they have a serious and arguable point to make. This approach is consistent with the Court’s significant role of establishing legal policy norms for the entire nation, including for the identity groups that increasingly occupy the Court’s attention. The focus here is on Australia, but the argument for the role of amici is more general and might well apply to high courts elsewhere.

Keywordsamicus curiae; constitutional law; human rights; procedural law
Year2020
JournalLaw in Context
Journal citation37 (1), pp. 66-98
PublisherFederation Press Pty Ltd
ISSN0811-5796
Digital Object Identifier (DOI)https://doi.org/10.26826/law-in-context.v37i1.127
Open accessOpen access
Research or scholarlyResearch
Page range66-98
Publisher's version
License
File Access Level
Open
Output statusPublished
Publication dates
Online30 Nov 2020
Publication process dates
Deposited02 Sep 2021
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