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The Amicus Curiae and Intervener in the High Court of Australia: A Comparative Analysis

Published online by Cambridge University Press:  24 January 2025

George Williams
George Williams*
Affiliation:
Faculty of Law, The Australian National University
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Extract

A court's approach to non-parties, such as the amicus curiae and intervener, reflects its perception of its own larger role. The Supreme Courts of Canada and the United States, as well as the Constitutional Court of South Africa, have welcomed submissions from public interest organisations and others and have drafted Rules of Court to allow their participation in cases raising important issues of public policy. The South African Court has even solicited submissions from strangers to the litigation, such as academics, in order to broaden its perspective on a case arid on the consequences of any decision it might reach. The approach of these courts shows how each has embraced the roles of law-maker arid interpreter of an ambiguous constitution.

The High Court of Australia, on the other hand, frequently denies the amicus curiae and intervener any meaningful function. They are riot even mentioned in the Rules of Court. While it is true that the total number of interventions in the Court has increased over the last decade, the door has often been closed.

Type
Research Article
Information
Federal Law Review , Volume 28 , Issue 3 , September 2000 , pp. 365 - 402
Copyright
Copyright © 2000 The Australian National University

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Footnotes

*

This project has been supported by a Canadian Studies Award. I owe thanks to Kate Penhallurick and Lara Shevchenko for their research assistance, Kate particularly in regard to her collection of empirical data; and to Emma Armson, Andrea Loux, Rosemary Owens and Amelia Simpson for their comments on earlier drafts. This study has benefited from comments received at seminars at the University of Victoria, Faculty of Law, the University of Saskatchewan College of Law and Osgoode Hall Law School at York University.

References

1 Development and debate on these issues is also ongoing in the United Kingdom. Scotland is making Rules to govern intervention by public interest organisations, the English Court of Appeal is increasingly allowing interveners under its inherent jurisdiction and the House of Lords continues to hear interveners. See A Loux, “Writing Wrongs: Third-party Interventions and the Human Rights Act” in A Loux (ed), Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR (forthcoming 2000).

2 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 533-534 and 536.

3 Ibid at 534.

4 Lowman, M K, “The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?” (1992) 41 American ULR 1243 at 1243Google Scholar-1244 and 1248-1250.

5 Hill v Clwrcb ofSdentology of Toronto [1995] 2 SCR 1130.

6 Dietrich v The Queen (1992) 177 CLR 292.

7 Murray, C, “Litigating in the Public Interest” (1994) 10 South African Jo on Human Rights 240 at 245CrossRefGoogle Scholar.

8 A Durbach, “Amicus Curiae—Still Stinging from the Rebuff' in Hearing tbe People: Amicus Curiae in Our Courts (Public Interest Advocacy Centre, Paper No 95/16, 1995) 6 at 9.

9 Justice, , A Matter of Public Interest (1996) at 32Google Scholar. See also Bryden, PL, “Public Interest Intervention in the Courts” (1987) 66 Can Bar Rev 490 at 508Google Scholar-510. Compare Imperial Tobacco Ltd v A-G Canada (1988) 55 DLR (4th) 555 at 571 per Chabot J.

10 Wilson, B, “Decision-making in the Supreme Court” (1986) 36 U Toronto LJ 227 at 243CrossRefGoogle Scholar.

11 Koch, J, “Making Room: New Directions in Third Party Intervention” (1990) 48 U Toronto Faculty LR 151 at 151Google Scholar.

12 [1995] 2 SCR 418. See also Reference re Quebec Sales Tax [1994] 2 SCR 715.

13 [1998] 2 SCR 217. See Ryder, B, “A Court in Need and a Friend Indeed: An Analysis of the Arguments of the Amicus Curiae in the Quebec Secession Reference” (1998) 10 Constitutional Forum 9Google Scholar.

14 [1996] 3 SCR 854.

15 [1995] 4 SCR 411.

16 C Murray, above n 7 at 244. See Krislov, S. “The Amicus Curiae Brief: From Friendship to Advocacy” (1963) 72 Yale Lf 694CrossRefGoogle Scholar.

17 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis (1954) 90 CLR 55 at 69 per Kitto J “leave to intervene, when granted, ought not to be interpreted as a general licence to discuss every interesting question in the case but should be acknowledged as limited to the submission of an argument pro interesse suo”.

18 This occurred in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 and Levy v Victoria (1997) 189 CLR 579, where the interveners, but not the amici, were permitted to make oral submissions to the High Court.

19 Crane, BA and Brown, HS, Supreme Court of' Canada Practice 2000 (1999) at 206Google Scholar. For a discussion of the Court's approach to interveners in the pre- and early Charter period, see Dickens, BM, “A Canadian Development: Non-Party Intervention” (1977) 40 MLR 666CrossRefGoogle Scholar; and Welch, J, “No Room at the Top: Interest Group Intervenors and Charter Litigation in the Supreme Court of Canada” (1985) 43 U Toronto Faculty LR 204Google Scholar.

20 See, for example, J Koch, above n 11 at 158 “until very recently, public interest groups were effectively prevented from any meaningful form of intervention. The status of the amicus curiae was essentially pointless, while status as a party was virtually unattainable”.

21 K P Swann, “Intervention and Arnicus Curiae Status in Charter Litigation” in Beaudoin, G A(ed). Charter Cases 1986-87 (1987) 95 at 103 and 99Google Scholar.

22 P L Bryden, above n 9 at 500.

23 J Koch, above n 11 at 160-162. KP Swann, above n 21 at 104-105.

24 Miron v Trudel 11995) 2 SCR 418.

25 Mclnemey v MacDonald [1992] 2 SCR 138; Canadian Pacific Air Lines Ltd v Canadian Air Line Pilots Assn [1993] 3 SCR 724.

26 BA Crane and HS Brown, above n 19 at 204.

27 [1989] 2 SCR 335.

28 Ibid at 339. For an example of the application of these principles, see R v Finta [1993] 1 SCR 1138.

29 BA Crane and HS Brown, above n 19 at 214.

30 [199811 SCR 493.

31 [1997] 3 SCR 925.

32 As at December 1995, LEAF had submitted argument in 23 cases before the Court: Women's Legal Education and Action Fund, Equality and the Charter (1996) at xv.

33 Ibid at xvii. See generally Razack, S, Canadian Femini 1n and the Law: The Women 's Legal Education and Action Fund and the PursuH of Equality (1991)Google Scholar.

34 [1989] 1 SCR 143.

35 Women's Legal Education and Action Fund, above n 32 at 5-25.

36 The Supreme Court has also limited the rights of interveners in other contexts. For example, in R v Marshall (1999) 179 DLR (4th) 193 it held that, while the Court has jurisdiction to entertain an intervener's application for a rehearing, this will be exercised only in exceptional circumstances.

37 R v Morgentaler [1993] 1 SCR 462 at 463 per Sopinka J. See also ibid at 464 per Sopinka J “An intervener cannot introduce a new issue on the ground that it is a response to an argument made by the appellant if the respondent has chosen not to raise the issue.”

38 [1992] 2 SCR 445 at 487.

39 BA Crane and HS Brown, above n 19 at 205. Interveners are rarely permitted to put new evidence before the Court. Compare R v Sioui [1990] l SCR 1025.

40 BA Crane and HS Brown, above n 19 at 205.

41 Ibid at 213.

42 Ibid at 254.

43 Women's Legal Education and Action Fund, above n 32 at ix.

44 Fletcher, J Fand Howe, P, “Public Opinion and the Courts” in Choices: Courts and Legislatures (Institute for Research on Public Policy, May 2000) vol 6 no 3 at 12Google Scholar.

45 Ibid at 16.

46 Ibid at 18.

47 Major, JC, “Jnterveners in the Supreme Court of Canada” (1999) 8(3) National 27 at 27Google Scholar.

48 Quoted in Makin, K, “Intervenors: How Many is Too Many?” Globe and Mail 10 March 2000Google Scholar.

49 JC Major, above n 47 at 28.

50 Quoted in K Makin, above n 48.

51 Klaaren, J, “Becoming Friendly with the Constitutional Court: An Interpretation of the Court's Arnicus Curiae Rules” {1995) 11 South African Jo of Human Rights 499 at 499Google Scholar.

52 S v Makwar yane 1995 (3) SA 391.

53 A Durbach, above n 8 at 8-9.

54 J Klaaren, above n 51 at 508.

55 Ennis, BJ, “Effective Amicus Briefs” (1984) 33 Catholic ULR 603 at 605Google Scholar.

56 Angell, E, “The Amicus Curiae: American Development of English Institutions” (1967) 16 TCLQ 1017 at 1025Google Scholar.

57 Lee v United States, 343 US 924 at 924 (1952) per Frankfurter and Black J.).

58 KP Swann, above n 21 at 107.

59 Kearney, J D and Merrill, T W. “The Influence of Arnicus Curiae Briefs on the Supreme Court” (2000) 148 U Penn LR 743 at 762Google Scholar.

60 Ibid at 762.

61 Kashner, A J, Solving the Puzzle of Interest Group Litigation (1998) at 1Google Scholar. See also Figure 1.1 in ibid at 2 and the statistics set out in E Angell, above n 56 at 1027: Epstein, L. “Interest Group Litigation During the Rehnquist Court Era” (1993)9 Jo of Law and Politics 639Google Scholar; N Hakrnan, “The Supreme Court's Political Environment: The Processing of Noncommercial Litigation” in J Grossman and J Tanenhaus (eds), frontiers of Judicial Research (1969) 199; JD Kearney and T W Merrill, above n 59 at 753; K O'Connor and L Epstein, “Arnicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakrnan's Folklore” (1981- 82) 16 Law& Soc Rev3ll.

62 A J Koshner, above n 61 at 7.

63 438 US 265 (1978).

64 JD Kearney and T W Merrill, above n 59 at 831.

65 492 US 490 (1989).

66 A J Kashner, above n 61 at 10.

67 Ibid at 100-101. JD Kearney and T W Merrill, above n 59 at 825-826 suggest the additional factors of growth in the caseloads of lower courts and a rise in the number of lawyers.

68 E Angell, above n 56 at 1035-1042; PL Bryden, above n 9 at 507-508; JD Kearney and T W Merrill, above n 59 at 757-761; KP Swann, above n 21 at 108-110.

69 D M O'Brien, Storm Center: The Supreme Court in American Politics (3rd ed 1993) at 264.

70 See the examples listed in JD Kearney and T W Merrill, above n 59 at 745 fn 5.

71 367 US 643 (1961).

72 HJ Abraham, The Judicial Process (7th ed 1998) at 261.

73 JD Kearney and T W Merrill, above n 59.

74 Ibid at 750.

75 Ibid at 829.

76 Compare Australian Law Reform Commission, Beyond the Door-Keeper: Standing to Sue for Public Remedies (Report No 78, 1996) at 72 (recommendation that a court must give reasons in making a decision to grant or refuse leave to intervene).

77 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331 per Dixon, J; Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 270Google Scholar; United States Tobacco Co v Mh1ister for Consumer Affairs (1988) 20 FCR 520 at 534; Rushby v Roberts [1983] 1 NSWLR 350 at 354 per Street CJ; Breen v Williams (1994) 35 NSWLR 522 at 532-533 per Kirby P; National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 at 380-381 per Mahoney P. Compare Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396-406 per Hutley JA. Submissions were put to the Court in the jointly heard matters of Lange v Australian Broadcasting Commission and Levy v Victoria setting out arguments for the Court having the jurisdiction to permit intervention. However, while the Court permitted intervention in that litigation, and hence impliedly supported these submissions, it did not actually decide that it possessed the relevant jurisdiction.

78 Jurisdiction might also be inferred from the word “matter” in ss 75 and 76 of the Constitution.

79 The only context in which interveners are mentioned is in the High Court's Practice Directions Nos 2 and 4 of 1996 which dealt with the provision of authorities and legislation, and written submissions, respectively. Practice Direction No l of 2000 has replaced them from June 2000.

80 (1930) 44 CLR 319.

81 Ibid at 331.

82 Ibid.

83 The right was also extended to the Attorneys-General of the Territories in 1983 bys 78AA of the Judiciary Act.

84 The right in s 78A{l) also extends to such matters when they are heard by “any other federal court or any court of a State or Territory”.

85 O'Toole v Charles David Pty Ltd {1991) 171 CLR 310 at 311.

86 Campbell, E, “Intervention in Constitutional Cases” (1998) 9 PLR 225 at 256Google Scholar.

87 (1996) 187 CLR 1.

88 Counsel intervened on behalf of the Northern Land Council, the Central Land Council. the Kimberly Land Council, the Nanga-Ngoona Moora Joonga Association Aboriginal Corporation, the Western Desert Punturkurnuparna Aboriginal Corporation, the Ngaanyatjara Land Council and the Miriwuung and Gajerrong People. While leave to intervene for these organisations was not opposed, the Commonwealth Solicitor-General did state: “we would not wish the fact that such interveners have been granted leave without objection to be regarded as a precedent in other cases where there may be real issues as to appropriateness or interventions”: Wik Peoples v Queensland (transcript, 11 June 1996).

89 (1998) 195 CLR 96.

90 (1999) 166 ALR 258. The interventions were allowed despite objection by the appellant.

91 See also Gerhardy v Brown (1985) 159 CLR 70 where the Anangu Pitjantjatjaraku were given leave to intervene.

92 (1999) 197 CLR 61 at 67.

93 (1999) 161 ALR 399.

94 (1985) 155 CLR 513 at 522.

95 Ibid at 522. See also R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 182 per Kitto J.

96 (1983) 158 CLR I at 50-51. Unusually. the Court allowed the Tasmanian Wilderness Society to make its submissions before deciding on whether to grant leave to intervene. After the submissions were made, Gibbs CJ stated: “We shall treat what you have said as having been said by an amicus curiae”.

97 (1993) 176 CLR 480.

98 (1998) 194 CLR 355.

99 (1998) 194 CLR 395.

100 (1997) 189 CLR 520.

101 (1997) 189 CLR 579.

102 The author appeared on behalf of the Media, Entertainment and Arts Alliance.

103 Levy v Victo1ia (1997) 189 CLR 579 at 601.

104 Ibid at 601.

105 Ibid at 602.

106 Ibid at 603. Compare National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 at 381 per Mahoney P: “ordinarily four matters at least require consideration: whether the intervention is apt to assist the court in deciding the instant case; whether it is in the parties' interest to allow the intervention; whether the intervention will occupy time unnecessarily; and whether it will add inappropriately to the costs of the proceeding”.

107 (1997) 189 CLR 579 at 604.

108 Ibid at 604-605.

109 Ibid at 651.

110 Breen v Williams (1994) 35 NSWLR 522 at 532-533 per Kirby P.

111 (1997) 189 CLR 579 at 651.

112 Ibid at 651-652.

113 Ibid at 651.

114 Ibid at 652.

115 (1997) 190 CLR 1.

116 Kruger v Commonwealth (transcript, 12 February 1996). Compare Blokland, J, “A Feminist Amicus Brief in the Stolen Generations (NT) Litigation” (1997) 3(89) Aboriginal Law Bulletin 10Google Scholar (arguing that feminist issues could usefully have been brought to the attention of the Court by an amicus curiae or intervener).

117 (1995) 183 CLR 245.

118 Durbach, A, “Interveners in High Court Litigation: A Comment” (1998) 20 Adel LR 177 at 178Google Scholar.

119 (1999) 197 CLR 83.

120 Superannuation (Resolution Of Complaints) Act 1993 (Cth).

121 (1999) 197 CLR 83 at 135 per Kirby J: “According to the evidence in support of its application, the Association is the main industry body of the superannuation industry in Australia. It represents all segments of the industry. It has 593 constituent members. Their aggregate assets amount to approximately $290 billion. This is about 80% of the total superannuation funds under management in Australia.”

122 The author appeared on behalf of Association of Superannuation Funds of Australia Ltd.

123 Attorney-General (Cth} v Breckler (transcript, 8 December 1998).

124 (1999) 197 CLR 83 at 136.

125 Lange v Australian Broadcasting Corporation (transcript, 3 March 1997).

126 See also the grant of leave to intervene in Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480.

127 Kenny, S, “Interveners and Arnicus Curiae in the High Court” (1998) 20 Adel LR 159 at 170Google Scholar.

128 Specifically, the finding that superannuation is an “area of private law”. See Wilkinson v Clerical Administrative & Related Employees Superannuation Pty Ltd (1998) 152 ALR 332 at 345-346 per Heerey J and at 357 per Sundberg J. The decision in Wilkinson was applied by the Federal Court in Breckler v Leshem [1998] FCA 57. It was the latter decision that formed the basis of the High Court appeal.

129 (1999) 197 CLR 83 at 136-137.

130 Ibid at 134-135.

131 (2000) 169 ALR 459 at 483-485.

132 Ibid at 485.

133 Ibid at 484.

134 The relevant site is www.lexum.umontreal.ca/csc-scc/en/.

135 The relevant site is www.austlii.edu.au/au/cases/cth/high_ct/.

136 Morton, F L Russell, P Hand Withey, M J, “The Supreme Court's First One Hundred Charter of Rights Decisions: A Statistical Analysis” (1992) 30 Osgoode Hall LJ 1CrossRefGoogle Scholar.

137 Kelly, J B. “The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982-1997” (1999) 37 Osgoode Hall LJ 625 at 639CrossRefGoogle Scholar. The percentage of Supreme Court cases that were Charter cases was 18% for 1982-1992. This figure increased to 27% for 1993-1997.

138 Lange v Australian Broadcasting Commission and Levy v Victo1ia.

139 The intervention in David Grant & Co Pty Ltd v Westpac (1995) 184 CLR 265 was also by a government body, the Australian Securities Commission.

140 Mabo v Queensland (No 2) (1992) 175 CLR 1.

141 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

142 Williams, G, “The High Court and the Media” (1999) l UTSLR 136 at 137-140Google Scholar.

143 The number of cases reported in the Supreme Court Reports and the Commonwealth Law Reports shows that, in recent years. the Supreme Court had decided more than double the number of cases as the High Court (for example. 108 as opposed to 49 in 1995). There was slightly less difference in the number of cases decided ten years before. In 1985, the respective Reports show that the Supreme Court decided 83 cases as against the High Court's 43 cases.

144 A J Kashner, above n 61 at 3.

145 Hein, G, “Interest Group Litigation and Canadian Democracy” in Choices: Courts and Legislatures (Institute for Research on Public Policy. March 2000) vol 6 no 2 at 11Google Scholar.

146 Ibid at 5-7.

147 See, for example, Kruger v Commonwealth and Kartinyeri v Commonwealth (1997) 190 CLR 1.

148 See, for example, R v Swain [1991] 1 SCR 933 (rule of common law, under which a prosecutor could adduce evidence as to the insanity of an accused against the wishes of the accused, was held to breach s 7 of the Charter). Such decisions have led to the making of Rule 32(1) (c) of the Supreme Court Rules, which provides that notification of an upcoming case must be given to the Attorneys-General where it will raise “the constitutional validity or the constitutional applicability of a common law rule”.

149 [1986]2 SCR 573 at 603 per McIntyre J.

150 Women's Legal Education and Action Fund, above n 32 at xxv.

151 Attorney-General (Cth} v Breckler (1999) 197 CLR 83 at 136.

152 This can cause difficulty for directions hearings where they are held. For example. a directions hearing was held in Levy in order to allocate time for oral argument. Brennan CJ, without knowing whether certain organisations would be permitted to intervene, included them in the schedule of argument in case they were granted leave: Levy v Victoria (transcript, 7 February 1997).

153 Compare Garcia v National Australia Bank Ltd (transcript, 4 March 1998). McHugh J stated of the submissions filed by a successful intervener: “I have not read your submissions at all. I deliberately refrained from reading your submissions, so bear that in mind.”

154 Attorney-General (Cth) v Breckler (transcript, 8 December 1998).

155 (1999) 197 CLR 83 at 134: “In answer to my questions, after leave was refused in this case, the Trustees made it clear that they had no objection to resort being had to the Association's written submissions in so far as these dealt with issues of law. I have taken advantage of those submissions in that way.”

156 High Court Rules, Order 51 Rule 6.

157 Transcript, 11-12 September 1996. See Owens, R J, “Interveners and Amicus Curiae: The Role of the Courts in a Modern Democracy” (1998) 20 Adel LR 193Google Scholar; Neville, W, “Abortion Before the High Court—What Next? Caveat Ioterventus: A Note on Superclinics Australia Pty Ltd v CES” (1998) 20 Adel LR 183Google Scholar.

158 Transcript, 11 September 1996.

159 Ibid.

160 Judiciary Act 1903 (Cth), s 23(2).

161 Wainer, J, “Abortion Before the High Court” (1997) 8 Aus Feminist Lf 133 at 137CrossRefGoogle Scholar.

162 Superclinics Australia Pty Ltd v CES (transcript, 11 September 1996).

163 Ibid.

164 The Court stated that while the matter would continue, an adjournment would be allowed if it became necessary.

165 Superclinics Australia Pty Ltd v CES (Transcript, 12 September 1996). According to J Wainer, above n 161 at 137-138, the Women's Electoral Lobby also gave notice to the Court that it intended to intervene.

166 Kruger v Commonwealth (1997) 190 CLR 1.

167 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

168 For a comprehensive treatment of the arguments for and against permitting public interest intervention, see PL Bryden, above n 9 at 505-521.

169 B A Crane and HS Brown, above n 19 at 206.

170 See generally many of the cases examined in G Williams, Human Rights under the Australian Constitution (1999) chs 5-8.

171 Superclinics Australia Pty Ltd v CES (transcript, 11 September 1996).

172 Secretary, Department of Health and Community Servkes v JWTJ and SMB (Marjon's Case) (1992) 175 CLR 218.

173 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Kruger v Commonwealth.

174 Leeth v Commonwealth (1992) 174 CLR 455. Compare Kruger v Commonwealth.

175 Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501.

176 Mason, K, “Prospective Overruling” (1989) 63 ALJ 526Google Scholar; Palmer, Aand Sampford, C, “Judicial Retrospectivity in Australia” (1995) 4 Griffith LR 170Google Scholar.

177 {1997) 189 CLR 465 at 503-504.

178 This was one of the bases upon which the Court allowed intervention by the media interests in Lange and Levy. In those cases, the Court heard argument on whether it should overrule its earlier decision in Theoplianous v Hernld & Weekly Times Ltd {1994) 182 CLR 104.

179 Galligan, B, Politics of' the High Court (1987) at 40Google Scholar: “Legalism has enabled the dignity and independence of the law to be maintained while allowing the Australian High Court to perform a delicate political function in a society that has been divided over important aspects of political ideology and political economy.”

180 (1951) 85 CLR xi at xiv. Compare Brennan, G, “A Critique of Criticism” (1993) 19 Mon ULR 213 at 213Google Scholar: “The rhetoric based on strict and complete legalism masked the truth of the judicial method.”

181 According to Mason, A, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience” {1986) 16 FL Rev 1 at 5Google Scholar, “it is impossible to interpret any instrument, let alone a constitution, divorced from values. To the extent they are taken into account, they should be acknowledged and should be accepted community values rather than mere personal values. The ever present clanger is that 'strict and complete legalism' will be a cloak for undisclosed and unidentified policy values.” See also Sturgess, G and Chubb, P, Judging tl1e Wmld: Law and Politics in the World's Leading Courts (1988) at 345Google Scholar.

182 Smyth, R, “Other Than 'Accepted Sources of Law'?: A Quantitative Study of Secondary Source Citations in the High Court” (1999) 22 UNSWLJ 19Google Scholar.

183 See, for example, above n 1811; A Mason, Mason, A “Should the High Court Consider Policy Implications when Making Judicial Decisions?” (1998) 57 Aus Jo Pub Admin 77CrossRefGoogle Scholar.

184 Mabo v Queensland (No 2).

185 Nationwide News Pty Ltd v Wills, Australian CapHal Television Pty Ltd v Commonwealth; Theophanous v Herald & Weekly Times Ltd, Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.

186 Human Rights and Equal Opportunity Commission Act 1986 (Cth).

187 The Commission's power to hear and make determinations on unconciliated complaints was struck down by the High Court in Brandy v Human Rights and Equal Opportunity Commission. The Court found that the conferral of such powers upon a non-judicial body breached the separation of judicial and executive powers entrenched by the Australian Constitution.

188 See also Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 31(j) and 46PV. Other Acts confer a like power on the Commission: Racial Discrimination Act 1975 (Cth), s 20(1)(e); and the Sex Discrimination Act 1984 (Cth), s 48(1)(gb).

189 See, for example, Marion's Case;, P v P (1994) 181 CLR 583; ZP v PS (1994) 181 CLR 639; Minister for ImmjgraOon and Ethnk Affairs v Teoh (1995) 183 CLR 273; Qantas Airways v Christie (1998) 193 CLR 280; Kartinyeri v Commonwealth (1997) 190 CLR l.

190 Commonwealth Parliament, Senate Legal and Constitutional Legislation Committee, Provisions of the Human Rights Legislation Amendment Bill (No 2) 1998 (February 1999).

191 The Bill now merely states: “Before the Commission seeks leave to intervene in proceedings … the Commission must give the Attorney-General written notice of the Commission's intention to do so together with a statement of why the Commission considers it appropriate to intervene.”

192 Such as in KarOnyeri v Commonwealth.

193 JD Kearney and T W Merrill, above n 59.

194 Attorney-General (Cth) v Breckler (transcript, 19 June 1998).

195 There are other statutes that confer a right to intervene on a government body apart from the Attorney-General. See, for example, Trade Practices Act 1974 (Cth), s 163A(3).

196 (1992) 176 CLR 1.

197 Ibid at 27. See also Nid10las v R (1998) 193 CLR 173 at 208-209 per Gaudron J: “a court [could] not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained … a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”

198 (Transcript, 7 October 1999 and 18 November 1999). See DJL v Central Authority (2000) 170 ALR 659 at 677 per Kirby J: “the… question disappeared when the Attorney-General of the Commonwealth sought and obtained the leave of the Court to intervene and the Attorneys-General for the States and Territories present did not press a claim to be heard.” (1975) 134 CLR 338 at 381.

199 (1975) 134 CLR 338 at 381.

200 Compare H Burmester, “Locus Standi in Constitutional Litigation” in Lee, H P Winterton, G (eds). Australian Constitutional Perspectives (1992) 148Google Scholar (arguing for restricted rules of standing in constitutional cases).

201 A-G (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237 at 272 per Dixon J. See, in the context of the right to bring proceedings with respect to a public wrong, Gouriet v Union of Post Office Workers [1978] AC 435 at 481 per Lord Wilberforce: “it is the exclusive right of the Attorney-General to represent the public interest”. This rule is subject to exceptions: Boyce v Paddington Borough Council [1903] l Ch 109 at 114 per Buckley J. Compare Bateman's Bay Local Aborigfrial Land Council v Aboriginal Commw1ity Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262-263 per Gauclron. Gummow and Kirby JJ and at 278-279 per McHughJ.

202 Roach, K. “The Attorney General and the Charter Revisited” (2000) 50 U Toronto LJ 1 at 26- 27CrossRefGoogle Scholar.

203 D Williams, “Who Speaks for the Judges?”, Address to the Australian Judicial Conference, 3 November 1996.

204 For a catalogue of such criticism. see M Kirby, “Attacks on Judges—A Universal Phenomenon” (1998) 72 AIJ599.

205 Compare, Brennan, G. “The State of the Judicature” (1998) 72 ALJ 33 at 41-42Google Scholar; McLelland, R, “In Defence of the Administration of Justice: Where is the Attorney-General?” (1999) 1 UTSLR 118Google Scholar.

206 B A Crane and HS Brown, above n 19 at 208. See, for example. R v Zundel [1992] 2 SCR 731.

207 (1996) 185 CLR 250.

208 (1999) 196 CLR 297. The Court unanimously refused the application for leave to intervene and, by majority, refused the application to act as arnicus curiae: Papakosmas v The Queen (transcript. 5 March 1999).

209 (1989) 2 SCR 335 at 340.

210 KP Swann. above n 21 at 111.

211 Australian Law Reform Commission, above n 766 at 70-71. See also Australian Law Reform Commission, Standing in the Public Interest (Report No 27. 1985) at 159 and 161. Compare E Campbell, above n 866 at 259-260 and 262.

212 S Kenny, above n 1277 at 169-170. See also A Durbach. above n 1188 at 180; Mason, A, “Interveners and Amici Curiae in the High Court: A Comment” (1998) 20 Adel LR 173 at 175Google Scholar; Re, L, “The Amicus Curiae Brief: Access to the Courts for Public Interest Associations” (1984) 14 MULR 522 at 533Google Scholar. See also the draft rules set out in Justice, above n 9 at 38-39.

213 Australian Law Reform Commission, above n 766 at 69.

214 [1989] 2 SCR 335 at 339.

215 Levy v Victoria (1997) 189 CLR 579 at 604.

216 G Hein, above n 1455 at 16-19. Other factors have been put forward to explain the rise in the number of amicus briefs in the United States Supreme Court. See J D Kearney and TWMerrill, above n 59 at 819-828: AJ Kashner, above n 61 at 11-18.

217 A Mason, above n 2122 at 173.