Decisions made by courts often have consequences that reach far beyond the parties in dispute. By interpreting and applying the law, courts create precedents that affect our lives by shaping our legal rights and responsibilities. Despite this broad impact, a court might only actually hear two perspectives during the decision-making process: The plaintiff’s and the defendant’s.
In the ‘information age’ we live in, many of us wouldn’t even decide which new phone to buy until we gather dozens of perspectives! So how can judges can make fair decisions that potentially affect thousands of people by only considering two perspectives?
Thanks to amicus curiae courts can consider a greater diversity of voices during the decision-making process. In the following three case snapshots, we will see how amicus curiae have assisted the court by sharing their expertise and research.
What is an amicus curiae?
An amicus curiae is a ‘friend of the court’ who has an interest in a legal proceeding, but is not a party in the matter. Amicus curiae assist the court by making submissions about the issues in dispute based on their expertise.
Organisations that might take on the role of amicus curiae include academic bodies, government agencies, law reform groups and NGOs. They might present new information or legal arguments that the parties didn’t present themselves. For example, an academic body might present ground-breaking research on the issues, or an NGO might submit their unique understanding of how the decision could affect minorities. By providing this additional information, amicus curiae help the to court to make a fair and just ruling.
As amicus curiae are not parties to the proceeding, they do not file pleadings or lead evidence, and they cannot lodge an appeal. They must also obtain the court’s permission before filing a submission.
Case Snapshot 1: Clubb v Edwards
The Castan Centre for Human Rights Law at Monash University recently made an amicus curiae submission to the High Court case of Clubb v Edwards. This case involved a challenge to Safe Access Zone legislation that criminalises protesting outside abortion clinics.
The Appellant, Kathleen Clubb, is a member of an anti-abortion group. The group organised protests outside a Melbourne abortion clinic six days a week for more than 20 years. In October 2017, Clubb was found guilty of ‘prohibited behaviour’ within the Safe Access Zone outside the clinic, after allegedly approaching a couple outside an abortion clinic and trying to hand them pamphlets. The Magistrate found that she had engaged in communication about abortions which was reasonably likely to cause anxiety or distress.
Amicus curiae submissions
The Castan Centre’s amicus curiae submission was based on their research into the impact of protests at abortion clinics on patients and staff. This research showed that abortion clinic protesters verbally abused patients, displayed violent images and even chased women seeking access to clinics. This behaviour had a devastating impact for patients and staff, sometimes resulting in trauma requiring additional medical care.
In light of these findings, the Castan Centre argued that any restriction on political communication imposed by the Safe Access Zone legislation is justified because it protects the privacy, safety and wellbeing of patients and staff within the safe access zones. They also contended that the legislation is reasonably appropriate and adapted to achieving these ends. The submission concluded that the Safe Access Zone legislation does not pose any risk to Australia’s system representative and responsible government, and therefore, it does not violate the freedom of political communication.
In this case, the Castan Centre’s submission assisted the Court by providing empirical evidence about how the Safe Access Zone legislation affects the community. In particular, it highlighted the potential harm that abortion clinic patients and staff may face if the legislation were found to be invalid. It also provided legal expertise on how the implied freedom of political communication should be interpreted and applied.
Case Snapshot 2: Doggett v Commonwealth Bank of Australia
The case of Doggett v Commonwealth Bank of Australia involved a company entering into a loan agreement with a bank in order to finance a small business. The loan was guaranteed by the company’s two directors. However, the company was unable to repay the loan, and so the bank sought to enforce the guarantees against the directors.
When the proceedings began, the directors were assisted by legal counsel to draft their pleadings. The pleadings claimed that the directors should not be liable for the debt because the bank had breached its obligations under The Code of Banking Practice (‘the Code’). The Code provides that banks will exercise care and diligence in forming a view on the borrower’s ability to repay a loan.
At trial, the directors were no longer assisted by legal counsel. As self-represented litigants, they were unable to provide the Court with technical legal arguments about the application of the Code to the guarantee. Consequently, the Judge sought amicus curiae counsel to provide the legal expertise that was lacking. A team of barristers from the Victorian Bar took on this role.
Amicus curiae submissions
In this case, the Bank’s lawyers had already provided the Court with legal arguments from the Bank’s perspective. As a result, it fell to the amicus curiae counsel to assist the court by providing counter-arguments. Thus, in effect, the amicus curiae submissions advanced the directors’ case by indirectly putting their perspective to the Court. Thanks to the amicus curiae counsel, the self-represented directors had a chance to succeed against the Bank.
In theory, amicus curiae submissions provide independent expertise as an impartial third party. However, in an adversarial system it is almost inevitable that amicus curiae submissions will assist one party to the detriment of the other. This case illustrates how amicus curiae can improve access to justice in cases where litigants are self-represented, despite the fact that the amicus curiae role is theoretically impartial.
The amicus curiae submissions also assisted the court to set a fair precedent when answering a new legal question. Since future loan disputes will be decided according to this precedent, it is important that the court’s decision be grounded in submissions from able legal counsel.
Based on the arguments of the amicus curiae counsel, the Court decided that the Code did apply to the guarantee and that the Bank breached the Code by granting the loan. However, the Directors were ultimately unsuccessful because they had previously agreed not to take further legal action against the Bank.
Case snapshot 3: Re Jamie
Interveners and amicus curiae
In Re Jamie, The Human Rights Commission (‘the Commission’) made a submission as an intervener, rather than as an amicus curiae. Unlike amicus curiae, interveners become parties to the proceeding and can have orders made in relation to them. Under federal legislation, the Commission has the power to intervene in human rights cases with leave of the Court. But just like the amicus curiae role, the intervener role enables the Court to access expert assistance, such as the Commission’s expertise in human rights.
Re Jamie involved a transgender 15-year-old wishing to undergo treatment for gender dysphoria. Jamie was assigned as male at birth but identified as female from a very young age. In this case, the Family Court was considering whether court authorisation was required for the treatment.
Gender dysphoria treatment involves two stages. Stage 1 is reversible, and it involves giving the child puberty blockers when they are around ten or 11 years old. Stage 2 involves giving the child cross-gender hormones to encourage physical changes in the child’s body that align with his or her subjectively experienced gender. Stage 2 is irreversible and can start when the child is around 16 years old.
The Commission’s submission explained that obtaining Court authorisation for gender dysphoria treatment was difficult, expensive and stressful for children and their families. It also discussed the negative impact of the process on the child’s wellbeing as it may impede or delay their access to treatment. This is particularly troubling given the high rates of self-harm and suicide for transgender children.
The submission provided expertise on Australia’s international human rights obligations under the Convention on the Rights of the Child. It proposed that Court authorisation should not be required for Stage 1 treatment. For Stage 2, the Commission proposed that the Court should first determine whether the young person is capable of consenting to the treatment. If so, then the Court should find that authorisation for the treatment is not required because the child has the maturity to consent to the treatment themselves.
In agreement with the Commission’s submission, the Family Court held that Stage 1 treatment did not require court approval and that Stage 2 required the Court to assess the child’s competency before treatment could be carried out. This decision was criticised because it still required families to go to Court before the child can access treatment.
In the 2017 case of Re Kelvin, the Family Court departed from the decision in Re Jaime. In light of developments in our medical understanding of gender dysphoria, the Court determined that it was not necessary for the Court to assess the child’s competence before commencing Stage 2 treatment.
These three cases have shown that amicus curiae (and interveners) can improve judicial decision-making by providing courts with expertise on the issues in dispute. By providing courts with a greater variety of perspectives throughout the decision-making process, the role of amicus curiae may enhance inclusivity and procedural justice. The amicus curiae role may also improve the quality of decision-making by ensuring that rulings are based on accurate information and the most compelling legal arguments. In this way, amicus curiae make valuable contributions to the administration of justice.
Many thanks to Chris Brown from the Victorian Bar for providing his insight on Doggett v Commonwealth Bank of Australia.