HUMAN RIGHTS LAW RESOURCE CENTRE
ROLE OF AMICUS CURIAE AND INTERVENORS IN THE PROMOTION AND PROTECTION OF HUMAN RIGHTS
AMICUS CURIAE AND INTERVENTION COMPARED
There are 2 procedures available in Australian courts which allow third parties to intervene in litigation that is already on foot. These are generally known as amicus curiae or as an intervener.
Authority to add a party to existing proceedings
Rule 9.06(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) allows the Court to add, as a party to proceedings:
a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding.
Amicus curiae and intervener distinguished
The court distinguishes the position of amicus curiae from that of an intervener.
The latter becomes a party to the proceedings with the benefits and burdens of that status. The amicus curiae is limited to the presentation of argument, often at the specific request of the court, on a matter which it seeks or is prepared to receive assistance.
Definition and role of an amicus curiae
An amicus curiae is a “friend of the court” and is not a party to the proceedings. It is defined by the Butterworths Concise Australian Legal Dictionary (2nd ed.) at 23 as “a person, usually a barrister who, with the court’s permission, may advise the court on a point of law or on a matter of practice”.
In Corporate Affairs Commission v Bradley  1 NSWLR 391 at 400 (Bradley) the Court referred to the definition in Jowitt’s Dictionary of English Law, where it stated that an amicus curiae is:
[a] friend of the Court, that is to say a person, whether a member of the Bar not engaged in the case or any other bystander, who calls the attention of the Court to some decision, whether reported or unreported, or some point of law which would appear to have been overlooked.
Basic test governing whether an amicus curiae should be heard
The role of an amicus curiae has traditionally been limited to assisting the Court on points of law or relevant fact which assist the Court and may not otherwise have been brought to its attention, particularly where the decision involves an important question of law affecting the community generally or a person (often disadvantaged) other than the parties.
Courts’ approach to amicus curiae
The power to appoint an amicus curiae is bestowed upon the Court to ensure that it is properly informed of matters which it ought to take into account in reaching its decision: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 (US Tobacco). There is no right to address the court as an amicus. Rather the court has the right to accept the offer of assistance.
In the past, courts have been reluctant to allow amici curiae to appear because of their potential to interfere with the running of the parties’ litigation. For example, the Full Court in US Tobacco stated [at 95] that:
[t]he general principle is that the parties are entitled to carry on their litigation free from interference of persons who are strangers to the litigation… .
In Levy v State of Victoria (1997) 146 ALR 248 (Levy) at 259, Brennan CJ stated that the Court must be cautious in considering applications to be heard by a person who would be an amicus curiae “lest the efficient operations of the Court be prejudiced”. Similarly, in National Australia Bank v Hokit (1996) 39 NSWLR 377 (Hokit), Mahoney P noted that an amicus curiae should not be allowed to intrude upon the detail of the particular relationship between the parties.
Notwithstanding, courts have been prepared to allow persons to act as amicus curiae where the interests of justice require it. For example, the Full Court in US Tobacco said [at 95] that:
[the general principle referred to above is subject to] an overriding right of the court to see that justice is done. An amicus may be heard if good cause is shown for doing so and if the court thinks it proper. Nothing in these reasons should be understood to delimit or restrict the availability or effectiveness of this valuable tool.
The Court also noted [at 95] that:
no strict rules have been developed, no doubt because no person has the right to address the court as an amicus, and it is for the court to accept the assistance of the amicus if it seems proper for the court to do so. In particular, in the present state of the Anglo-Australian authorities … no clear line appears to differentiate that which can never be included as part of the role of an amicus curiae from what in a given case and as a permissible exercise of discretion, the court may permit or require of an amicus.
Generally speaking, the courts will allow a person to act as amicus curiae when the court is of the opinion that “it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected”: Levy per Brennan J.
The criteria governing whether an amicus should be heard
While the circumstances in which a court is permitted to hear an amicus curiae are not prescribed,1 courts have considered one or more of the following when deciding whether to permit a person to act in this capacity:
- the particular circumstances of the case (see Hokit at 381);
- whether it is in the parties’ interests that the amicus curiae be permitted to make its submissions, including whether any delay will unnecessarily prejudice the parties or other litigants who come before the court (see Hokit at 382);
- whether it is in the interests of justice that the amicus curiae be permitted to make its submissions (see US Tobacco at 93);
- whether the court will be significantly assisted by the submissions of the amicus curiae (see Levy);
- whether the court will be assisted in formulating the principle of the law for the relevant jurisdiction (see Hokit at 381);
- whether any costs associated with the submissions of the amicus curiae are justified or disproportionate to the assistance expected (see Hokit at 382); and
- whether the amicus‘ appearance will occupy time unnecessarily (see Hokit at 381).
For example Chief Justice Brennan stated in Levy [at 259-260] that:
[t]he hearing of an amicus curiae is entirely in the court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that the person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way which the Court would not otherwise have been assisted. … It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected. (emphasis added.)
Limitations on amicus curiae
The court has control over the participation of the amicus in the proceedings. It can determine the stage of the proceedings at which it may appear, limit the length of its oral submissions (if any), and impose conditions and award costs against the amicus if its appearance is abused or unnecessarily protracted.2 As a result, it is difficult to determine with any certainty what an amicus is and is not permitted to do.
That said, in the past, the courts have permitted amici curiae to:
- argue a case (see Morelle Ltd v Wakeling  1 All ER 708, referred to by Huntley JA in Bradley  1 NSWLR 391 at 396; and US Tobacco at );
- put forward written submissions on law or a relevant fact (see Levy per Brennan CJ);
- be present for the purpose of supplementing its submissions if necessary (see Victorian Council for Civil Liberties Incorporated v Minister for Immigration and Multicultural Affairs  FCA 1297);
- submit written briefs, eg, in the Land and Environment Court;
- present oral submissions (see Levy per Kirby). However if they are permitted they will usually only be very brief (eg Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams Case); Minogue v Human Rights and Equal Opportunity Commission  84 fcr 438; and Hokit at 382); and
- tender non-controversial pieces of evidence with the consent of the parties, to complete the “evidentiary mosaic” (see Bropho v Tickner (1993) 40 FCR 165 (Bropho)).
However amici curiae have not been permitted to:
- file any pleadings or motions of any kind (see Re Perry (1925) 148 NE Rep 163 at 165 referred to by Huntley JA in Bradley at 396 and by the Court in US Tobacco at );
- reserve any exception to any ruling of the Court (see Re Perry referred to by Huntley JA in Bradley at 396 and by the Court in US Tobacco at );
- prosecute an appeal (see Re Perry referred to by Huntley JA in Bradley at 396; and by the Court in US Tobacco at );
- adduce evidence, examine witnesses or tender any complex or controversial evidence which may impose significant costs and disadvantages on the parties (see discussion below); or
- inspect documents discovered by the parties or participate in interrogatories (see Bradley at 397, as this goes “well beyond the limited role usually conferred upon an amicus“: US Tobacco at ).
Finally, the court will not allow an application of amicus to be heard unless it can be shown that:
- the matter to be heard is of public importance;
- the person can prove that it has some expertise knowledge, information or insight which is not available from the parties;
- the potential cost of amicus is not disproportionate to the potential assistance it may render the court; and
- it is assisting the court in a way that it would otherwise not have been assisted.
Amicus curiae in criminal proceedings and sentence appeals
There is ample precedent for the appearance of amicus curiae in criminal prosecutions. For example, in the context of an unrepresented accused or appellant, courts have sought the assistance of Counsel acting as amicus curiae.3
Whilst the appearance of an amicus curiae in a criminal appeal where the parties are represented will be unusual, there is no reason, in principle, why in appropriate circumstances an amicus curiae should not be heard: The Queen v GJ.4 In R v Young,5 for example, counsel appeared as amicus curiae to make submissions of law where the applicants were represented. The same also occurred in R v Quoc Kinh Phung.6
Definition and role of an intervener
An intervener is a person who becomes a party to the proceedings with all the benefits and burdens of a party: US Tobacco.
A person accepted as an intervener can appeal, tender evidence and participate fully in all respects of the argument. An intervener will also be bound by the decision to which it becomes a party (so far as it applies to them) and may have a costs order made against them or in their favour. In these respects, the role of an intervener is very different to that of an amicus curiae.
Basic test governing whether an intervener should be heard
In order to intervene, a party should establish both a sufficient interest in the proceedings, and that the intervener will provide legal argument not otherwise canvassed by the partes to the proceedings.7 The special interest should be more than “mere intellectual or emotional concern”: Australian Conservation Foundation v South Australia (1988) 53 SASR 349 at 352 per King CJ. Additional submissions should be able to assist the court in reaching a correct determination: if the intervener’s submission is merely repetitive of the submissions of one or other of the parties, efficiency would require that intervention be denied.8
Court’s approach to an intervener
Courts have traditionally been reluctant to permit an intervener to become a party to common law proceedings. In The Tasmanian Dam Case, counsel acting for the Tasmanian Wilderness Society sought leave to intervene as a party. The Court declined to rule on whether the Society should be permitted to intervene but permitted counsel to make oral submissions as amicus curiae.
This said, the courts appear increasingly willing to admit “special interest” interveners – possibly in recognition of the fact that, while the Attorney-General has traditionally been regarded as the representative of the public interest, there is no accepted practice which permits the Attorney General to intervene as of right in ordinary non-constitutional litigation on a matter of public policy.9
In Trop Nominees v Liquor Licensing Commissioner (1987) 46 SASR 25510 (Trop Nominees) Legoe J said at 266 that:
[a]part from the express statutory authority for such intervention it would appear that the non-party intervention may only be allowed where the intervener can provide arguments or facts which will contribute to the courts reaching an informed decision, and where the significance of these arguments or facts is sufficient to outweigh any expense and/or delay which may be caused to the parties by such intervention.
Limitations on intervener
An intervener may be restricted to making submissions relevant to a particular matter but otherwise has all the rights of a party.
An application for an order adding a party shall, unless the court orders otherwise, be supported by an affidavit showing his/her interest in the proceeding or the question to be determined as between him/her and any party to the proceeding: rule 9.07(2). (See also rule 9.11 regarding amendment of proceedings after change of party.)
BLAKE DAWSON WALDRON
1 US Tobacco at 
2 Breen v Williams  35 NSWLR 522 per Kirby P at 533
3 R v Webster (1998) 43 NSWLR 256; R v Lewis  165 CLR 12
4  NTCCA 20 at  per Mildren J
5  45 A Crim R 147
6  3 VR 313
7 See Levy at 600-605 (Brennan CJ); 650-51 (Kirby J); Project Blue Sky & Ors. v Australian Broadcasting Authority (1998) 194 CLR 355 at 359; Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 398-99; S. Kenny ‘Interveners and Amici Curiae in the High Court’, (1998) 20 Adel LR 159
8 Levy at 259
9 See discussion in Kenny J ‘Interveners and Amici Curiae in the High Court’, (1998) 20 Adel LR 159
SOURCE; www.hrlc.org.au/files/HHZCEOJF34/Role of Amicus and Intervenors.DOC