Received: June 5 May, Date of acceptance: September 25, 2020, Date of publication: November 30 2020, DOI: https://doi.org/10.26826/law-in-context.v37i1.127 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 By H. W. Perry Jr1, University Distinguished Teaching Professor, Associate Professor of Law, Associate Professor of Government at The University of Texas at Austin, Orcid: https://orcid.org/0000-0003-2947-8668 and Patrick Keyzer2, Research Professor of Law and Public Policy at La Trobe University, Orcid: https://orcid.org/0000-0003-0807-8366 1 The University of Texas at Austin, USA 2 La Trobe University ABSTRACT Unlike thirty years ago, human rights issues are now routinely raised in Australian constitutional cases. In this ar- ticle, 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 - plicants who seek admission to make oral submissions. Human rights cases raise questions of minority rights that shouldtaken by not Chief be adjudicated Justice Brennan without and input Justice from Kirby, those and minorities. drawing attentionThe authors to therecommend practical thatdifficulties Australia faced adopt by apthe U.S. approach, to admit written submissions as a matter of course, and to allow applicants to make oral submissions establishing legal policy norms for the entire nation, including for the identity groups that increasingly occupy the Court’swhen they attention. have a seriousThe focus and here arguable is on pointAustralia, to make. but theThis argument approach for is consistent the role of with amici the is Court’s more general significant and rolemight of well apply to high courts elsewhere. Keywords – Amicus curiae, constitutional law, human rights, procedural law Disclosure statement – No potential conflict of interest was reported by the authors. License – This work is under Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0) https://creativecommons.org/licenses/by-nc-sa/4.0/ Suggested citation: Perry Jr, H.W. and Keyzer, P., “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): 66-98. DOI: https://doi.org/10.26826/law-in-context.v37i1.127 Summary 1. Introduction 2. Human rights and legal procedures 3. Amici curiae in constitutional cases in the Supreme Court of the United States 4. Amici curiae in constitutional cases in the High Court of Australia 4.1 Introduction 4.2 The perfectly general role of amici curiae at common law 4.3 The development of implied rights and freedoms in Australian constitutional law: developments that have made amici curiae needed 4.4 The enunciation of distinctive tests in Levy v Victoria 4.5 Justice Kirby’s broader approach 5. Conclusion Law in Context, Vol 37, Issue 1; 2020 66 ISSN: 1839-4183 1. INTRODUCTION freedom to discuss political and governmental affairs. There is hardly any political question in the United These developments have been chronicled extensively by Australian constitutional scholars. Indeed, there is States that sooner or later does not turn into a judicial such a large volume of academic literature about this question. jurisprudence that it would be too time-consuming to Alexis de Tocqueville, Democracy in America, 1835 list all of the articles about these cases. But the jurispru- dence, which stems from the High Court’s recognition What was considered a noteworthy observation in in Australian Capital Television Pty Ltd v Commonwealth the 19th Century seems trite today not only because it is (1992) 177 CLR 106 of the implied freedom to discuss so often quoted, but also because even the most casual political and governmental affairs, and its recognition in observer of the U.S. is aware of the important role played Kable v Director of Public Prosecutions (NSW) (1996) 189 by the Supreme Court in addressing social and political CLR 51 of the implication arising from Chapter III of the issues. The Court rules on a wide range of human rights Constitution of the autonomy and integrity of Australian courts, has spawned many, many cases, and indeed, has care, death with dignity, environmental protection, race transformed Australian constitutional law. The Australian andissues: other abortion, forms affirmative of discrimination action, gay to namemarriage, but healtha few. implied rights and freedoms jurisprudence has provided opportunities for the development and expansion of telling to see how constitutional interpretation is front human rights as an aspect of constitutional law (French andOnly center some havein the specific midst ofConstitutional a presidential guarantees. election, espe It is- 2019; O’Neill 1987). In addition, about forty years ago the cially as it relates to these social and human rights issues. In a recent interview with the New York Times, when power to use its power over “external affairs” to imple- asked “What are you looking for in the Supreme Court?” mentHigh Court international confirmed treaty that obligations,the Commonwealth including has human wide Democratic presidential hopeful Vice-President Joe Biden rights obligations, into domestic law (Commonwealth v responded, “They have to have an expansive view of the Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1). Constitution. Recognize the (implied) right, to privacy, These Commonwealth enactments can override State to unenumerated rights that exist in the Constitution" laws to the extent of their inconsistency, under s 109 of (Editorial Board of the New York Times, “Joe Biden”, 17 the Australian Constitution. This can mean that s 109 January 2020). On the other hand, President Donald cases raise questions about the ambit of Federal protec- Trump’s nominee to replace the late Justice Ruth Bader tions of human rights (Mabo v Queensland (1988) 166 Ginsburg, Judge Amy Coney Barrett, is a constitutional CLR 186). Finally, several Australian jurisdictions (the originalist who clerked for the late Justice Antonin Scalia Australian Capital Territory, Victoria and Queensland) and envisions a quite different perspective of what rights have implemented statutory charters of rights along the and whose rights are to be protected. However ask U.S. United Kingdom and New Zealand “dialogue” model (see students why we need the U.S. Supreme Court to have the e.g. Momcilovic v The Queen (2011) 245 CLR 1). These power of judicial review, and no matter their politics or developments have also increased the likelihood that the High Court will be called upon to consider human rights response is inevitably "to protect our rights." questions raised in disputes under these statutes. theoriesToday about an Australian Constitutional law student interpretation, might say their the same first The net result of all of these developments is that thing. But not thirty years ago. The Australian Constitution today, human rights issues are now commonly raised in does not contain a Bill of Rights, so historically, the types Australian constitutional cases. So Australian and U.S. of human rights issues that have featured prominently jurisprudence in Australia’s ultimate, appellate courts, is in U.S. constitutional jurisprudence have not featured more similar than it once was. But can Australian lawyers prominently in Australia. However in the last thirty learn anything from US lawyers about how litigation is years, the High Court has decided that the separation utilized in order to advance human rights? of judicial power effected by Chapter III of the Austral- ian Constitution requires that Australian courts must we will focus on the role of amici curiae in constitutional act and be seen to have independence, autonomy, and litigationWe think raising the answer human is rights yes. Specifically, issues. After in summarizthis article- integrity, and the creation of a system of representative ing the position in the United States, we will review the government by that Constitution gives rise to an implied position in Australia and then offer some thoughts about 67 Law in Context, Vol 37, Issue 1, 2020 ISSN: 1839-4183 what steps could be considered to enlarge opportunities what they can tell us about the Australian approach to for the involvement of amici curiae in Australian litigation. amici curiae. We also believe, however, that the role that amici can and should play as it relates to human rights ultimate courts play in establishing not only legal norms and other broad societal concerns is more general and butIn particular, individual we and argue collective that the values, significant requires role the that type our of goes beyond Australia. Focus on Australia, however, seems broader input that can be provided by amici curiae. As Martha Minow has argued, “[i]magining the range of peo- especially appropriate and timely. We are emboldened ple who share the future requires some actual knowledge in our choice of topic because the Australian High Court of people, and ideally, actual conversations with them” has recognised that U.S. precedents are directly relevant (Minow 2003, p.157). Or as Justice Kirby put it in Levy v Victoria, “I would have allowed them a voice” (Levy v Vic- of judicial power, judicial independence and judicial re- toria (1997) 189 CLR 579, p.652). In this article we argue viewand persuasive (French 2017; when Plaintiff it comes S157/2002 to the significant v Commonwealth topics that the High Court of Australia should hear the voices (2003) 211 CLR 476; Austin v Commonwealth (2003) 215 of people who have traditionally been denied standing, CLR 185, p.262). We believe our work might strengthen who were unable to access court due to the prohibitive costs of doing so, and, most importantly, have seriously arguments in the future about U.S.