Ernst Willheim


I begin with the deliberatively provocative proposition that the approach of the High Court of Australia to amicus applications in constitutional cases is fundamentally flawed. Why? Because the Court determines amicus applications from the narrow perspective of adversarial litigation. This perspective fails to give adequate and necessary recognition to the Court’s role as Australia’s final appellate court and Australia’s constitutional court. It fails adequately to recognise the Court’s lawmaking function. Most importantly, it fails adequately to recognise the broader dimensions of constitutional litigation as public interest litigation affecting the wider community.

On this basis, the questions the Court should properly address are whether it is in the public interest that the proposed amicus submissions be heard, in particular, whether they are relevant and important and whether there is any good reason why the amicus application should not be allowed. The High Court Rules and the Court’s procedures should be adapted to facilitate rather than obstruct amicus applications.