The Road Less Travelled

Fuller Lon , ‘Forms and Limits of Adjudication’, (1978) 92 Harvard Law Review 353–409; although see Bone R.G. , ‘Lon Fuller's theory of adjudication and the false dichotomy between dispute resolution and public law models of litigation,’ (1995) 75(5) Boston University Law Review 1273–1324, who questions distinctions between public and private litigation models.

Shapiro Martin M. , Courts: A Comparative and Political Analysis, University of Chicago Press, 1981.

Chayes Abram , ‘The Role of the Judge in Public Law Litigation’, (1976) 89 Harvard Law Review 1281–4; Fiss Owen M. , ‘Foreword: The Forms of Justice’, (1979) 93 Harvard Law Review 39–44; Fiss Owen M. , ‘The Social and Political Foundations of Adjudication’, (1982) 6 Law and Human Behavior 121.

Lawrence Susan E. , The Poor in Court: The Legal Services Program and Supreme Court Decision Making, Princeton University Press, 1990; Olson Susan M. , ‘Interest-Group Litigation in Federal District Court: Beyond the Political Disadvantage Theory’, (1990) 52(3) The Journal of Politics 854–82.

Judiciary Act 1903 (Cth), s.78B.

See Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391.

Campbell Enid , ‘Intervention in Constitutional Cases’, (1998) 9 Public Law Review 225.

Williams George , ‘The Amicus Curiae and Intervener in the High Court of Australia: A Comparative Analysis’, (2000) 28 Federal Law Review 365–402.

Main v Main (1949) 78 CLR 636; Blundell v Musgrave (1956) 96 CLR 73; Armstrong v The State Of Victoria (No 2) (1957) 99 CLR 28; Russell v Walters (1957) 96 CLR 177; Lamshed v Lake (1958) 99 CLR 132; James v Robinson (1963) 109 CLR 593; The Queen v Public Vehicles Licensing Appeal Tribunal (Tas.); Ex Parte Australian National Airways Pty Ltd (1964) 113 CLR 207; The Queen v Cook; Ex Parte Twigg (1980) 147 CLR 15; Victoria v Australian Building Construction Employees' And Labourers' Federation (No 2) (1982) 152 CLR 179; The Commonwealth of Australia v Tasmania. (the Tasmanian Dam Case) (1983) 158 CLR 1; Wentworth v New South Wales Bar Association (1992) 176 CLR 239; Matter No M38 of 1995 David Grant And Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation FC 95/039 (1995) 184 CLR 265; David Russell Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Laurence Nathan Levy v The State Of Victoria & Ors (1997) 146 ALR 248; Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 153 ALR 490.

Kearney Joseph D. Merrill Thomas W. , ‘The Influence of Amicus Curiae Briefs on the Supreme Court’, (2000) 148 University of Pennsylvania Law Review 743–855.

Epp Charles R. , The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective, University of Chicago Press, 1998; Williams George , ‘The Amicus Curiae and Intervener in the High Court of Australia: A Comparative Analysis’, (2000) 28 Federal Law Review 365–402; Brodie Ian , Friends of the Court: The Privileging of Interest Group Litigants in Canada, State University of New York Press, 2002.

The words ‘intervener’ and ‘intervention’ are used in this section generically for both formal interveners and amici participants, unless specified otherwise. These data were assembled from full-text searches of all published High Court judgments available through Lexis-Nexis for the years 1945–2001. Data from earlier years were unavailable from Lexis-Nexis. The Scaleplus database was used for the years 1998–2001, for which Lexis-Nexis provides an incomplete set of High Court judgments.

The mean number of annual High Court cases with non-party intervention by decade are as follows: 1940s: 1.8; 1950s: 4.2; 1960s: 1.3; 1970s: 6.0; 1980s: 12.2; 1990s: 13.16.

Above, ref. 5.

Included within this ‘private interveners’ label are private organisations, individuals, and some governmental organisations, such as the Human Rights and Equal Opportunity Commission. I categorise these governmental organisations as ‘private interveners’ because they do not possess the same intervention rights as Attorneys General.

US Supreme Court Justice Sandra Day O'Connor illustrated this point in Webster v Reproductive Health Services 492 US 490 at 522 (1989): ‘The willingness of courts to listen to interveners is a reflection of the value that judges attach to people. Our commitment to a right to a hearing … is derived not only from the belief that we improve the accuracy of decisions when we allow people to present their side of the story, but also from our sense that participation is necessary to preserve human dignity and self-respect’.

A total of 82 interviews were conducted between 1997 and 2001. For further information, see Pierce Jason , ‘Interviewing Australia's Senior Judiciary,’ (2002) 37(1) Australian Journal of Political Science 131–42.

Space limitations prohibit me from thoroughly presenting and assessing interview data on this point. Rather, I endeavour in this section to present a representative sample of opinion from Federal Court and state Supreme Court judges. The numbers following quotations refer to a particular informant and segment in the interview.