The High Court challenge to the ACT’s Marriage Equality (Same Sex) Act 2013 will be heard next week, beginning on Tuesday 3 December 2013. In advance of the hearing the High Court has published on its website the written submissions of the Commonwealth (the plaintiff) and the ACT (the defendant). Also included on the High Court’s website is a written submission prepared on behalf of the group Australian Marriage Equality Inc. Australian Marriage Equality has applied to be heard as an amicus curiae.
As we note on the Legal Terms page of Opinions on High, an amicus curiae (Latin for ‘friend of the court’):
applies to the court for leave to be heard during a proceeding. … an amicus curiae does not become party to the proceedings. Rather, the role is to offer a perspective that the court thinks is important for resolving the dispute that are unlikely to be fully or adequately raised by the immediate parties to the dispute. While amici curiae and ‘amicus briefs’ (written submissions filed by amici curiae) are fairly common in the United States, Australian courts rarely admit amici curiae into proceedings.
Justice Susan Kenny of the Federal Court of Australia has noted that the term amicus curiae ‘was traditionally intended to apply to a person who gave disinterested advice to a court on a point of law’. Former Justice William Gummow has told Opinions on High about amicus curiae briefs:
With an amicus you’re looking for a certain amount of balance…. Amicus briefs are much more detached, as it were, from the instant litigation. On the other hand, the High Court quite often gets amicus briefs from, say, the Human Rights Commission, which can be helpful. They file the application to be admitted, and with the application they file the draft of what their submissions would be. So sometimes they don’t get leave to present orally but their written material is accepted. So I think it probably works out quite well, but we don’t get hundreds: I think that would be terrible.
So what of the application by Australian Marriage Equality to become an amicus curiae? It will have difficulty demonstrating balance and disinterest. It conceded in its submission that it is a lobby group. Its mission is to achieve marriage law reform. It purports to speak for almost 1,000 people who have registered an interest to be married under the new ACT marriage laws. It is different from the Australian Human Rights Commission, a body referred to by former Justice Gummow, which is a statutory, non-partisan body. The court might be reluctant to open a path to it through amicus briefs. Australian Marriage Equality’s submission does, however, add to the legal issues presented to the court. Unlike the ACT submission (and that of the Commonwealth), Australian Marriage Equality presents arguments about the history and constitutional meaning (and scope) of ‘marriage’. Depending on the approach the members of the High Court intend to take in judgment these submissions might assist the court.