On 31 October 2019, Kiefel CJ gave a speech concerning academics and the court. As an academic who has recently conducted a small study of who was cited by the High Court between 2015 and 2017, I welcome Kiefel CJ’s speech warmly. In her introduction she said that academic writing which is directed to judges, to the profession and to the public is a ‘valuable resource for judges’, and then continued, ‘[a]cademic lawyers are well placed to provide commentary both in terms of their focus on particular topics and the time available to them. Judges are under special constraints and therefore appreciate academic literature which is on point and useful.’

I was also very heartened by the Chief Justice’s comments on judges who use academic material without acknowledging it. She said, ‘I would like to think that this is a practice of the past and that these days acknowledgement is given where it is due’. I hope that her recommendation is taken under advisement. I also agree with Her Honour that it is more complex when a work has been generally (but not specifically) helpful, or confirmed an opposite view. Moreover, it is important to note that the role of the courts is not to recognise academic work, and that in fact, there is no need to cite academic work at all for a judgment to be authoritative. As the Chief Justice says, the main role of a judgment is to give reasons for the resolution of a dispute between parties: no less, no more. If academic work helps with the resolution of that dispute, then it should be acknowledged, but if it does not, there is no need to divert into it. And it is certainly not the role of judges to elucidate legal theories unless they are relevant to the case at hand. Continue reading →