Amicus Curiae ‘Friend of the Court’

An amicus curiae, or ‘friend of the court’, is a person or entity who appears in court in relation to a matter to assist the court without being a party to the proceeding. It is different to an intervenor as they are not a party to the proceeding and are not seeking a particular outcome; they are merely helping to facilitate the court processes. This may occur in a range of contexts when the court gives permission and all parties agree to it occurring. This article outlines some of the situations where an amicus curiae may become involved in a court proceeding.

What is an amicus curiae?

An amicus curiae is a person who assists the court on issues and in a manner that it would not otherwise be assisted. The court will permit a person to appear as an amicus curiae when it considers that doing so will significantly assist it. It commonly does so when issues of public policy are involved.

How does a person become an amicus curiae?

A person may appear in a matter on an amicus curiae basis at their own initiative or at the invitation of the court. The question of whether to allow this is entirely within the court’s discretion.

Where parties are unrepresented

Where a party is unrepresented, the court may permit a lawyer to appear and make submissions on an amicus curiae basis. This means that the lawyer can speak to the party or parties, inform the court of their circumstances and make submissions on any issues the court should be aware of, without having been retained as either party’s lawyer and without being an intervenor in the proceedings.

This usually happens in matters where a party is not likely to be disadvantaged by being unrepresented but where the party requires some assistance in order to understand their options or where there are issues that need to be pointed out to the court which it may otherwise overlook.

Where an amicus curiae role is conferred under legislation

Several pieces of Commonwealth legislation allow for a government body to appear in proceedings as an amicus curiae.

Human Rights Commissioner

An example of this is section 46PV of the Australian Human Rights Commission Act 1986. That provision allows induvial human rights commissioners to appear amicus curiae with the leave of the court. This can occur in proceedings:

• where the commissioner thinks that the orders sought may significantly affect the human rights of a person who is not a party to the proceedings;
• that are likely to have an impact on the administration of the Act or Acts;
• that involve special circumstances where it is in the public interest for the commissioner to assist the court as an amicus curiae.

Privacy Commissioner

It has been proposed that the Privacy Act be amended to allow the Office of the Australian Information Commissioner (formerly known as the Privacy Commissioner) to appear in an amicus curiae capacity in proceedings where he or she consider it appropriate to assist the court with the court’s leave.

ASIC

The Australian Security and Investments Commission (ASIC) may appear in court on an amicus curiae basis in a matter where it considers the issues to be determined are of fundamental importance to the administration of the Corporations Act or the ASIC Act.