The Academy and the Courts

Abstract

In a recent article, Chief Justice of the High Court of Australia Susan Kiefel’s vision explores the symbiotic relationships between the courts and the academy, suggesting that academic writing can be a valuable resource for the judiciary. This suggestion raises the question, propounded in this article, that there is value for both the judiciary and academy to identify what judges cite and where academies should aim to publish. The literature review reveals two different approaches to academic citations, namely, that the High Court of Australia regularly cites the academy, but state supreme courts rarely cite academic material. This article aims to fill a gap in the existing literature to examine citation practices in two Australian territories: the Northern Territory and the Australian Capital Territory. Using the law-as-data and citation counting method, the article examines data published from 2010 to 2019 by the supreme courts of the two territories. It compares this data to the existing research of the state supreme courts and finds that the citation patterns of the supreme courts in the territories are consistent with those in the existing literature: in brief, the judiciary cite few publications, predominantly books. The data shows that there is a trend of decline in citing academic work by the judiciary in both territories. This trend is alarmingly problematic for the academy writing for the judiciary, and the potential of a flow-on effect of an ongoing and detrimental diminution of the symbiotic relationship envisioned by Kiefel CJ.