The Academy and the Courts: Citation Practices

Chief Justice Susan Kiefel’s vision, shared in a 2020 article, involves a mutually beneficial relationship where judges and the academy work together towards developing law in an ever-changing and complex landscape. The academy writes material that is useful for the courts, and in turn, this material is cited, which is beneficial to the academy. This vision of an interdependent, mutually enriching, relationship between the courts and the academy has inspired this article to examine what academic publications judges cite. The literature review reveals that, whereas the High Court of Australia regularly cites academic material, state Supreme Courts rarely do. This article aims to fill a gap in the existing literature on Supreme Courts by examining 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 2010–20 by the Supreme Courts of the two territories. It compares this data to the existing research of the state Supreme Courts. It finds that the citation patterns of the Supreme Courts in the territories are consistent with those in the existing literature: in brief, the judiciary cites few academic publications. This trend is alarmingly problematic for the academy writing for the judiciary, and its flow-on effects can potentially diminish the symbiotic relationship envisioned by Chief Justice Kiefel.