#7226 - Standing - Administrative Law

In Allan v Transurban City Link Ltd [2001] HCA – the court noted that “Standing” (coming from the latin ‘locus standi’) is a metaphor used to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies

• Generally in public law matters, standing is apparent and won’t require special consideration (e.g. revoking a license, denying planning etc. has a direct individual effect) but issues arise in certain circumstances

  • Public interest/community organization challenging government decisions on public policy which concern them

  • Trade union/association challenging a government decision adversely affecting their members

  • A commercial entity challenging a government decision favourable to their rival

  • A ‘concerned citizen’ challenging a decision not affecting his private rights but is otherwise of concern

• The law of standing has variations which reflect how different proceedings can be commenced (e.g. standing for a prerogative writ is not the same as an application to a particular tribunal)

• Long standing principle dictates that the law should limit the class of people with standing to initiate legal proceedings to challenge the validity of government decisions

  • In earlier cases the distinction was between private and public right; hence one couldn’t sue for an infringement of public rights unless a private right was also infringed (Boyce v Paddington Borough Council)

  • Recent cases have a new test – the litigant must have a special interest in the subject matter of the litigation (ACF) or “must be aggrieved to the extent that their interests are adversely effected” (ADJR Act ss 3,5)

Arguments for restricting standing

• The role of courts is adjudicating disputes between parties as to their respective legal rights. A more liberal doctrine will result in courts being called more frequently to resolve public policy or public rights disputes.

  • Lord Wilbeforce in Gouriet describes breaking the distinction between public rights that cannot be sought and private rights which can as a “destruction of one of [the law’s] pillars” since courts aren’t equipped to make such decisions but rather to find legal rights and administer remedies on well-known principle

• Court rulings conclusive decide issues; so to ensure that legal issues are properly framed, parties should have an interest in the issue. The ALRC describes this need as a motivation to ensure issues will be presented with “vigour and skill” without which the public interest will suffer because a question on a public right is resolved on the basis of inadequate arguments

• Government agencies make countless decisions – the risk of all being set aside at the suit of another has been variously described. Other forums can be used to debate government functioning – relaxes in the law of standing will fuel the growth of litigation, especially those bent on frustrating efficiency/certainty of decision making.

  • Lord Denning MR describes the distinction between parties busybodies who “meddle officiously in other people’s affairs” subjectively convinced that a cause of grievance exist where it doesn’t , and a man who is genuinely concerned that can objectively point to something wrong the latter should be heard

• There may be a constitutional reason for limiting federal judicial review – courts exercising federal jurisdiction can only deal with a ‘matter’ or justiciable controversy (which limits not precludes the doctrine of standing)

• The doctrine of standing is well established in public law; radical change should be made by the legislature and not by the courts (Gibbs J in ACF)

• Proposals have been variously made:

  • Open standing (Fisher v Kirk) or

  • A modified doctrine of standing (ALRC) which would involve a right to standing subject to an exception where legislation indicates a contrary intention or if the public interest is adversely affected due to unreasonable interference with the ability of a person having a private interest in the matter to deal with it differently or not at all

  • Existing test should be applies less restrictively – e.g. a lower standard for the ‘special interest test’ (perhaps this is already so – North Coast, Ogle v Strickland)

Arguments for a less restrictive standing doctrine

• The law of standing shouldn’t inhibit the courts ability to restrain unlawful government action and thus safeguard the law

  • “the public has an interest in ensuring that government decision-makers are accoutntable and that their actions are made in accordance with the law” (ALRC, Beyond the door-keeper)

• The law of standing hampers the role that public interest litigation can play in enforcing legal compliance and government accountability

  • The ALRC describes it as a mechanism for “clarifying legal issues or enforcing laws” to the general community’s benefit

  • They also point to ‘bureaucratic and financial constraints on the A-G which inhibit government plaintiffs from adequately representing the public interest in all matters – hence the requirement for private plaintiffs to do so

• The law of standing rests upon elastic phrases (special interest, person aggrieved) – Gerard Brennan draws attention to the difficulty of discerning the distinction between those who are relevantly effected by statutory decisions and aren’t:

  • He says the “absence of precision may give rise to new problems” pointing to the indeterminacy of the “busybody/special interest” distinction and whether or not intellectual/emotional interests can amount to relevant interests

• The law of standing doesn’t accomplish what it sets out to achieve – inappropriate legislation can be controlled by the courts power to manage litigation

  • The ALRC describe it as “an extra source of unnecessary legal costs and delay”, pointing to its ineffectiveness in filtering out inappropriate litigation, and also as an “unpredicted technical barrier” due to the indeterminacy of the relevant test which can make the legal system appear “unfair, inefficient and ineffective”

• Justice Hayne in McBain describes how standing is related to the idea of ‘matter’ in Ch III and the court’s jurisdictional confinements under s75(v)

  • The three are related and shouldn’t be examined in isolation; they are all rooted in fundamental concepts of judicial power

  • The very nature of ‘matter’ implies that the Court should be able to determine a right/duty/liability – and where an attempt is made by someone with only a theoretical interest won’t give rise to a ‘matter’ (*hence no standing)

• The law of standing is dominated by the High Court case of ACF – there are three important features to this case:

  1. The principles expounded have been consistently applied, even in cases giving the law of standing a more liberal view. The two are ‘special interests’ which confer standing and that ‘emotional/intellectual concerns’ don’t.

  2. Proceedings were instituted by a public interest organization – generally these are done for public policy issues rather than safeguarding rights or interests. Usually the case of the interests of the organization are also different to that of its members

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