Standing

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)

The role of standing in Public Law Litigation

The case for restricting standing in public law litigation

• 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)

The case against restricting standing in public law litigation

• 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...

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