Page 591 - Week 02 - Thursday, 14 February 2013
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At almost every sitting of the Assembly more and more decision-making powers are delegated to ministers and public officials. We do so in all manner of circumstances, on all manner of different conditions. When we give that power to ministers or public officials we should expect them to be made following proper process and according to law and there should be mechanisms to ensure that that is always the case.
This bill is about ensuring that all those many and varied delegated powers are always exercised according to law as prescribed by the Assembly. If we want ministers and public officials to always be accountable for their decisions then we should make those decisions open to judicial review, irrespective of who happens to be the one who wants that review.
In Australia there has been a very gradual, perhaps at times stagnating, move to expand those who can access the courts to ensure that the public interest is protected and administrative decisions are made according to law. In 1986 former Chief Justice Brennan said: “The movement is all one way, that is, towards relaxing earlier restrictions on standing to sue.” This bill will progress that movement apace and bring about real reform, significantly increasing the accountability of decision makers.
The rules of standing have been the subject of considerable debate for many years, both in the courts, as part of litigation, and by law reform bodies and academics. These reviews almost universally recommend in favour of reform and expanding the scope of applicants that can seek review of government decisions.
The test for standing in public law matters should be broader than that where private interests are involved. The draft bill I present today is modelled on the recommendations of the Australian Law Reform Commission in their report No 78 entitled Beyond the doorkeeper: standing to sue for public remedies and will give effect to these very important principles.
The overview of the ALRC report states:
The public has an interest in ensuring that government decision-makers are accountable and that their decisions are made in accordance with the law. The public also has an interest in ensuring compliance with legislation that creates public rights and duties. These are interests which must be capable of protection, when necessary, through litigation.
In the case of Onus v Alcoa of Australia Ltd, Justice Stephen argued that deliberate legislative action rather than judicial innovation would be desirable to reform the law of standing. This draft bill represents the first legislative attempt to properly reform the law of standing for judicial review. There have been changes in particular contexts—the most notable is the New South Wales planning laws, which allow any person to seek review of a planning decision—but none have comprehensively tackled the issue.
Justice Graham, in Hussein and Secretary of the Department of Immigration and Multicultural and Indigenous Affairs, said that standing rules:
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