Page 3471 - Week 11 - Thursday, 19 September 2013
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
MR RATTENBURY (Molonglo) (12.07), in reply: The framework for the judicial review of government decisions is undoubtedly complex. However, the principles that sit behind it are, in fact, very simple. The simple question members need to ask themselves is: do they believe a decision of the executive should potentially be immune from judicial review? Similarly, members could also ask themselves: as those who are responsible for making the laws, are we comfortable with the situation where the executive might not follow the laws and for members of the community not to be able to do anything about it?
Standing has long been used to prevent concerned citizens from challenging the excesses of government. Back in 1875 in the case of Palmer v the Board of Land and Works, which involved a proposed sale by the Victorian government of part of Albert Park in Melbourne, a local landowner acting on behalf of a group of residents instituted proceedings in the Supreme Court in an attempt to prevent the government from selling part of the park. Instead of resolving the important issue of land ownership and the doctrine of the public trust, the applicant was denied standing to argue the case.
The laws of standing were developed from the common law test for the prerogative writs and the remedies of declaration and injunction, which, in turn, were based on the right to proceed in private law actions. This bill recognises that private law limitations simply do not work in the public law context. The application of the private law limitations has meant that legitimate applicants have been prevented from having their concerns determined by a court simply because an arbitrary rule has been used to prevent them. The fact that the interest test has evolved as it has, particularly over the last 25 years or so, indicates that it is out of step with contemporary expectations and that the legislature should clarify when it is and is not reasonable for a person who believes that an executive decision-maker has acted unlawfully.
This goes exactly to the matter of ACF v The Commonwealth. Firstly, it was a 1980 case so it is now 33 years since it took place, and I think that jurisprudence and the thinking around legal matters has progressed somewhat in that time. But, secondly, and as Mr Hanson accurately quoted, Justice Stephen indicated this should be a matter for the legislature to deal with, which is exactly what this bill seeks to do.
There is no shortage of judges of superior courts across the common law world, including justices of the High Court, who have criticised the current requirements for standing. Justice Stephen in Onus v Alcoa said of the current test that questions of proximity and of weight reflecting curial value judgments are determinative. He also said that deliberate legislative action rather than judicial innovation would be desirable to reform the law on standing, again reinforcing the earlier point.
There are many academic articles and studies into the law of standing. Almost all strongly support increased access to the court and removing the current limitation on standing. As well as this, there are a number of Law Reform Commission reports and most recently a report by the commonwealth Administrative Review Council. All of these reports also recommend reforms.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video