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Ryland, Michael --- "Beyond the Door-Keeper: Standing to Sue for Public Remedies" [1996] ALRCRefJl 11; (1996) 69 Australian Law Reform Commission Reform Journal 35


ALRC Reform 69

BEYOND THE DOOR-KEEPER
standing to sue for public remedies

Why this reform is needed
A package of reforms
Refining the ALRC's 1985 report
The scope of reform
A statutory framework for intervention by third parties
National uniform standing laws
Implementation
Endnote
Before the Law stands a door-keeper. To this door-keeper there comes a countryman and prays for admittance to the Law. But the door-keeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. 'It is possible', says the door-keeper, 'but not at the moment'.

The Law 'should be accessible to every man and at all times' thinks the country man in Franz Kafka's short story Before the Law. The door to the Law is open, but he finds his way barred by a fearsome door-keeper. He waits a lifetime, wearies even the fleas in the door-keeper's collar with his pleas, but dies without being admitted to the Law. 1

Beyond the door-keeper: Standing to sue for public remedies (ALRC 78) examines the laws of standing - the laws that determine who has the right to be heard by a court. In this report, released in May 1996, the Australian Law Reform Commission recommends removing some of the complex, unnecessary restrictions in cases that have a public element; for example challenging a government decision or ensuring compliance with public rights or duties.

In the following article ALRC Commissioner Michael Ryland explains how open standing could make the Australian legal system a little less Kafkaesque.

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.

Yet under current Australian law it is not open to any member of the public to commence litigation to enforce that accountability or compliance. A person must have 'standing' to commence proceedings of this kind.

There are various tests used to determine whether a person has sufficient standing. In many cases a personal or 'special' interest of some kind is required. In some cases specific statutory requirements apply.

In its report Beyond the door-keeper the ALRC recommends that these complex restrictions should be removed in favour of open standing.

A new, and simple standing test should be adopted. Any person should be able to commence proceedings having a public element, subject to only two limits - a person should not be able to commence these proceedings if:

Why this reform is needed

The current law on standing is counterproductive. It acts as an extra source of unnecessary legal costs and delay.

The current law is an unpredictable technical barrier. In particular the 'special interest' test can be uncertain, complicated, inconsistent and overly dependent on subjective value judgements. This can make the legal system appear unfair, inefficient and ineffective. It adds to the perception that litigation deals with irrelevant technical issues rather than with real substance.

The laws do not work as a gate guarding Australian courts against a flood of litigation or guarding Australian business against damaging and meddlesome interference. The experience of the last ten years with courts and statutes that have open standing tests has been that the feared flood of litigants has not occurred. The way in which issues of standing are handled under current law and practice indicates that they would not, in any case, be an effective barrier against any such flood.

Where there is a need for protection against damaging interference in government regulation of business and other activities, this requires better case management and better government decision making. The laws of standing do not help. Neither do they act as an effective filter for disputes that are futile, vexatious or otherwise inappropriate for litigation. Such a filter is provided by other laws and discretions available to the court.

A package of reforms

The ALRC has recommended that reform of the law of standing be seen as part of other developments in the administration of justice.

Standing is fundamental to access to justice but it is only one element. The right to commence proceedings will be of little value if the legal system is too costly, too slow or too complex to deliver an effective remedy. It will be oppressive if the legal system does not prevent or quickly restrain abuse of process or claims that are unnecessary or have no substance.

The ALRC's recommendations are therefore designed to support other developments and reforms aimed at reducing cost, delay and abuse of process.

In particular the ALRC supports the development by the courts of effective case management systems. It is these systems, rather than standing, which will provide the filters and controls necessary to restrain vexatious, oppressive or unnecessary litigation.

Open standing and case of the blue-faced owl

A new environmental group is established to protect the blue-faced owl, whose habitat it believes would be endangered by a proposed nearby theme park.

Under the 'special interest' test of the current law it is unclear whether the group would have standing. It would have to satisfy a number of criteria some of which tend to require it to have a track record as a group demonstrating its capacity to represent the public interest. As a new group it might have difficulty demonstrating that capacity.

The group would have standing under the ALRC's recommendations, unless the relevant legislation expressly provided otherwise or the group would be unreasonably interfering with a private right.

Refining the ALRC's 1985 report

The recommendations in this report substantially confirm the recommendations on the same issue in the ALRC's 1985 report Standing in public interest litigation (ALRC 27).

This report builds on the research, consultations and findings of the 1985 report. The ALRC reviewed and tested its 1985 recommendations in light of subsequent developments in law and practice and recent and proposed reforms to court rules and procedures. The report discusses these changes.

In 1985 the ALRC found that the rules of standing were confused and unduly restrictive. It recommended that they be broadened to permit any person to commence public interest litigation unless he or she is 'merely meddling'.

In this report the ALRC confirms those 1985 findings but rejects the 'merely meddling' test on the basis that it is unclear and unhelpful. This test has therefore been replaced by the two simpler and more flexible limits recommended in the new standing test.

The scope of reform

The new standing test will only apply to 'public law proceedings'. These are civil proceedings, including judicial review of administrative action, that contain a broad public element in addition to any private rights. The ALRC has defined these proceedings in terms of the remedies sought rather than the purpose or effect of the claim. This is a simpler and more certain approach to identifying the categories of proceedings to which the new standing test will apply.

They include proceedings for a remedy under the Administrative Decisions (Judicial Review) Act 1977 (Cth), prerogative relief (such as the traditional writs of mandamus and certiorari), an injunction or declaration to enforce a federal statute or other public right and a statutory remedy which is similar in function to any of the above remedies. The new standing test will not apply to criminal or family law proceedings or to tribunals. Special considerations arise in each of these areas that require separate analysis and inquiry.

A statutory framework for intervention by third parties

In some situations a person may wish to participate in proceedings which are already under way. There are two existing procedures which allow third parties to participate - by intervention or as a friend of the court (amicus curiae). In using the current procedures the courts rely on a mix of specific statutory powers which permit intervenors and a general discretion to permit appearance by a friend of the court.

This has led to a relatively cautious approach to permitting third party participation in proceedings which have a public element. There is no clear or systematic set of principles on when different levels of third party participation might be appropriate, on liability for costs or on related issues. As a result the existing procedures tend to be inflexible and under used.

To remedy this, the ALRC recommends that the current categories of 'intervenor' and 'friend of the court' should be replaced for public law proceedings by a single statutory framework giving the courts a general power to allow intervention on terms and conditions that it specifies.

The framework will guide courts, parties and potential intervenors as to when an intervenor may participate in proceedings and the role he or she should play. It will allow the court to tailor the intervention in a way that is both appropriate to the proceedings and fair to the existing parties. The framework will complement the existing statutory provisions allowing intervention by government bodies and private persons in particular circumstances.

It would be an absurd intention of the legislature that it does not require [the laws it has enacted to be enforced]. It is particularly absurd that a remedy cannot be given where there is a proven breach because the plaintiff cannot gain standing.

Submission: Qld Environmental Defenders Office

National uniform standing laws

The ALRC's recommendations are limited to litigation in areas where the Commonwealth has constitutional power. However, it is preferable for laws on standing to be uniform throughout Australia. This will avoid unnecessary confusion and cost. The reforms proposed have therefore been designed so that they can be used as a model by the States and Territories if they wish to do so.

Implementation

The ALRC's recommendations will apply to all public law proceedings. The report sets out criteria for determining which statutory remedies fall within its definition of public law proceedings. These statutory remedies will need to be identified when the recommendations are implemented.

It will also be necessary for the courts to develop new rules and procedures to administer the new standing test. The ALRC recommends that these rules and procedures should be developed before the new standing test takes effect. This will ensure that the new test is properly coordinated with the other reforms being developed by the courts when it is implemented.

Endnote


1
F Kafka 'A Country Doctor: Before the Law' Wedding Preparations in the Country and Other Stories Penguin Books Great Britain 1984, 127. The story ends with a twist. Just before the country man dies. he asks the door-keeper why 'if everyone strives to attain the Law' in all the years he has been waiting 'no one has come seeking admittance but me?' The doorkeeper answers, 'No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it'.


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