Page 2117 - Week 07 - Thursday, 16 May 2013
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In fact, every law reform body that has considered the issue has recommended that the rules be changed and expanded. The current rules create an arbitrary, unnecessary and complex limitation. One has to ask why it would not just be easier to hear the cases and determine the merits or otherwise of the decisions concerned to help develop a body of law that is actually important to the community rather than an artificially contrived barrier to justice.
The current rules also create the strange situation where somebody may have standing to commence proceedings but then lose that standing because circumstances change during the case. This matter was considered by the High Court in Allen v Transurban City Link. The existing standing rules should not be applied to public law matters. By the very nature of the decisions themselves, they are distinct because they affect everybody in some way. We are all subject to statutory decisions, either directly or indirectly, every day. The quantity and scope of executive decisions is vast. They vary in the way they are expressed, how they operate, and the requirements imposed both on decision makers and on the subjects of those decisions. They are as vast in scope as they are in number, and there should be a public right to remedy errors in those decisions.
I doubt very much that anyone disputes the value of these sentiments. In all the court decisions or public and academic debate on the issue there has never been a single positive argument that the derogation of these principles is okay. Instead, they are always cast as speculation about what negative consequences may eventuate. This fact speaks volumes. In fact, on one of the few occasions where the merits of the requirement have been argued Justice Gibbs in ACF v Commonwealth suggested great evils would arise if everyone could challenge the validity of acts of the state.
The more rational argument was put by Justice Murphy in Onus v Alcoa, where he said, quite simply, that objections to allowing citizens wide access to the courts have no merit. The only arguments advanced to support keeping the status quo and against the proposed changes in the bill are that people will engage in reckless and meddlesome interference in affairs that are not their own or, more commonly, that the floodgates will open and the rush of unmeritorious litigation will break the courts and grind the community to a halt.
As far back as 1980 in the case of Australian Conservation Foundation Inc v Commonwealth this issue was dealt with in Justice Murphy’s dissenting judgement. Since that time it has been shown repeatedly that those great evils simply do not materialise. One article by Jeremy Kirk SC and Dr Elizabeth Fisher published in the Australian Law Journal wrote of the floodgates argument:
This argument has been completely discredited by other writers and judges and need not be addressed again here.
The most commonly cited example to illustrate just how ridiculous the floodgates argument is is section 123 of the New South Wales planning legislation, which provides for open standing in perhaps the most controversial area of executive decision making. The former Chief Judge of the New South Wales Land and Environment Court, Justice Jerrold Cripps, noted:
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