Page 2118 - Week 07 - Thursday, 16 May 2013
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It was said when the legislation was passed in 1980 that the presence of section 123 would lead to a rash of harassing and vexatious litigation. That has not happened and, with the greatest respect to people who think otherwise, I think that that argument has been wholly discredited.
The Hon Justice Peter McClellan AM, Chief Judge at Common Law of the Supreme Court of New South Wales, as he then was, in a speech to the Commonwealth Law Conference in 2005 on access to justice, dismissed the floodgates argument and stated:
… the opportunity for a plaintiff to bring proceedings without having to establish standing has meant that it has been possible to use the plaintiff’s, sometimes limited, resources to debate matters relating to the operation of the relevant planning laws rather than debating issues of standing. Many of these cases have significantly enhanced the quality of environmental decision-making within New South Wales.
Here in the ACT we have stared down the argument and been proven right in relation to the Human Rights Act. At the time, the floodgates argument was run and rightly rejected. Since then the Human Rights Act has proven to be an increasingly valuable part of our jurisprudence rather than a burden on the courts or decision makers.
Perhaps the second most common argument against any change is that the court should have the benefit of argument from those people most closely affected by a decision. Firstly, nothing in the bill prevents this from occurring. It is important to also consider the view of the Administrative Review Council who considered this issue last year and came to this view:
People who are directly affected by a decision are often not in a position to challenge its legality. They may not have the resources, the time or the expertise to mount an action for judicial review. Such a situation does not mean that the illegality may not have detrimental effects on them or others, nor does it mean that it is in the interests of society that the decision be allowed to stand.
Additionally some judges have recognised that public interest litigants, especially groups, are perhaps more likely to present well-resourced and prepared cases. The bill recognises the very important role that organisations play in public interest litigation and provides that both incorporated and unincorporated associations and groups can make applications for review.
The argument is sometimes put that this creates a shield against costs or to give litigation that is essentially commercial in nature the appearance that it is community based. In relation to the first point, the court procedures rules deal with this issue. They provide for the court to require that a security be paid to the court before a matter is heard. The rules expressly cover this issue, and the ACT courts have demonstrated that they are willing to utilise the provisions.
In relation to the second issue of front groups, this has not been the experience elsewhere, and the reality is that people know when this is happening. You only have
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