Page 2119 - Week 07 - Thursday, 16 May 2013
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to look at examples of anti wind farm groups, or climate change denial organisations funded by ExxonMobil to see how easily the community becomes aware of what is really going on.
Perhaps the better question is: why should we keep the current limitations? The only justification from those opposed to the changes is that it keeps out busybodies. Of course, the answer to this is that the courts already have a range of discretionary powers to deal with vexatious claims and that adequate mechanisms for preventing unmeritorious claims already exist without the need to limit standing.
Open standing to challenge government decisions is a logical part of open government, justified by a basic consideration of what our democracy should be and the nature of the powers that we should wish to give the government. Who can and cannot bring an action for review currently can only be characterised as arbitrary. Despite judges’ best attempts to articulate the law there remains a significant grey zone, and reasonable minds can disagree on whether or not a particular applicant would have standing. Given the nature and breadth of contemporary government decision making, to have a clear line is practically impossible. There is no real purpose and no justification for the status quo.
The assertion that changing the rules for standing will encourage unmeritorious litigation denies the experience of other jurisdictions and the well-accepted reality that the litigation process is unattractive at best. As Justice Murray Wilcox said on the reality of the motivations of people that commence public interest legal proceedings:
Litigation—in the public interest and for no personal advantage, especially against a wealthy opponent and under a cost regime requiring the losing party to pay costs incurred by the victor—has some similarity to marriage as described in the Book of Common Prayers: it is not by any to be enterprised nor taken in hand, inadvisedly, lightly or wantonly.
Certainly at some point or another there will be a corporate entity that wishes to use the provision for commercial gain. This may be legitimate and it may not be. There are mechanisms for dealing with such a situation if it is completely unmeritorious, and to deny the whole community the possibility of correcting public wrongs because of the relatively minor risk that at some point in time a corporation may do the wrong thing would simply be bad public policy.
This is an important change. The ACT is a small jurisdiction and the number of matters before the Supreme Court is relatively small. I do not expect this will cause any significant increase in the number of cases. However, even if just one case is decided differently and one person is allowed to bring an action that they would not previously have been able to, it will be a good outcome—one that ensures that government action is lawful and that the community can have confidence that we have in place a robust system to address any deficiency in administrative process that may arise from time to time.
I commend the bill to the Assembly.
Debate (on motion by Mr Corbell) adjourned to the next sitting.
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