: Shut the flood-gates: the litigants are coming!

Shut the flood-gates: the litigants are coming!

Elizabeth Lee

The proposed amendments in the Administrative Decisions (Judicial Review) Amendment Bill 2013 (ACT) (‘the Bill’) are an attempt to remove an arbitrary, complicated and inconsistent test for standing, in an effort to promote access to justice and keep government decision-makers accountable.

The focus on standing is not new. The Australian Law Reform Commission Report 27 (Standing in public interest, published in 1985) found that the issue of standing in administrative law matters was widely perceived to be a technical issue which impacted on issues of access to justice. The comments on the operation of standing rules, as it was then, required the court to assess whether the applicant had a ‘special interest’.

The Australian Law Reform Commission Report 78 (Beyond the Door-keeper – Standing to sue for public remedies, 1996, last updated in July 2012), recommended a new general test for standing where ‘any person may commence public law proceedings unless any relevant legislation provides otherwise or the litigation would unreasonably interfere with the ability of a person having a private interest in the matter to deal with it as he or she wishes’.

It seems the ACT Legislative Assembly was listening.

The Bill seeks to define an ‘eligible person’ by way of an all-inclusive ‘unless’ definition, rather than the current ‘must be a person aggrieved’, in order to make an application for judicial review. Under the amendments, there are only two limitations on standing and it is clear that there must be a clear, unambiguous intention of the Assembly for anyone to be denied standing.

The Explanatory Statement confirms that the Bill takes into consideration the protection of the right of everyone to have rights and obligations recognised by law pursuant to section 21(1) of the Human Rights Act 2004 (ACT) and refers to the decision of Refshauge J in Capital Property Projects (Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9 in expanding the scope of this protection to public law matters.

A potential concern for the public and the legal profession is whether this expansive definition of ‘eligible person’ will open up the flood-gates for potential vexatious litigants who may abuse the all-inclusive definition. Vexatious litigants are not new to proceedings generally. Current powers pursuant to the Court Procedures Rules 2006 (ACT) (including the court’s discretion to make adverse costs orders) may need to be reviewed to ensure no the court’s powers extend to ‘eligible persons’ pursuant to the Bill.

ELIZABETH LEE teaches law at ANU.

(2013) 38(3) AltLJ 193
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