JUDICIAL REVIEW – CURTAILING JUDICIAL REVIEW

There has been a growing trend to attempt to block judicial review. Judicial Review should
not be curtailed, this was a position of the Administrative Review Council Report 42 where
several of findings were made.

The council, inter alia, took the view that public law values that underlie judicial review to be
the rule of law, the safeguarding of individual rights, accountability, and consistency and
certainty in the administration of legislation should triumph over the curtailing of judicial
review. The attempt of parliament to oust the courts jurisdiction in reviewing judicial
decisions for example through ouster clauses also received a stern warning from the HCA in
the Plaintiff s157 case. In the case the HCA stated that the jurisdiction of the court to require
officers of the Commonwealth to act within the law cannot be taken away by parliament. The
court further stated that parliament may create, and define, the duty, or the power or
jurisdiction, and determine the content of the law to be obeyed. But it can not deprive the
court of its constitutional jurisdiction to enforce the law so enacted.

Curtailing judicial review also poses a significant risk on the safeguards of individual rights.
Judicial review is said to be a mechanism whereby individuals are entitled to bring an action
in the courts to enforce a right or protect an interest by stopping unlawful conduct of the
government or one of its agencies. The grounds available in judicial review are designed to
ensure that government decisions are reached by fair procedures and are rational and lawful.
This is why the court possesses the power to rule a judicial decision invalid and send it for re-
determination rather than make an order itself. The important of safeguarding individual
rights was also highlighted in Bodruddaza v Minister for Immigration where the High Court
ruled constitutionally invalid a provision in the Migration Act which fixed time limits on
applications to the court for review.

The council also took the view that judicial review plays an essential role in maintaining the
accountability of people exercising administrative decision making powers and ensuring that
they are as much subject to the law as the people affected by the exercise of such powers.
This form of accountability focuses the attention of primary decision makers on acting
lawfully and subject them to the rule of law. The possibility of having a decision made by an
administrative decision maker being reviewed encourages a decision maker to take
responsibility for ensuring that the decision is properly made according to law.

Furthermore, these sentiments have been echoed in the United Kingdom where the courts
have warned about the dangers of curtailing judicial review. Lord Neuberger, president of the
Supreme Court in the UK has stated that judicial review is an irritant to the executive but a
fundamental control on the executive. His honour continued stating that it would be
unfortunate for legislation to cut back the opportunity for judicial review as it is a
fundamental to the rule of law that executive decisions are open to review by judges to see
that they conform to what the rule of law requires.

These principles of accountability and public confidence would be damaged as a result of

inadequate or ultra vires administrative decisions slipping through the cracks. These values
are fundamental and the strongest of reasons would be needed if judicial review were to be
reduced in a way that might allow unlawful conduct to proceed without any kind of remedy.
OPEN STANDING

The flexibility of the special interest test was confirmed in Shop Distributive and Allied
Employees Association v Minister for Industrial Affairs (SA),[35] the last High Court
decision before Bateman’s Bay to consider the special interest test. The Court declared that
the nature and the subject matter of the litigation will determine what amounts to a special
interest.[36] But little more was done by the High Court to develop the test. In Bateman’s
Bay three judges commented that the special interest test, despite its purported flexibility,
results in ‘an unsatisfactory weighting of the scales in favour of defendant public bodies’, by
requiring plaintiffs to do more than show ‘the abuse or threatened abuse of public
administration. The court concluded that the current special interest test should be construed
as enabling not a restrictive requirement.

Start
Standing is concerned with whether a plaintiff can invoke the jurisdiction of a court. The law
of standing raises problems in relation to plaintiffs in public law proceedings. In public law
the applicant seeking standing is concerned about the violations of a public right. Standing
requirements in public law proceedings restrict to persons affected by a decision, a connection
must exist between the interests of the person. The traditional floodgates argument – that
standing really operates as a filtering mechanism whereby the courts can restrict what would
otherwise be an influx of officious busybodies – has been rejected by both courts and
commentators as a realistic objection to open standing or as an adequate explanation for
standing requirements. Head (2012, p. 141) also argues that the floodgates argument has been
unproven and largely discredited.

The public interest test seems to be a major advantage of allowing an open standing regime in
Australia. In her article ‘Open standing and Enforcement’ (2011) Felicity Milner argues that
the most obvious advantage in having open standing laws arises in relation to environmental
laws as it provides an additional means by which laws are regulated and enforce, because
allowing anyone to enforce them will create the potential of more enforcement.

As the law now stands the criterion of special interest seems to involve in each case a curial
assessment of the importance of the concern which a plaintiff has with a particular subject
matter of that plaintiff’s relationship to that subject matter. The Australian law reform
Commission in its 78th report found a number of disadvantages inherent in the concept of the
locus standi requirements to judicial review.

The Commission stated that the test by requiring a plaintiff to have a special interest the test
precludes those purely disinterested but are a concerned and capable plaintiff to initiate the
public proceedings. Further it was argued that there is no clear and practical criterion for
identifying whether a plaintiff’s interest will give them standing in public law proceedings.
This is clearly evident in (bullshiticous).

Further, and importantly the commission found that the test is too complicated involving
complex arguments that add to the length and cost of the litigation and the issue is frequently
dealt with as part of the substantive proceedings rather than as a preliminary matter
(bullshiticous).

Interestingly, the commission argues that the test is inconsistent as there are cases where
plaintiffs with similar interests have been treated differently by the courts when determining
standing. In ACF v Minister for Resources (1989) a case concerning environmental
protection and enforcing the law was held to have a special interest whereas in ACF v
Commonwealth (1980) the court has held that it was not. Similarly, the plaintiff’s
participation in a statutory submission process have given them standing in some cases
including Queensland NewsAgents Federation v Trade Practices Commission whereas it
was rejected in Friends of Castle Hill v QLD Heritage Council. In a separate submission, but
one which would be a factor for the inconsistency the commission highlights that these
variances in application arises as the test involves a value judgment as to what interests will
be recognised which will often reflect the personal value judgments of the members of the
court rather than a reflection of community values and beliefs, and as such, are inconsistent
and unguided by principle.

4.12 Many of the difficulties with the 'special interest' test are a result of the courts
trying to apply laws and practices for the protection of private rights to cases having a
public element. This approach has produced a cumbersome and confusing mechanism
for determining who should be able to commence and maintain public law proceedings.
In light of these concerns, the Commission agrees with its conclusion in ALRC 27 that
the new test for standing should not be based on the 'special interest' test. 21

As the law now stands ... [the criterion of 'special interest'] seems to involve in each case
a curial assessment of the importance of the concern which a plaintiff has with
particular subject matter and the closeness of that plaintiff's relationship to that subject
matter. 9
4.10 A number of submissions argued that the 'special interest' approach to determining
standing should be retained on the basis that it allows a wide range of people to
commence public law proceedings, provides an appropriate balance between public and
private interests and, in light of the established case law, is relatively certain. 10
4.11 However, a number of concerns about the test were raised in ALRC 27 and in the
responses to DP 61.

NOTES

OPEN STANDING

Debate topic – for or against open standing? What are the main arguments and judicial
trends involved

Some of the principal arguments in favour of open standing are that it would:

1. Allow increased citizen and group participation in scrutinizing and challenging official
power.
2. help ensure that no government decision is immune from legal review
3. overcome the failure of the courts to produce a coherent approach to the special interest test
4. not preclude the use of alternative mechanisms, such as vexatious litigation rules, to
prevent applications deemed inappropriate.

Apart from the unproven and largely discredited ‘floodgates’ argument, objections have been
raised that open standing would:

1. elevate legal accountability over political modes of holding governments to account.

2. allow interest groups to use judicial review as a political tactic
3. draw the courts into politically-charged debates
4. permit other parties to contest decisions that an affected party would prefer not to challenge
for various reasons, including privacy.

In Bateman’s Bay three judges commented that the special interest test, despite its purported
flexibility, results in ‘an unsatisfactory weighting of the scales in favour of defendant public
bodies’, by requiring plaintiffs to do more than show ‘the abuse or threatened abuse of public
administration. The court concluded that the current special interest test should be construed
as enabling not a restrictive requirement.

In Truth About Motorways the court expressed the opinion that it would be constitutionally
possible for legislation to adopt an open standing rule, indicating that the constitutional
stipulation that judicial power may be exercised only over ‘matters’ would not prevent a case
being brought by a person who was not connected in any special way to the challenged
decision.

In Bodruddaza v Minister for Immigration and Multicultural Affairs the court traced
changing historical understandings of the role of judicial review. It detected a
reconceptualization in the context of the Australian constitution, suggesting that it marked a
shift from protecting individual rights and interests to policing the federal compact and
ensuring judicial restraint of commonwealth officers via s75.

Despite such liberalizing suggestions and tendencies, however, the special interest test still
prevails in the common law and most legislations.

In Australia there are no public interest standing doctrine with the court in Australian
Conservation Foudnation Incorporated v Commonwealth stating that there needs to be a
special interest at stake.