In 1985 the Australian Law Reform Commission reported on the law of standing – the set of rules that determine whether a person is entitled to commence proceedings. ALRC Report 27 includes discussions on issues of standing in civil proceedings involving both the common law and statutes and discussions on the rules governing private prosecution. ALRC Report 27 identified that the law of standing was confused and restrictive, as different tests of standing applied depending on the type of remedy the plaintiff was seeking. The report concluded that though the rules of standing should be broadened, standing should be denied to a party if their interest in the action is deliberately meddlesome or if the interest is too minimal.
In May 1995 the ALRC was asked to examine whether changes should be made to the recommendations and draft legislation contained in ALRC Report 27 in light of subsequent developments in law and practice and recent and proposed reforms to court and tribunal rules and procedures, resulting in Report ALRC 78. It provides that under the current Australian law, standing is not open to all members of the public to commence litigation to sue for public remedies, as the rules are complex and very restrictive. It addresses issues including the development and context in which the laws of standing and intervention are understood, the types of proceedings in which the reforms to standing recommended in this report should apply and sets out recommendations including a new test for standing and the exceptions to it. The report calls for broader rules of standing through the removal of restrictive rules of standing in cases that have a public element so as to ensure accountability and compliance to the law in decision making.
ALRC Report 27
- There should be a presumption that a person has standing unless the court is satisfied that the person is ‘merely meddling’. Standing should be denied to a plaintiff who has no personal stake in the matter and who clearly cannot represent the public interest adequately.
- The right to commence a private prosecution subject to consent requirements should be retained.
ALRC Report 78
- Current complex restrictions on who is entitled to commence litigation that has a public element should be removed in favour of open standing. This should be regulated by a single statutory framework giving the courts a general power to allow intervention on terms and conditions that it specifies.
- A new and simple standing test should be introduced, according to which any person should be able to commence such proceedings unless existing legislation provides otherwise; and / or the commencement of an action would unreasonably interfere with a private interest.
- The statutory framework should guide courts, parties and potential interveners as to when an intervener may participate in proceedings and the role they should play.
- ALRC Report 78 recommends that reform of the law of standing be seen as part of other developments in the administration of justice. The recommendations are designed to support other developments and reforms aimed at reducing cost, delay and abuse of process.
In January 1998, the Attorney-General advised the ALRC that the government would not be implementing the recommendations in ALRC Report 78. In rejecting the ALRC’s recommendations the Attorney-General said the government was not satisfied that the recommendations represented an improvement on the current law.