If you are confused, check with the sun… The High Court and the Plebiscite: Standing

The retiring Chief Justice of Victoria made some interesting comments regarding the role of the media in improving public understanding of the law:

Judges cannot really rely on the media for communication. It is up to us to write more simply and briefly with accompanying summaries and all published in an accessible way on the internet and through social media. This is an achievable goal which will help community understanding of what we do and why.

Given the public interest in the High Court hearing regarding the marriage equality plebiscite, I was surprised that there wasn’t more commentary when the decision was handed down.  The media was more interested in the outcome (plebiscite is going ahead) than the decision (interesting legal stuff).

Very little to do with the decision is actually about the plebiscite.  I find it endlessly fascinating that High Court decisions — many of which are extraordinarily fascinating on their facts alone — enter public consciousness in a way that is entirely disconnected from the legal matter.  I remember seeing Ronald Williams being interviewed on the ABC.  He was the guy behind the National Chaplaincy in Schools Programme challenge, and who brought a case to the High Court about the extent to which the government is able to spend money without legislative approval.  In the interview, he clearly had no idea what his case was about.  For him, it was entirely about chaplains in schools, religious freedom, freedom from religion, and how atheists were persecuted.  For the Court, it was about the scope of Executive power.  The Court was in no way interested in the same things that Williams was.

The decision in the plebiscite case includes some interesting points of broader interest to the public.  Here are some notes and thoughts about the issue of standing that arose.

For me, the question of standing was the most striking part of the case.  Here’s what the High Court decided:

Notwithstanding statements which have linked the need for standing to the need for a “matter” founding jurisdiction, the High Court has not in practice insisted on determining standing always as a threshold issue but has treated itself as having discretion in an appropriate case to proceed immediately to an examination of the merits. A notable instance of that occurring in a context not dissimilar to the present was Combet v The Commonwealth. There the Full Court, by majority, answered a question reserved for its opinion to the effect that the plaintiffs had not established a basis for any of the relief they sought, whilst stating that it was unnecessary to answer a preceding question reserved which asked whether the plaintiffs or either of them had standing to seek that relief. No argument was put that the approach taken by the majority in Combet was wrong or was unavailable to be taken in the Wilkie proceeding or the AME proceeding.

So what is standing and why should you care about this?

In public law (which is the law that arises between citizens and the State), there’s a question about the role that the judiciary has in making sure the government plays by the rules.  If a decision has been made by parliament or government, to what extent should the court interfere?

You might think that, in a democracy, parliament should have the final say on what’s what.  After all, parliamentarians are your elected representatives.  The Court, on the other hand, is not an elected organ of the State.  If anything, it’s a house of privilege, with people appointed by the Crown for life (or until they reach 70 years old in Australia).  Only people from one kind of professional background get to be judges (lawyers).  So you might reasonably think that letting the Court have the final say is a bit of a worry in a democracy.

Ah!  But don’t we have a constitution designed to limit the powers of parliament?  And in a liberal society, don’t we want to stop parliament from trampling the rights of the little guy?  What about human rights?  Maybe we do want an impartial umpire to referee the system and make sure that parliament and the government are playing by the rules set out in the Constitution.  Maybe we might want the court to go a little bit further than that and make sure parliament and government are playing by a deeper set of rules about human rights, democratic society, and Harry Potter fanfiction of various kinds.

Your first instinct to this question might be to think about refugees and minorities: don’t we need the Court to step in and keep Parliament in its place to protect the rights of the vulnerable?  But, historically, it’s been the opposite: the wealthy keep trying to find ways of dodging parliamentary regulation.

Standing lets us know who can go the Court and say: ‘Hey, I want you to step in and put parliament and government back into its place!’

The big case is Australian Conservation Fund v Commonwealth (1980).  And that case basically said that you needed to have a special interest in a case in order to bring it to the attention of the courts.  You can’t just be a well-meaning do-gooder.  If you want to change the law, stand for parliament.  Here’s Mason J (as he was then) on the issue of standing:

The court would exceed its function if it accepted the invitation issued by the appellant’s counsel to jettison the settled principle of law relating to locus standi and substitute for it a new rule recognizing a mere belief as an adequate special interest on the part of the plaintiff. There are limits to what the courts can and should do by way of altering the law. The court is not a legislature and has no general charter to reform or change the existing law. The court can and does elaborate the common law by judicial decision. This is an evolutionary and continuing process. It is a process which allows little scope for radical reform of a rule of law which, except in some aspects which are not of present importance, has long been settled, when it has not been demonstrated that the foundation on which the rule is based has fundamentally changed.

Two things flow from the decision in ACF.  First, there’s a bunch of cases which explore the question of whether or not a particular person or group has a ‘special interest’ that gives them standing.  Indigenous groups have a special interest in protecting their cultural heritage (Onus v Alcoa), unions had standing to intervene on behalf of their members (Shop Distributive and Allied Employees Association v Minister for Industrial Affairs), but the Right to Life Association did not have a special interest in clinical trials of an abortion drug (Right to Life Association v Secretary, Department of Human Services and Health).  The law is kind of blurry but, even without knowing the actual legal reasoning, the public can engage in a debate about where we intuitively think the line should be drawn.  What are our expectations and does the law adequately reflect that?

Second, a lot more weight is put on the Administrative Decisions (Judicial Review) Act 1977 to provide a statutory basis for judicial review.  Basically, you might not have a right to standing under general law, but a piece of legislation might throw you a lifeline.  And this is where community expectations can influence the law: if the Court decides that there is not a right to standing at general law, we can get parliamentarians to create a legislative ground for particular groups and individuals to get standing.  (I’m being a bit sneaky on this point, because it is also available for the Attorney-General to grant a person standing and maybe community pressure might encourage the AG to use this discretion, or maybe we could outsource this discretion to a statutory agency or something but I’m getting sidetracked by this extremely interesting tangent).

But what emerges is this idea that you need standing first.  You knock on the Court’s door and, if you’ve got standing, they open it up to decide on your case.

The paragraph I quoted from this plebiscite case suggests that this idea is misguided.

In that paragraph, the Court drew attention to the issue that in Croome v Tasmania, the Court stated ‘a justiciable controversy does not arise unless the person who seeks to challenge the validity of the law has a sufficient interest to do so’.  So no standing, nothing for the Court to hear.  But, despite this precedent, the Court says that it hasn’t ‘in practice’ insisted on a person coming before it to have standing.  It notes a strange case from 1977, Robinson v Western Australia:

The question whether a plaintiff has a sufficient interest to challenge the validity of legislation — an interest greater than that of any ordinary member of the public — may sometimes depend upon the resolution of controverted questions of law or fact.

So it might not be possible to see if a person has standing until you get to the biscuits of the case.  We can think of this like Superman seeking an injunction not to allow Lex Luthor to open a lead-lined box because he thinks Kryptonite is in it.  Why does Superman think he has standing?  Because he is specially harmed by releasing the Kryptonite.  But we won’t know he has that standing until we have a look inside the box to see if he’s got that special standing.  In this case, opening the box is statutory interpretation to see if it does give effect to the harm alleged to give Superman standing.

Justice Gibbs thought that the Court had a ‘discretion’ to decide ‘whether the court proceeds to determine the disputed questions whose only immediate relevance is to establish whether the plaintiff has standing to sue, or whether it will be satisfied to accord standing to the plaintiff on the ground that he asserts, not implausibly, that his interests are threatened by the operation of the legislation in question’.  The High Court also noted Chief Justice Gibbs’ repetition of this idea in the Onus case that I noted earlier.

But this seems to be at odds with the case of the plebiscite challenge.  In this case, there was no need to determine disputed questions in order to establish whether the plaintiffs had standing, and it wasn’t clear that the Court could merely be satisfied that the plaintiffs had standing on the grounds they asserted.  We didn’t need to open the box to see if they had a special interest.  Wilkie was saying he had a special interest because he was a parliamentarian.  No amount of statutory interpretation is going to demonstrate that interest.

This brings us to Combet.  The High Court says that there’s nothing mystical or weird about skipping standing in order to tackle the meaty bits because that’s what they did in a 2005 case called Combet v The Commonwealth.  Greg Combet was, before he was a parliamentarian, the Secretary of the Australian Council of Trade Unions.  The Howard Government wanted to advertise its new WorkChoices legislation, and it was going to use money appropriated for departmental expenditure to do this.  Combet thought that this was not authorised by the appropriation legislation and so ran to the High Court for some judicial relief.  The Court cut straight to the chase: ‘The plaintiffs have not established a basis for any of the relief sought in the amended statement of claim or the alternative relief foreshadowed at the hearing of the special case, namely, declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.’  They did not pass standing, they did not collect $200, they went straight to: ‘There’s no basis for the relief sought.’

But… why?

Chief Justice Gleeson spirited the problem away without too much discussion: ‘It is unnecessary to deal with the questions of the standing of the plaintiffs to bring these proceedings or the form of relief that might have been available had the plaintiffs made good their primary contention. Those questions involve issues of importance and difficulty, but on the view I have taken on the principal question of construction they do not arise.’

This seems to be a bit along the lines of the Superman analogy.  We opened the box and had a squiz, but there’s nothing to see and so there’s no standing.

Justices Gummow, Hayne, Callinan, and Heydon pull a similar trick: ‘Because the present matter can be decided by dealing with the proper construction of the relevant statutory provisions, it is not necessary to consider whether the plaintiffs have standing to make the claims they do. Nor, given the conclusion that is reached about the construction of the Act, is it necessary to decide what forms of relief could be granted if the plaintiffs’ central contention had been made good.’

It might be tempting to think of this as another lifeline.  No standing in general law or legislation?  Don’t worry: the Court has the discretion to throw you a bone and hear your case.  But in both Wilkie and Combet, the person bringing the case was losing the argument.  ‘Forget standing for a moment, your case is cooked.’  In order to succeed, you need both standing and a good legal argument.  In order to lose, the Government only needs to take out one of those and the Court doesn’t care which.

For my money, I’m worried about this approach.  I like Courts to be restrained to only hearing matters and there needs to be standing in order for there to be a matter.  Doing it the opposite seems a little bit too much like opening the door to advisory opinions: regardless of whether or not there is a matter before us, here is the decision on the substantive law.

But that’s going to come at a cost.  My approach is going to mean that there could conceivably be times when Government and Parliament can ‘get away’ with doing all kinds of shady crap because nobody (save the Attorney-General or the States) has standing to ask the Court to step in.  At least when there’s a discretion by the Court to ignore the hurdle to look at the meat, we can build up the case law about how areas of public law are supposed to work.  In this case, we now know a little bit more about appropriations and what ‘statistics’ means in Australian public law.  We wouldn’t have known those things if all the applicants had been knocked out at the standing stage.

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Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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