Against Public Interest Standing in Administrative Law:

1
Against Public Interest Standing in
Administrative Law

• exploring a non-individualist constitutional
  argument
• Hanna Wilberg
• University of Auckland
• h.wilberg_at_auckland.ac.nz

2
What this is is not aboutQ is public
interest standing compatible with proper
constitutional role of courts?

• public law - not company or charities law torts
• administrative law - not constitutional
• public interest standing (eg Curtis) - not
  associational, surrogate (eg Ruddock v Vadarlis)
• constitutional issue - not more pragmatic issues,
  such as impact on 3rd parties
• general constitutional principle - not specific
  provisions of Australian Constitution
• exploring positions - not answering the question

3
Against Public Interest Standing in
Administrative Law

• exploring a non-individualist constitutional
  argument

4
Is public interest standing compatible with
courts constitutional role?

• Exploring available positions
• I. Mainstream positions for against
• II. Alternative position against
• III. Alternative position favouring limited
  public interest standing

5
Is public interest standing compatible with
courts constitutional role?

• I. Mainstream positions
• Yes courts must uphold rule of law (eg
  Federation of Self-employed)
• gt law understood as autonomous, distinct from
  politics (eg WDM)
• No separation of powers limits courts to
  protecting individuals (eg Scalia J)
• gt classical liberalism individualist

6
Is public interest standing compatible with
courts constitutional role?

• II. Alternative position against political
  constitutionalism
• in general (Griffith, Tomkins)
• politics accommodates collective conflicts
• law is a creature of politics adjudication is
  politics carried on by other means
• responsible govt as centrepiece of constitution
• gt collectivist green light
• can be applied to oppose public interest standing
• gt individual restriction only by derivation

7
Is public interest standing compatible with
courts constitutional role?

• III. Alternative position favouring limited
  public interest standing pluralism
• represent regulatory beneficiaries (eg Scenic
  Hudson)
• counter-balance pressure of potential challenges
  from individual objects (Stewart)
• gt does this fit in with political
  constitutionalist position?

8
Is public interest standing compatible with
courts constitutional role?

• Conclusion
• A negative answer could be based on the
  non-individualist position of political
  constitutionalism.
• This may be compatible with an exception in
  favour of beneficiary standing where there are
  individual objects.