Public Interest Group Participation in Decisionmaking: The Broader Meaning of the Law Reform Commission Proposals

Published date01 June 1979
Date01 June 1979
DOI10.1177/0067205X7901000202
AuthorAlan S. Miller
Subject MatterArticle
PUBLIC INTEREST GROUP PARTICIPATION
IN
DECISIONMAKING:
THE
BROADER MEANING
OF
THE
LAW REFORM COMMISSION PROPOSALS
By
ALAN
S.
MILLER
*
In this article the author examines the expanding role which
public interest groups can play in decision
making
in our society.
He discusses the proposals
of
the
Law
Refornl Commission to ease
the present rigid locus standi requirements
an,d
points out that the
main issue
is
not
access to the courts but to government itself, and
that various matters which he then investigates control public
access. He concludes
by
suggesting several ways in which the
present situation
may
be modified and improved.
It
would be utterly
unreasonable
to afford
the
most sophisticated
kind
of
legal
protection-judicial
protection-only
to the
more
traditional needs
and
interests, such as private
property
rights,
and
to deny it to the new societal needs
that
are
quickly becoming vital
to
the
very survival
of
human
civilization.1
The
private organisation asserting claims
on
behalf
of
the
public
is
an
increasingly
common
development in
modern
industrialised societies.2
In
such fields as
environmental
and
consumer
protection,
minority
rights,
and
civil liberties, these new groups
are
rapidly assuming avital
role as public
advocates-spokesmen
for
interests shared, if
not
to
the
same extent, by most
or
all
of
the
population.
The
legitimacy
and
importance
of
such
groups in
Australia
was
recently given considerable
support
in adiscussion
paper
issued by
the
Law
Reform
Commission.
The
focus
of
the
paper
is
on
access to the
courts
for
public interest suits,
and
the
conclusion advocates sweeping
changes in
current
standards. Stopping just
short
of
the
complete
abandonment
of
any
tests
concerning
the
plaintiff's status,
the
authors
would allow
courts
to reject actions
on
grounds
of
lack
of
standing only
'~if
satisfied
that
the
plaintiff has no real
concern
with
the
issues".3
This
recommendation
will
no
doubt
be controversial. Overseas
experience, particularly
American,
was akey source
of
evidence
on
behalf
of
the
Commission's conclusions. Previous writers have questioned
the efficacy
and
relevance
of
American
precedents.
Sandford
Clark_
argues
that:
*A.B., M.P., Juris. D., Fulbright Scholar 1977.
1Cappelletti, "Governmental and Private Advocates for the Public Interest in
Civil Litigation: AComparative Study" (1975)
73
Michigan Law Review 793,
880-881.
2Id. 860-880.
3Law Reform Commission of Australia Discussion Paper No. 4Access to the
Courts-I,
Standing: Public Interest Suits (1977) 20 (hereinafter cited as "Access
to the
Courts").
143
144 Federal
Law
Review
[VOLUME
10
Basic decisions were taken by Australian society in the nineteenth
century about the machinery for controlling allocation of
our
natural resources. These decisions are now, Ithink, irreversible.
The roles played by the different branches of government under
our
system are
so
fundamentally different from the situation which
prevails in the United States as to render much American theorizing
about the role of institutions practically irrelevant.4
Whilst this issue will no doubt be debated in the coming months, the
most interesting statements in the Discussion
Paper
are more philoso-
phical.
The
importance of access to the courts
is
explained in almost
revolutionary terms. Citing
an
international project
on
"Access to
Justice", the C'ommission characterises restrictions
on
the role of the
judicial process which require proprietary interests as vestiges of the
19th century.
In
that period "the state remained passive with respect
to the ability, in practice, of aparty to use his legal right.
The
law was
mainly concerned with property
and
majestically assumed
that
all had
property".5
In
akey passage summarising the Commission's approach,
the paper sets forth what amounts to astatement of legal ethics:
The courts exist to serve people in the resolution
of
legal disputes
and in reducing social tension.
If
they are to remain relevant to
society and alternative methods of dispute resolution, including
physical violence, are to be avoided they must be, and be seen to
be, capable of discharging
that
task. As ageneral proposition
people ought to be able to submit legal disputes to the courts for
resolution and to invoke the aid of the courts in enforcing the
law.6
The implications of this philosophy extend far beyond the confines
of the courtroom. The "resolution of legal disputes"
and
the reduction
of "social tension"
is
surely as
much
afunction
of
government in
general as it
is
of the courts. Even if the discussion
is
restricted to
dispute resolution, such functions are performed by regulatory bodies,
local planning authorities, ombudsmen, and many
other
public entities.
Indeed, no public interest issue originates in the courts. As the Commis-
sion notes in the introduction, since the 19th century disputes have
increasingly arisen between citizens
and
the government
rather
than
among owners
of
private property.
Moreover, there
is
good reason to insist
that
the courts operate
primarily as the arbiters of last resort.7Judicial procedures are too
time-consuming and expensive to be used routinely as asource of
leview
of
administrative action. The courts function best as a
check
on
arbitrary administrative action,
not
as areplacement.
,4
Clark, "Conservation and Government: Towards
an
Understanding of Roles"
(1974) 5Search
241
(hereinafter cited as "Understanding Roles").
5Access to the Courts,
supra
n.
3,
3-4.
6Id.6.
7However, judicial review of the merits of agency action
is
appropriate in some
circumstances. See text accompanying
nne
43-48.

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