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@auckland.ac.nz

2. What this is & is not about:Q: 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) => law understood as autonomous, distinct from politics (eg WDM) • No: separation of powers limits courts to protecting individuals (eg Scalia J) => 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 => collectivist & “green light” • can be applied to oppose public interest standing => 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) => 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”.