Enabling democracy: the role of public interest litigation in sustaining and preserving the separation of powers

ABSTRACT

In a representative democracy, the judiciary—the “third pillar of the state”—performs a dual function that acknowledges the importance of the separation of powers to democratic governance: to act as a check on the exercise of state power and to protect individual rights and interests that have been violated. These core elements of the judiciary’s role similarly reflect the claims that often underlie public interest litigation (PIL), which seek to promote accountability for incursions by the executive and legislature, and secure appropriate redress. Despite these analogous objectives, this article argues that the application and endorsement of procedural mechanisms can often undermine or stifle the realisation of PIL and erode the principles of access and participation that underlie its rationale. By reference to cases where issues of standing and costs considerations have served to filter or bar public interest litigants, the article maintains that the ventilation and adjudication of issues of critical social concern (pursued via PIL) can play a vital role in enabling and reinvigorating the independence and institutional objectives of the judiciary in an aspirant democracy.

KEYWORDS:

• Representative democracy
• separation of powers
• public interest litigation

Acknowledgements

We are grateful to Josh Gibson for his referencing assistance and his observations and suggestions, and to the anonymous reviewers whose insights and recommendations were of considerable value.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Richard Bellamy defines democracy as: “ … a procedure involving regular elections for competing parties, universal suffrage based on one person one vote, and majority rule is held to provide a mechanism whereby all citizens can see they are treated as equals by virtue of having an equal say in making collective decision and rules that shape their common institutions and social interactions, albeit indirectly through their electorally authorised and accountable representatives in the legislature” (Bellamy 2013, 333).

2. See also Law and Poverty in Australia, Australian Government Commission of Inquiry into Poverty: “[G]roups in Australia which are denied access to the courts to present novel claims or test matters of principle will find their interests ignored or suppressed. More influential groups are able to shape the law for their own benefit, and the law becomes an instrument for magnifying inequality” (Australian Government 1975, 13).

3. In Australian civil litigation, the usual rule is that costs follow the event i.e. the successful party’s legal costs are paid by the unsuccessful party.

4. The section provided that an individual or organisation or association must demonstrate that “at any time in the 2 years immediately before the decision” they had “engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment” and that “the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.” https://www.legislation.gov.au/Details/C2015C00422/Html/Volume_2.

5. The Government’s bill to repeal s 487 of EPBC Act introduced in 2015 lapsed at the end of the Parliamentary session in April 2016.

6. As a non-party—typically with no right to file pleadings, lead evidence or cross-examine witnesses, or lodge an appeal—amicus curiae will generally seek leave of a court to intervene in proceedings. In so doing, they are required to demonstrate that they have a real, not merely theoretical or intellectual, stake in the outcome of the litigation.

Additional information

Notes on contributors

Andrea Durbach

Andrea Durbach is Professor of Law, UNSW Sydney and formerly Executive Director of the Public Interest Advocacy Centre (1991–2004) and Director of UNSW’s Australian Human Rights Centre (2004–2017).

Isabelle Reinecke

Isabelle Reinecke is the Executive Director and Founder of the Grata Fund, a non-profit organisation established to develop, build campaigns around and fund strategic litigation in Australia.

Louise Dargan

Louise Dargan is Head of Strategic Litigation Development at the Grata Fund.