Abstract
The interpretation given by the courts to the word ‘matter’ in sections 75 and 76 of the Commonwealth of Australia Constitution, and the restrictive approach taken by the courts to what amounts to a sufficient interest in a matter, have led to the consequence that only litigants who can demonstrate a personal interest can bring an action to challenge a breach of the Constitution. This provides insufficient protection for constitutionalism because it means that the enforcement of the Constitution is contingent on there being a self-interested applicant who will bring an action – and, conversely, creates the risk that breaches of the Constitution will be allowed to stand in cases where those who do have standing find it in their political interests to refrain from taking action. With its focus on personal interest, the current approach excludes the altruistic applicant and runs counter to the theory that all citizens have a right to ensure that the Constitution is complied with. This paper examines the way in which the actio popularis of Roman law served the ideal of the engaged citizen by enabling citizens to initiate legal action to enforce public duties, and how modern equivalents of the actio in a number of jurisdictions achieve the same purpose. The paper draws on John Rawls’ theory of justice in arguing for reform of the law on standing in Australia so as to confer open standing in constitutional cases.
Highlights
Writing on the role of orators,1 the ancient Roman historian Tacitus questioned whether there can be...any safer line to take than the practice of an art which gives you an ever-ready weapon with which to ... succour those to whom you are a stranger, to bring deliverance to those in jeopardy....It is Tacitus’ reference to ‘stranger(s)’ which has the greatest relevance to the issue addressed in this article
The interpretation given by the courts to the word ‘matter’ in sections 75 and 76 of the Commonwealth of Australia Constitution, and the restrictive approach taken by the courts to what amounts to a sufficient interest in a matter, have led to the consequence that only litigants who can demonstrate a personal interest can bring an action to challenge a breach of the Constitution
This provides insufficient protection for constitutionalism because it means that the enforcement of the Constitution is contingent on there being a self-interested applicant who will bring an action – and, creates the risk that breaches of the Constitution will be allowed to stand in cases where those who do have standing find it in their political interests to refrain from taking action
Summary
Writing on the role of orators, the ancient Roman historian Tacitus questioned whether there can be. The Roman Republic was protected, in part, by the engaged citizen who devoted his talents to the polity in a variety of ways, including by engaging in litigation even in the absence of any particular personal interest in a matter This was possible because of the availability in Roman law of a public interest action, the actio popularis, which enabled litigants to bring actions to enforce compliance with public duties. The need for such an action is as vital in modern day Australia as it was in Ancient Rome, yet Australia’s strict rules of standing prevent the engaged citizen from providing ‘succour’ to strangers. The Actio Popularis as a Model for Rules of Standing in Constitutional Matters
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