Dr Timothy Liau’s book, Standing in Private Law (OUP 2023), was recently cited by the Australia’s apex court, the High Court of Australia, in AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26, delivered 6 September 2023.
The case concerned a citizen of Iran who, having arrived in Australia by boat in July 2013, was kept in immigration detention, his protection visa finally having been refused in February 2021. Following that he commenced proceedings in the Federal Court of Australia against the Minister for Home Affairs and the Commonwealth of Australia seeking an order of habeas corpus or a writ in the nature of habeas corpus, a declaration that the appellant was falsely imprisoned, and other relief.
The HCA had to decide whether the Full Court of the Federal Court of Australia had the jurisdiction to determine two appeals brought before it, and whether its orders had to be set aside. The majority of the HCA (Gleeson J dissenting) decided that the Full Court had no jurisdiction because there was no ‘matter’ before the Full Court.
In doing so the Court discussed the requirement of a ‘matter’, and the need for a ‘justiciable controversy’, within Chapter III of the Australian Constitution. In his concurring judgment the Hon Justice Edelman analysed this requirement in terms of three elements, the third involving a need for standing. ‘The failure to recognise all aspects of a justiciable controversy can lead only to confusion and the dilution of its requirements’ ([68]).
Elaborating on this need, Edelman J cited Dr Liau’s book, which argues that standing and rights are importantly distinct private law concepts and that the rational and coherent development of legal doctrine demands that we acknowledge this. At [75]-[76], Edelman J wrote:
“The existence of a real dispute is different from the requirement of standing. A real dispute about rights exists independently of a legal proceeding. Standing does not. Hence, a "tendency" that has rightly been criticised is for "standing to be unhelpfully lumped together, even misidentified, with these rights" [citing Dr Liau’s book in support of this proposition].”
He continued:
“Standing is instead the separate requirement that the applicant for relief is the correct person (with them or their representatives "standing" before the court) to agitate the dispute. In particular, the party asserting the right, duty or liability must have standing to enforce that right, duty or liability. In this sense, it is often said that standing is subsumed within the requirement of a matter.
Although there are limited exceptions, in private law the element of standing usually requires that the party asserting a right, duty or liability either holds or is subject to the right, duty or liability. In public law the element of standing is different. It usually requires that the right, duty or liability be asserted by a person with a sufficiently special interest in doing so. The Attorney-General could, however, authorise a relator proceeding so that an individual without any special interest could bring an action concerning the infringement of a public right. Both the United States and Australia have also recognised that legislation can extend such relator proceedings so that an individual can bring the action as a "private Attorney-General".” (footnotes omitted)
This case is the latest in a developing line of litigation on a series of standing-related issues in Australia: see Unions NSW v New South Wales [2023] HCA 4, and Hobart International Airport v Clarence City Council [2022] HCA 5.
The judgment can be found here. An announcement about the book can be found here.