This symposium provides us with an opportunity to re-assess how procedural rule impact on people who seek ‘access to constitutional justice’. Keyzer has offered three distinct, although somewhat related, alternative arguments for a broader approach to standing. The first is that access to the courts for judicial determination of the constitutional validity of legislation is justified by the constitutionally implied freedom of communication on matters of political or governmental concern. The second is that the High Court has a duty to ensure constitutional limits are not infringed, this duty arising from the rule of law doctrine, and this gives rise to an ‘entitlement’ to know the constitutional validity of any law. Finally, Keyzer identifies popular sovereignty as a significant legitimising factor within the Australian constitutional context, and argues that the better view of the relationship between the people and the system of constitutional government reflected in that doctrine justifies and requires a more inclusive approach to standing.
The issue that I address today is whether these are viable alternatives to the present paradigm. In doing so I will focus on the first of Patrick Keyzer’s hypotheses, and only touch on the second and third. However before doing this it is important to identify the problems with the contemporary law of standing that are carefully and persuasively explained by Keyzer in Open Constitutional Courts.