ADMINISTRATIVE LAW

NOTES

Standing

Introduction

During construction in the center of London in the late-1980s, a contractor digging a foundation struck the remains of the famous Rose Theatre.

A group of citizens, scholars, and actors concerned with historic preservation, the Rose Theatre Trust, sprang up to defend this important archaeological find from destruction. The court ruled, however, that this group lacked the requisite locus standi or standing because of what the court viewed as a lack of "sufficient interest."

In order to have standing, individuals must show a greater "interest" than that of the rest of the public, according to the decision. The fact that the members of the Rose Theatre Trust were distinguished scholars and actors who had devoted their lives and careers to Shakespearean work was not enough to show that greater "interest."

R. v. Sec. of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB 504, has been aptly termed the "low point of the standing issue" in recent English jurisprudence, however.

More recently, a series of decisions has started to expand the right of legal standing again, at least in environmental cases.

The environmental group Greenpeace was granted standing in R. v. Inspectorate of Pollution, ex parte Greenpeace, Ltd. (No. 2) [1994] 4 All E R 329, to challenge a proposed license for a nuclear power plant. The High Court said that Greenpeace was a "responsible and respected body with a genuine concern for the environment" (recognizing, in a sense, standing as being conferred on the basis of ideological commitment, plus some efforts to follow up on such commitment) and that granting them standing to pursue the litigation would save the court's time. They would efficiently and effectively represent the interests of 2,500 of its supporters living in the area of the proposed nuclear plant.

This may be seen as a kind of "representational standing," or perhaps "third party standing," in lieu of others who truly would have had traditional standing. Justice Otton said:

“I reject the argument that Greenpeace is a `mere' or `meddlesome busybody.' . . . I regard the applicants as eminently respectable and responsible and their genuine interest in the issues raised is sufficient for them to be granted locus standi.”

The English decision in 1997, of Ex parte Richard Dixon CO/3410/96 (High Court of Justice, QB Div., Crown Office) (20 April 1997), continued the liberalization, and continued the exposition of the viewpoints that public law is about duties, not rights. Justice Sedley wrote:

“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs -- that is to say, misuses of public power; and the courts have always been alive to the fact that a person or organization with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well-placed to call the attention of the court to an apparent misuse of public power. . . .”

In Australia, Justice McHugh in Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, stated as follows:

"An early common lawyer would have some difficulty in comprehending the modern doctrine of standing, a doctrine basically created in the nineteenth century. Until the great pleading reforms in the middle of the nineteenth century abolished the forms of action, questions of standing could hardly arise in private law litigation. A plaintiff either came within the form of action or was outside it. However, in matters concerned with the issue of the prerogative writs of mandamus, prohibition and certiorari, support can be found in the cases for the proposition that the person applying for the writ had to have some interest in the remedy. In the case of mandamus, it may even have had to be a legal right. On the other hand, prohibition may have been obtainable by a stranger to the dispute.

However, it is equity, rather than the common law, from which much of the modern doctrine and many of the controversies concerning standing have arisen. Suits seeking equitable remedies to determine, restrain or enforce public rights and duties have played a major role in the development of the doctrine of standing.

By the end of the nineteenth century, it was generally accepted that an ordinary member of the public had no general right to invoke the aid of the civil courts to enforce public law rights or duties."

In that case the Aboriginal Community Benefit Fund Pty Limited was established under the Corporations Law. It conducted a business of operating a contributory funeral benefit fund.

The Batemans Bay Local Aboriginal Land Council was constituted by and derived its functions from the Aboriginal Land Rights Act 1983 (NSW). It also received funds through the New South Wales Aboriginal Land Council to assist in the financing of its activities. Those funds were sourced from land taxes imposed in New South Wales.

The Batemans Bay Local Aboriginal Land Council proposed to establish a contributory funeral benefit fund. That was beyond the statutory functions conferred on it under the Aboriginal Land Rights Act.

The substantive issue in the case was defined by McHugh J in the following terms:

“whether a public corporation is acting contrary to a statute in the way that it disburses public funds and enters into contractual arrangements.”

The majority of the Court stringently criticised continuing reliance on the Boyce principle in Australian public law.

In dicta, the majority said that it may well be appropriate to dispose of any question of standing to seek injunction or other equitable relief by asking whether the proceedings should be dismissed because the right or interest of the plaintiff was insufficient to support a justiciable controversy, or should be stayed as otherwise oppressive, vexatious or an abuse of process.

That is, their Honours suggested that there might not be a requirement for standing to ground an application for an injunction or declaration to enforce public duties. Where a mere stranger to a dispute seeks such a remedy the discretion to refuse the remedy may be more readily exercised.

Their Honours based their decision on the following reason:

“The first question is why equity, even at the instance of the Attorney-General, would intervene. The answer given for a long period has been the public interest in the observance by such statutory authorities, particularly those with recourse to public revenues, of the limitations upon their activities which the legislature has imposed.

Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence and modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter.

Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive procedural stipulation.”

While there may remain some particular restrictions on the availability of injunctions and declarations to enforce provisions of the criminal law, the reasoning in Batemans Bay Land Council establishes that in proceedings in which a plaintiff seeks to enforce a public duty, or to confine the functions of a public authority to their statutory limits, the law of standing will be “an enabling, not a restrictive, procedural stipulation”

As we will see, the history of standing has been one of gradual extension or liberalisation of the scope for private individuals to enforce public interest rights. There is an obvious tension here with the doctrine of separation of powers.

Traditionally, as we will see, only the Attorney-General had standing to invoke the Royal prerogative and challenge the legality of a government decision, unless a person's private rights were affected. The trend by courts, both in England and Australia, towards liberalisation of standing rules certainly enhances government accountability, but may also undermine legitimate and necessary executive powers. As McHugh J said in Bateman's Bay:

"Moreover, any realistic analysis of law, politics and society must recognise that not every law on the statute books continues to have the support of the majority of members of the community or always serves the public interest. Laws that once had almost universal support in a community may now be supported only by a vocal and powerful minority. Yet to attempt to repeal them may be more socially divisive than to allow them to lie unenforced. Moreover, the interests of a society arguably are often furthered by not enforcing particular laws. ..." 

In judicial review at general law, where a prerogative remedy is sought, issues of standing may be inextricably linked with issues relating to the availability of the remedy. However, with the enactment of the ADJR Act, in which the test of standing appears distinct from the question of relief, tests of standing have tended to develop as a body of principles separate from those relating to remedies.

These principles are concerned with the issue of access to the court. However, in Bateman's Bay, as we shall see, the High Court seems to be heralding a move towards increasing emphasis on the discretion whether to grant a remedy, and a reduced emphasis on technical rules of standing to regulate the 'floodgates' of access to judicial review.

Whilst the question of standing to seek judicial review is distinct from that of justiciability, both tests in practice operate to exclude access to the court. The court has a discretion to deal with the issue of standing as a preliminary issue. See Robinson v Western Australian Museum (1977) 138 CLR 283.

Apart from the standing test for seeking remedies at general law or under general procedure statutes, there is a variety of special statutory standing tests arising particularly in the context of specialist courts and regulation of the environment or trade practices.

Standing may be accorded to a 'person aggrieved', or to 'any interested person', or to 'any person' (which effectively means anyone at all has standing. See Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.

In Truth About Motorways, a majority of the Court accepted that an application for a constitutional writ seeking the exercise of the judicial power of the Commonwealth under section 75(v) of the Constitution may be made by a “stranger”. Justice Gaudron stated:

“There is no basis for concluding that either the concept of “judicial power” or the constitutional meaning of “matter” dictates that a person who institutes proceedings must have a direct or special interest in the subject matter of those proceedings… there may be cases where absent standing there is no justiciable controversy.

That may be because the Court is not able to make a final and binding adjudication. To take a simple example, the Court could not make a final and binding adjudication with respect to private rights other than at the suit of a person who claimed that his or her right was infringed. Or there

may be no justiciable controversy because there is no relief that the Court can give to enforce the right, duty or obligation in question.

There is nothing in the word “matter” appearing in Chapter III of the Constitution which demands a particular requirement as to standing … there is no holding of this Court to that effect in the many decisions which would address the requirements of Chapter III.”

Truth About Motorways established that there is no requirement for Chapter III judicial power for there to be any reciprocity of interests between the parties to a Chapter III “matter”. The lack of interest in the matter by the stranger will go to inform the exercise of the discretion whether to grant relief.

The scope of these legislative standing tests depends upon construction of the particular statute and some are not necessarily as wide as the ADJR Act test ('person aggrieved').

Note, however, that an applicant loses standing if his/her personal circumstances change so that they are no longer satisfy the relevant test (e.g. 'person aggrieved'), even though they originally had standing at the time the proceedings began i.e. standing is not an accrued right. See Transurban City Link Ltd v Allan [1999] FCA 1723.

Moreover, more recent Federal Court decisions have indicated a somewhat narrower approach to standing than might be suggested by some of the more general dicta in Bateman's Bay. See Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 698:

"The question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases." Also see Maritime Union of Australia v Honourable John Anderson [2000] FCA 850 at [44] - [55].

The Full Court's decision was upheld by the High Court in Allan v Transurban City Link Limited [2001] HCA 58.

In the High Court, the following exchange occurred between counsel for the applicant to the AAT and the Justices:

MR DREYFUS: … We say that that is really where the error made by the second Full Court lies, and I wanted to take your Honours to a particular passage in the decision of the second Full Court, which is at page 216 of the appeal book, paragraph 50 of the judgment. That is where their Honours summarised the effect of the judgment. They said:

“In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant.”

Then they say: ”There will be a question of degree involved in many cases.”

GUMMOW J: That is all put at some level of generality, which I do not understand, I am afraid.

MR DREYFUS: We say not only is it put at a level of generality, your Honours, but it is incorrect to say that the question of whether or not Mr Allan’s interests are affected by the decision, or whether he is affected by the decision, is to be determined in the way that their Honours have here stated.

GUMMOW J: I mean, what Boyce v Paddington Borough Council has to do with this statute, I cannot imagine.

MR DREYFUS: That point was already made on the special leave application, your Honours, and I do not apprehend that anybody here before your Honours today is going to contend that it has anything to do with this case.

KIRBY J: It is all because we see it so many times that lawyers’ minds get locked into common law notions and they resist looking at legislation. They hate it.

MR DREYFUS: We would respectfully endorse your Honour’s comments.

KIRBY J: It happens all the time. There are so many recent cases where people will not look at the legislation.”

Prerogative Remedies

A person has standing to seek prohibition if that person was a party to the proceedings before the tribunal or inferior court against which prohibition is sought. However, a 'stranger', who is not a party to the proceedings, has standing only at the discretion of the court.

Prior to recent changes to the procedure and standing test for gaining judicial review in the United Kingdom the test of standing to seek prohibition and certiorari had already undergone liberalisation by the courts.

Provided the person was not a 'mere busybody', any member of the public whose interests were affected had standing to seek these remedies in a case of a flagrant and serious breach of the law by a government authority which was continuing unchecked. See, for example, R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Assn [1972] 2 QB 299; R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184. However, tests applying in the United Kingdom are no longer safely relied upon in Australia. See Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 73.

Australian courts have not adopted the English test and tend instead to use the test of whether the applicant has a 'special interest in the subject-matter of the action', which is strictly a test of standing to seek an injunction or declaration (see later).

A person aggrieved has standing as of right to seek certiorari. See Cheatley v R (1972) 127 CLR 291. A person aggrieved is a person who has suffered damage greater than that suffered by ordinary members of the public. However, a stranger, who comes forward as a member of the general public with no particular interest in the matter, has standing only at the discretion of the court.

Nevertheless, where there is a manifest want of jurisdiction, a stranger generally has standing. As in the case of prohibition, the more liberal standing test developed in the United Kingdom is not clearly applicable in Australia, and there is a tendency to have resort to the liberalised test of standing to seek an injunction or declaration, namely whether the applicant has a 'special interest in the subject-matter of the action'.

A person whose 'legal specific right' is affected has standing to seek mandamus to compel the administrator to decide, or decide again, according to law. This test of standing appears to be narrower than that for prohibition and certiorari.

However, as in the case of those remedies, the standing test for mandamus underwent liberalisation in the United Kingdom through the development of the notion that only a person who was a 'busybody' in relation to the action should be excluded from seeking judicial review. A person who exercises a legal right to participate in a tribunal hearing has standing to seek mandamus in respect of the tribunal's proceedings. See Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.

Injunctions and Declarations

Suit by Attorney-General

As principal law enforcement officer of the Crown the Attorney-General has standing to seek an injunction or declaration to enforce a public right. See Cooney v Council of the Municipality of Ku-ring-gai (1963) 114 CLR 582. The Attorney-General may therefore seek judicial review of his or her own motion. Alternatively, a private individual may approach the Attorney-General and request the grant of a fiat for a relator action. If the Attorney-General refuses his or her fiat, or consent, that refusal is not a justiciable decision. See Gouriet v Union of Post Office Workers [1977] 3 All ER 70; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 527.

Standing of others

Persons other than the Attorney-General have standing to seek an injunction or declaration in two situations. The starting point of most discussions is the decision in Boyce v Paddington Borough Council [1903] 1 Ch 109.

That case concerned proceedings commenced by a plaintiff for injunctive relief to which the Attorney-General was not a party. The view from the plaintiff's block of flats had been obstructed by a Council advertising hoarding.  Thus, although this did not amount to infringement of any legal proprietary right, Boyce clearly suffered special damage. Buckley LJ at 114 said:

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such that some private right of his is at the same time interfered with (eg where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."

Most statutes enacted for the protection of public health, the environment or planning create public rights rather than private statutory rights of individuals. A court does not lightly infer that there is a legislative intention to confer a private right which would found standing.

An individual must either obtain the fiat of the Attorney-General for a relator action or establish that he or she falls within the second limb in Boyce's case.

Special interest in subject matter of action

The second limb in Boyce's case was modified and liberalised as a result of the decision of the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 ('ACF case').

Gibbs J held that the formulation of the test by Buckley J in Boyce's case was misleading in several respects and that the test should be whether the plaintiff has a 'special interest in the subject matter of the action' (rather than being confined to 'special damage' which is obviously a narrower concept).

A special interest was distinguished from a 'mere intellectual belief or concern', which did not found standing. Although a special interest need not amount to a legal right, it was not established by the Australian Conservation Foundation in the ACF case. The foundation was simply a group of people sharing a common concern for the environment!

Since cases on standing are very varied and much depends upon the subject-matter of the litigation and the nature of the relief sought, a special interest in one case may not be a special interest in another. A special interest in the subject matter of the action will be established by an individual whose financial or proprietary interests are affected by the administrative decision, even if those interests do not amount to legal rights (see ACF case).

In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, the High Court held that an interest of a spiritual or emotional nature may ground standing to seek an injunction. However, the special position of the aboriginals, who were the plaintiffs in Onus, in terms of aboriginal customary law, gave them standing where perhaps general environmental groups seek standing to restrain development in breach of environmental and planning legislation may in some cases have more difficulty in establishing a 'special interest'.

Nevertheless, the question of whether an applicant will be held to have standing depends upon the particular facts of the case, the particular interest of the applicant and the legislative regime involved.

In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 the issue was whether a union had standing to challenge the decision of the respondent Minister to permit Sunday trading by granting certain certificates in effect exempting shops in the Central Business District of Adelaide from regulations prohibiting trading on Sundays.

It was held, not surprisingly, that the Union did have standing. It represented members who were shop assistants employed in the Central Shopping District and had a special interest in the trading hours since alteration of them would necessarily affect the terms and conditions of employment of members of the Union.

In reaching this conclusion Brennan, Dawson, Toohey, Gaudron and McHugh JJ applied the test derived from the ACF case and stated by Gibbs CJ in Onus at 558 in the following terms:

"A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action."

Their Honours commented upon this test briefly as follows:

"The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest."

In the ACF case, in which it had been held that the appellant had no interest to challenge a decision made under regulations affecting foreign exchange, Gibbs J explained what was meant by "special interest". His Honour said at 530:

"... an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails."

The fact that in the ACF case the conservation body opposed a resort development which depended upon the outcome of an application for exchange control approval did not suffice to give it standing to oppose the grant of approval.

Had the ACF sought to challenge a decision more directly related to the development as, for example, happened in some later cases, such as North Coast Environment Council Inc v Minister for Natural Resources (1994) 55 FCR 492, the outcome may have been different.

Adjoining landowners, unlike environmental groups, normally have standing to challenge planning decisions affecting neighbouring land (ACF case). Social and political interests may even ground standing (ACF case).

In North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728 (7 December 2001), Weinberg J equated the position of NAALAS as a representative body to that of a trade union in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552. Weinberg J said (at [62]-[63]):

"In my view NAALAS' interest in the validity of Mr Bradley's appointment is relevantly a 'special interest'. It has the same interest in that issue as would any of its clients appearing before Mr Bradley. In SDA it was held that a trade union had the same interest in the subject matter of the dispute as its individual members. That reasoning seems to me to be equally applicable to NAALAS in the present circumstances: see generally Executive Council of Australian Jewry v Scully (1998) 79 FCR 537.

I should emphasise that I am not expressing any view as to whether a legal practitioner representing a client before Mr Bradley (as distinct from that individual client) would have standing to challenge the validity of his appointment. Such a practitioner cannot be equated with an incorporated body such as NAALAS, which has particular responsibilities towards Aboriginal persons and the Aboriginal community generally. NAALAS occupies a pivotal role in the administration of criminal justice in the Northern Territory."

The standing of business competitors

A competitor may have standing to challenge a decision affecting it commercially. See Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. But compare Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 121 ALR 373, where a competitor was held not to have standing to challenge a decision made under the Therapeutic Goods Act 1989. In Bateman's Bay, McHugh J said (at [66]-[69]) that the distinction is that:

"where breach of a public duty has only an indirect effect on a plaintiff's pecuniary interests the plaintiff has no standing. Thus in Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1963) 80 WN (NSW) 48, the New South Wales Supreme Court denied standing to a plaintiff who sought to restrain the Australian National Airlines Commission from carrying out a contract on the ground that the contract had been accepted in preference to the plaintiff's tender and was beyond the Commission's powers. Jacobs J found that the plaintiff's commercial interest was not sufficiently direct to ground standing.

In the crucial passage in his judgment (KAP note - in Bateman's Bay at first instance), McLelland CJ in Eq adopted the reasoning of Jacobs J. McLelland CJ in Eq said that where a plaintiff's pecuniary interests were indirectly affected (1996) 92 LGERA 212 at 219):

"it seems to me that in order to attract standing to sue, a plaintiff's 'special interest' must as a matter of principle be an interest of the general kind which the relevant public right was intended to safeguard or protect, or, where the 'special interest' consists in a vulnerability to 'special damage', the damage must be 'within the same class of damage as the public suffers as a whole' and not just 'any side effect of the infringement of the public right."

A liberalised test of common law standing?

In Bateman's Bay the first respondent to the appeal operated a contributory funeral benefit fund catering for members of the New South Wales Aboriginal community and was the trustee of a benefit fund for the community which had some 3000 members. The second respondent, which was related to the first respondent, operated a contributory life insurance business for members of the community. The appellants were, in effect, an Aboriginal land council.

The appellants proposed to conduct a contributory funeral benefits fund. The respondents sought to challenge the power of the appellants to do so in circumstances where the Attorney-General of the State of New South Wales had declined to grant a fiat. It was held that the respondents had standing to seek injunctive relief to prevent apprehended economic loss as a consequence of the alleged ultra vires activities proposed to be undertaken by the appellants.

The leading judgment was delivered by Gaudron, Gummow and Kirby JJ. Their Honours pointed out that it was significant in analysing the question of standing where injunctive relief was sought to have regard to the considerations upon which equity intervenes in public law cases. The basis of this intervention is, importantly, to be found in the public interest in the maintenance of due

administration (rather than necessarily in any 'special interest' on the part of the applicant).

In the course of the judgment, the formulation in Boyce came under some criticism from their Honours. In particular, Their Honours noted that the English doctrine was based on the independence of the Attorney-General in that country. This independence does not apply under Australia's system, where the Attorney-General is a member of Cabinet, so that the notion that he could necessarily be counted on to intervene to protect the public interest against a Cabinet colleague may be 'fanciful'.

Thus there may be a need for liberalised rules for standing where the A-G refuses his fiat (or perhaps even where it is obvious that he will do so).

Their Honours suggested that access to the courts might appropriately be governed by exercise of judicial discretion to refuse a remedy (especially an equitable remedy) rather than technical rules of standing.

There is a clear suggestion that Their Honours agreed with the Australian Law Reform Commission in its review of standing rules 'Beyond the Door-Keeper', which recommended liberalisation of access/standing rules While referring with approval to the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh in Shop Distributive and Allied Employees Association, their Honours noted the danger of adopting any precise formula as to what sufficed for a special interest in the subject matter of the proceedings, where to do so might unduly constrict the availability of equitable remedies to support the public interest in due administration.

ADJR Act

Standing under the ADJR Act depends upon the applicant establishing that he or she is a 'person aggrieved'. The ADJR Act defines a 'person aggrieved' as a person whose interests are adversely affected by a decision or determination to which the ADJR Act applies.

The test of standing therefore depends upon the decision being justiciable under the ADJR Act. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The concepts of standing and justiciability are closely related. There is also a standing test for joinder as a party to proceedings under the ADJR Act. This is a test of 'person interested' (ADJR Act section 12).

For proceedings under the Judicial Review Act there are three parties whose standing must be considered.

First, there is the plaintiff. To obtain review under ss5, 6 and 7, and to obtain reasons under s13, the plaintiff must be a person who is aggrieved, ie aggrieved by the decision, (S 5) conduct (S 6) or failure to make a decision. (S 7)

Second, under s12 a person may join an application for review once the application is made. To do this they have to be a person interested. (S 12)

Third, the Attorney General can also intervene, (S 18) although the Attorney General intervenes as of right. Hence, the only standing required is to be the Attorney General.

Liberal construction by court

The Federal Court has maintained consistently that, because the ADJR Act is remedial legislation, the expression 'person aggrieved' should not be given a narrow construction. Thus a person may be 'aggrieved' even where no legal right or interest of theirs is affected by the decision.

There is an inclusive definition of “person aggrieved” in s3(4). It defines the phrases “aggrieved by a decision,” “aggrieved by conduct,” and “aggrieved by a failure to make a decision.” In each case, a person is aggrieved when their interests are “adversely affected” by the decision, conduct or failure to decide.

Since this definition is merely inclusive and not exhaustive, there are two tests for standing, (i) a person whose interests are “adversely affected,” or a (ii) person “aggrieved” in its natural sense. Standing may be approached through either of the two phrases.

As it turns out, the cases have largely ignored the definition and focused on person aggrieved itself. The reason for this probably lies in the similarity of the two phrases – “person whose interests are adversely affected” semantically differs little from “person aggrieved.” Nevertheless the definition reveals something important. The phrase “person whose interests are aggrieved” reveals clearly that standing has two requirements, the stake or interest which the applicant has (“interest”) and a threatened interference with it (“adversely affected”), whereas in the formula in the ss 5. 6 and 7, both of these concepts are wrapped up in “aggrieved.”

A general test for determining whether interests are affected is that the person suffers, not just as any member of the public but as a person who suffers a grievance beyond what an ordinary member of the public suffers.

However, if there is no clear and imminent danger to the interests of the applicant but only an indirect or fanciful danger, and the applicant will not gain something of significance if successful in the proceedings, the standing test is not satisfied. See Australian Foremen Stevedores Assn v Crone (1989) 98 ALR 276 (compare Shop Distributive and Allied Employees Association).

A grievance may arise from a decision which adversely affects business interests (Bateman's Bay). A person may be aggrieved if his or her rights against third parties are affected by the decision. A person whose employment, or posting as an employee, is affected may be a person aggrieved.

See Ogle v Strickland (1987) 71 ALR 41 where a priest whose vocation it is to repel blasphemy was held to have standing under the ADJR Act to bring an action challenging a decision of the Censorship Board to allow the importation and registration of a film which might be offensive to those professing the Christian faith.

Much of this has now been overtaken by the High Court’s action in translating just about all standing requirements as entailing that a plaintiff seeking judicial review must have a special interest.

Is there a difference between the ADJR and general law tests?

In construing the expression 'person aggrieved' the Federal Court often refers to the test at general law for standing to seek an injunction or declaration. This test requires that the applicant have a special interest in the subject matter of the action (ACF case).

In Ogle v Strickland, Wilcox J would have been prepared to find that a member of the community (not even a priest) who professed the Christian faith had standing to seek review of a decision of the Censorship Board to allow importation and registration of a film which challenged the fundamental precepts of that faith.

In a more recent decision concerning the Australian Conservation Foundation, it was held that the Foundation had standing to seek review of a decision to permit logging of a forest. See Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70. Although the ACF had not been accorded standing by application of the test at general law in the earlier High Court decision (see earlier in notes), the court took note of changing community perceptions of the role of public interest groups.

On this more liberal view an organisation whose objects and activities indicate that it has played a leading role in relation to the decision which is challenged and which appears to be recognised in terms of 'current community perceptions and values' may have standing to represent the public interest.

However, a landowner whose property adjoined the area proposed for logging had no standing to challenge a decision which raised issues relating to the national estate rather than damage to private property.

The Bateman's Bay case raises the intriguing possibility that the general law test may now be more liberal in some respects than the ADJR test.  Gaudron, Gummow and Kirby JJ suggested that an applicant would not even necessarily need to be an 'aggrieved person' where they had sought the Attorney-General's fiat and it had been refused (or obviously would be).

Bateman's Bay involved seeking prerogative remedies at general law, not under the ADJR Act (it was a challenge to a decision of a NSW State instrumentality, so ADJR was not available). Had it been a ADJR case, it would not have been open to the Court to grant standing to an applicant who was not an 'aggrieved person'. 

The High Court has effectively created a common formula for standing for all remedies, whether under common law or under statutory provisions such as the AAT Act, the Ombudsman Act or the Judicial Review Act.This common formula is that the plaintiff should have a “special interest” in the decision under challenge. See Kioa v West (1985) 159 CLR 550; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552. Thus, no matter how the standing requirement is phrased (“person aggrieved,” “person affected,” “sufficient interest” etc), no matter what the remedy and regardless of whether it is in statute or common law, courts will generally treat it as requiring a special interest. Various formulations, which have a common ring, have been used to define special interest. It is:

# an “interest exceeding that of the public generally” - Onus v Alcoa (1981) 149 CLR 27 # an interest “over and above that enjoyed by the public generally” - Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493

# an interest greater than that of ordinary members of the public, - Fordham v Evans (1987) 72 ALR 529 # an interest which is “special in comparison with the interest of the public at large” - Onus# an interest “beyond that which is shared with the wider public” - Alphapharm v SmithKline Beecham (1994) 49 FCR 250

# an interest which “rises above that of an ordinary member of the public” - Schokker v Commissioner, AFP (1998) 154 ALR 183

# an interest which is “something more” than the interest which everyone has “ - Allan v Development Allowance Authority (1998) 152 ALR 439 and

“an advantage special to the person which they gain when the decision is set aside.” - Lord v Commissioners of the AFP (1998) 154 ALR 631

Standing to be joined as party

In addition to the 'person aggrieved' test for standing to initiate an ADJR challenge, a person may be joined as a party to proceedings if he/she is a 'person interested' (section 12). This test is construed similarly to the 'person aggrieved' test.

Thus, as a result of a direction made by the Trade Practices Commission that the Australian Federation of Consumer Organisations was entitled to be present at a conference held under the Trade Practices Act 1974. AFCO had an interest different in kind from other members of the public, which was sufficient to support its standing to seek judicial review of the conduct of the conference. See United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79.

Conclusions

As with general law tests for standing, there is an evident trend towards liberalisation of the ADJR standing tests. It appears that the prevailing High Court view is that access to the courts in public law matters may be more effectively controlled, and the competing public policy considerations more easily balanced, by exercise of judicial discretion as to whether to grant a remedy than by rules of standing.

Under the ADJR Act, the court has a quite broad discretion as to whether to grant relief, even where standing exists and a review ground has been

established. The same is true of the equitable remedies of injunction and declaration, while the old common law prerogative writs are considerably less flexible, but nevertheless allow for some judicial discretion.

Another issue worth noting concerns the relationship between standing rules and access to the courts. It has sometimes been suggested that standing rules should operate to ration the use of judicial resources.

In practice there is no need for standing rules to perform that function, since the cost of bringing proceedings usually ensures that the courts are not overwhelmed with applications. However the disincentive created by the cost of proceedings is clearly a most unacceptable method of rationing access to the courts, since its effect varies enormously according to the financial circumstances of each potential litigant.

The cost of proceedings is rightly seen not as a rationing device, but as a barrier to access to the courts. It may be that if a means were found to remove that barrier (or at least “equalise” its effect on different litigants), there could be a more pressing need for standing requirements to operate to limit the matters that can be brought before the courts.

Realistically, it seems most unlikely that the barriers to access to the courts will be overcome to that extent. However that then raises another issue. If there is no significant change in the high cost of curial proceedings and the limited availability of legal aid, it is at least possible that the removal of standing requirements could have a regressive effect on the extent to which the law operates for the benefit of the whole community, and in particular, those of limited means.

One must assume that open standing would be of greatest benefit to those who have the means to make use of the courts. That is particularly likely if there is no real constraint on the use of judicial review as a means of promoting or protecting commercial or competitive interests.

The danger here is well described by Evans:

“Given the cost of litigation and inequality of access to the services of lawyers and to the courts, a “liberal” standing law will simply confer a further advantage on those who are privileged in the political process already or will sustain the undemocratic possibility of attack in the courts by traditional vested interests on “socially progressive” government policies or programs. In that sense, the promise of a

“liberal” standing law for those who are presently disadvantaged in society and in the political process is but a snare and a delusion.”

It can of course be argued in response that the relaxation of standing requirements could also facilitate the bringing of proceedings by a representative on behalf of persons who lack the means to take action themselves. However it is dangerous to assume that relaxation of standing requirements will promote “public interest” proceedings more than proceedings brought to protect commercial and competitive interests.

It would seem that, in fact, the dicta of the majority judges in Bateman’s Bay stops well short of an endorsement of open standing. The majority also recognise that, in federal jurisdictions, the constitutional requirement of a “matter” imposes minimum requirements that are analogous to, or overlap with, standing requirements.

The judges appear to envisage a presumption in favour of standing, but qualify this by suggesting that proceedings may be dismissed if “the right or interest of the plaintiff [is] insufficient to support a justiciable controversy” (emphasis added).

The reference to the sufficiency of the plaintiff’s right or interest implies something more is required than just an evaluation of justiciability. At thevery least though, the test entails a prima facie presumption in favour of standing. It would also appear to suggest a shift away from the “special interest” approach, and its emphasis on the need for an interest greater than that of the general public.

If that is so, it may be important and a desirable development. The requirement of “special damage” or an interest greater than the general public is, as the majority note, somewhat incongruous when applied to the enforcement of public rights and duties.

It would almost seem to be designed to ensure that the plaintiff has some additional or extraneous interest going beyond simply enforcing the duty – an “ulterior motive”, one might say. This, I suggest, goes to the heart of the courts’ difficulties in dealing with the issue of competitor standing.

The problem is not so much that the test allows standing to a person with “commercial” motives, but rather, that it denies standing to a person who simply and genuinely wishes to see the law enforced. If that is correct, the majority judges are right to marry their recognition of “commercial” interests with a questioning of the “special interest” concept.

The Australian Law Reform Commission in its 1996 report, recommended that:

“Any person should be able to commence and maintain public law proceedings unless

• the relevant legislation clearly indicates an intention that the decision or conduct sought to be litigated should not be the subject of challenge by a person such as the applicant; or

• in all the circumstances it would not be in the public interest to proceed because to do so would unreasonably interfere with the ability of a person having a private interest in the matter to deal with it differently or not at all.”

It appears that the concept of “private interest” in the second proviso was intended to have a broad meaning. If so, there will usually be at least one person who can claim to have a “private interest in the matter”, and the operation of the test will turn very much on the concept of “unreasonable interference”.

The report gives no real indication as to what is meant by the concept, but conceivably it could involve a consideration of factors similar to those described above.

A further relaxation of standing requirements, without more, would lead to what Harlow and Rawlings called the English “funnel” model.

Harlow and Rawlings have argued that this was an unsustainable compromise between the traditional “drainpipe” model and the American “freeway”. More recently they have commented:

“Elsewhere, the authors have likened English judicial review to a funnel, generous with access, sucking in litigants and more recently intervenors. … This is the ‘public interest model’, in which the courtroom is seen as a platform for public discussion and forum for debate of matters of public interest by litigants who are increasingly interest and pressure groups. When we wrote this, grounds for review were less expansive, while remedies remained within the traditional drainpipe model. We argued that the model could not remain static; generous access would inevitably create pressure on later stages of the process.

Our prophecy is beginning to be fulfilled. [They refer to English developments demonstrating a more expansive approach to jurisdiction

and remedies] …The growth of rights-based theories of judicial review has buttressed the public interest model. Consciously or unconsciously, courts under the leadership of a relatively interventionist judiciary, are beginning to function as a surrogate political process, responsive to the pressure created by generous access to the courtroom.”

There is as yet no indication that the High Court wishes to move in that direction. There are dangers for the courts in becoming a “surrogate political process”.

They may fall prey to the same shortcomings that affect the political process, and in doing so, give up the advantages that flow from their individualistic focus and incremental approach.

It is also questionable whether the interventionist approach of the English courts is appropriate in Australian jurisdictions given the significant differences which exist in terms of constitutional and political frameworks, and the content of statute-based administrative law.

To extend the metaphor, Dyer has suggested this might be called the “round-about” model. It would involve the courts retaining a relatively tight reign, by means of standing and justiciability requirements, on the types of matters they deal with, but at the same time permitting limited participation by a wider range of affected persons through greater willingness to accept interveners and amici curiae.