LEC - Standing - Notes PDF

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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 AttorneyGeneral, 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 spec...