Open Standing - A theory based summary along with opinion for a ideological questions PDF

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A theory based summary along with opinion for a ideological questions , A theory based summary along with opinion for a ideological questions ...

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OPEN STANDING The common law traditionally requires a plaintiff to show locus standi, or standing - a sufficient interest in the matter - before being given the right to take action. One of the justifications for the standing rule is to protect the courts from meddlesome busybodies, but this argument has been discredited and rejected by the Australian Law Reform Commission (ALRC) (ALRC, Beyond the Doorkeeper: Standing to Sue for Public Remedies, Report No 78, AGPS, 1996). The ALRC recommended that any person be permitted to commence a public law case unless the litigation would unreasonably interfere with another person's private interests. The Basic Rule – special interest required In Australia there is no "public interest standing" doctrine. Instead, the basic test for standing was established in Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493, where the High Court ruled out open standing. With Murphy J dissenting, the court rejected the 'standing of the ACF to challenge the minister's decision to approve a tourist development without a final Environmental Impact Statement as required by statute. Although the ACF had previously submitted written comments to the minister on a draft EIS, the court ruled that the ACF had no "special interest" at stake, merely "an intellectual or emotional concern". Mason J equated "special interest" to property, business or economic interests, or perhaps social or political interests. Therefore, the test for standing for both injunction and declaratory relief in administrative law at common law is that the complainants have a ‘special interest in the subject matter of the action’. Gibbs J.: “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.” Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, which established the principle that standing does exist where the Plaintiff has a right to be heard by the administrative decision-maker. Application of the special interest test Examples of how this test has been interpreted include: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, where it gave two members of an Aboriginal tribe standing to challenge Alcoa's breach of the Victorian Archeological and Aboriginal Relics Preservation Act 1972 that affected their people's land and relics. Gibbs CJ said that, although the two Aborigines had no individual rights infringed, they had a substantially greater interest in the subject-matter than other members of the public did. 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'. Ogle v Strickland (1987) 13 FCR 306 the Federal Court recognised the standing of two priests challenging the censorship board's registration of an allegedly blasphemous film. The court said the doctrines of the Christian Church had no less cultural and spiritual significance for the priests than relics for Aborigines. Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70 the court gave the ACF standing because the "public perception of the need for the protection and conservation of the natural environment and for the need of bodies such as the ACF to act in the public interest has noticeably increased, as is demonstrated by the growth of the ACF itself since the time of the ACF Case" (at 73). Also by the time of this second decision involving the ACF it was in receipt of government funding and sat on government advisory panels involving the environment. Right to Life case (1994) - Full Federal Court – denied standing to challenge importing an abortion inducing drug. Alphapharm case (1994)- Full Federal Court: company’s commercial interests did not satisfy the test ‘interests affected’, as it was held that these were not the type of interests that were meant to be protected. Bateman Bay Local Aboriginal Land Council case the High Court held that while a commercial competitive interest may not be sufficient, if there is a nexus between the interest of the complainant and the relief claimed the test will be satisfied. Prerogative writs: an anachronistic exception One of the anachronisms of administrative law is that different standing rules can apply, depending on which judicial remedy is sought. It is particularly anachronistic that the old prerogative writs may be the least difficult to access if standing is in doubt. Indeed, "mere strangers" may have standing to seek prerogative writs. In Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Ltd (2000) 200 CLR 591, the High Court accepted that "strangers" have standing to seek three writs: prohibition, habeas corpus and quo warranto. 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 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 A 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'). 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....