Administrative LawLSS Policy and Revision Seminar

Policy – The Issue of Standing

Current Law on Standing. Arguments in favour of a broad

approach Arguments in favour of a narrow

approach Other relevant policy issues – North

Coast CF Right to Life Example questions on the issue of

standing

Origins of the Doctrine of Standing

Limiting the class of people who can seek judicial review of government decisions has been a tradition of administrative law.

The limitation was originally couched in terms of public interest and private interest.

A person or organisation only had a right to challenge a decision which affected a private interest.

They could only seek review of a decision affecting a public interest if a private right was also infringed or if they suffered some special damage.

Current Position

There are two standing tests; common law and Administrative Decisions (Judicial Review) Act.

Debate about whether or not this is substantially the same test.

Most commentators see that the position under the AD(JR) Act is broader.

Both tests stem from the private interest model, although neither still uses this language.

The Current Position – Common Law

A person will have standing for judicial review on common law when they have a ‘special interest’ which is more than merely intellectual or emotional (ACF).

This requires that an applicant under the common law be affected in a different way or to a different extent than the public (Allied Shop Distribution).

ACF – Gibbs CJ (paraphrased) Clear that an ordinary member of the public, who

has no greater interest than any other member of the public in upholding the law, has no standing to sue to prevent the violation of a public right or enforce the performance of a public duty.

An interest 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 an action for costs, if his action fails.

Gibbs CJ – Onus v Alcoa

Special interest is flexible principle. The issue of what may be a sufficient

as a special interest may vary depending on the subject matter of the legislation.

Only insufficient where plaintiff is trying to give effect to beliefs and opinions in a matter which does not regard him personally except so far as he holds beliefs and opinions about it.

Common Law - Issues

Considered to be the narrower of the two tests. The special interest requirement as expressed

in ACF is quite onerous. Onus may be seen as an attempt to create

broader standing but it appears that the cultural subject matter of the case was very important and there may not have been standing otherwise.

Could take the view that cultural group may show standing under C.L through Onus but that a public interest group, such as ACF, may find this challenging.

AD(JR) Act

Person aggrieved (s.5) Interests adversely affected (s.3) by

the decision. Australian Institute of Marine and

Power Engineers v Secretary, Department of Transport; ‘an interest in the matter to an intensity and degree well above that of an ordinary member of the public’ as per Gummow J.

ACF v Marine and Power Engineers

The common thread of these cases is that the applicant’s interest must be greater than that of the public.

On reading these two cases ; special interest and person aggrieved are similar tests.

Note that facts of Marine and Power Engineers did not involve a public interest body.

Controversy in standing relates largely to the role public interest bodies should play.

North Coast Environmental Council v Minister for Resources (1994) FCA

Peak environmental group wanting standing to challenge a government decision to grant a licence to Sawmillers to export woodchips.

Difficult to see that North Coast would be affected by decision other than their interest in conservation and hard to find an advantage or disadvantage from the decision to grant the licence.

Held by Sackville J that North Coast had standing.

Key Factors in Sackville J’s decision

Peak environmental body with 44 other conservation groups as members and activities relate to affected area.

Recognised by Cth as significant and responsible environmental organisation in form of financial grants.

Recognised by Gov of NSW as body that should reflect environmental concerns on advisory committees. Participation in state gov decision making.

Key Factors in Sackville J’s decision (cont.)

Conducted and coordinated programs on significant matters of environmental concern for which received Cth funding. Not specifically on issue of wood chipping.

Submissions to Resource Assessment Commission on forestry issues and funded a study of old growth forests.

Therefore, no mere busybody and has an interest which is far more than intellectual or emotional.

Notes on Judgment in North Coast

Sackville J draws conclusion of substantial interest but this appears more closely linked to the nature of the group, as opposed to an identifiable interest.

The persuasiveness of government funding and support is concerning, as it suggests bodies recognised by government of the day have greater ability to show standing.

A special interest group with government recognition, peak body status etc will appear to have standing where a decision relates to their issue of public policy concern without identifying a specific interest.

Right to Life Assoc. v Secretary Dep’t Human Services and Health

1995 – Full Court of Federal Court decision.

Decided shortly after Northside and two decisions co-exist despite the vastly different approaches.

Case involved Right to Life wanting to seek judicial review of decision not to stop the clinical trial of abortion pill carried out under the Therapeutic Goods Act.

Judgment of Lockhart J

Must gain benefit or advantage greater than ordinary member of the public or detriment or disadvantage greater than ordinary member of the public.

The right to try and influence public or politicians does not create standing in court of law – must be more than emotional or intellectual pursuit or mere satisfaction.

Therapeutic Goods Act is source and is not directed at ‘wide social and moral issues related to abortion’ but has object of establishing and maintaining a national system of controls, relating to the ‘quality, safety, efficacy and timely availability of therapeutic goods’ used in Australia.

Notes on Judgment of Lockhart J

There is an echo of the stricter approach in ACF as requirement of advantage or disadvantage.

Public interest body and its activities and status in community are not factors which assist in finding standing.

The requirement that the public interest group’s interest match the purpose of the Act appears to narrow standing requirements further.

Dealing with Public Interest Bodies

Common Law – ACF illustrates that a public interest body will not have a right to standing based on its status but must have a ‘special interest’.

AD(JR) Act – North Coast makes it easier for public interest bodies to make out standing but Right to Life appears contrary.

Compare s.27(2) of AAT Act which appears to give public interest bodies automatic standing where the decision relates to their objects/purposes.

The principles relating to standing under the AD(JR) Act should be settled in a way which erodes the effects of North Coast. Public interest bodies should be subjected to the same standing requirements as all other bodies and persons. Discuss.

Potential Policy Question

Arguments for Broad Standing Strict standing requirements may inhibit the

ability of the courts to prevent unlawful government action.

Public has an interest in decision makers being kept accountable and in ensuring compliance with legislation that affects public.

This is not the best way to prevent inappropriate litigation but that should be done through court powers and not be restricting the ability of the public to keep decision makers accountable.

Arguments for Broad Standing (cont.)

Democracy, such as Australia, requires citizen participation in matters of government.

Unnecessary technical barrier as the tests are complex and confusing, inconsistent and may be dependent on the value a particular judge attaches to an interest.

Contrary to fundamental principles of admin law because a rule of law society requires that the decisions of admin decision makers be open to scrutiny.

Arguments for Narrow Standing Court must adjudicate between parties to disputes

about matters affecting their legal rights and duties, should not waste time and resources adjudicating matters where parties are not so affected.

More frequent need for court to determine matters of public policy.

Undesirable that government decisions should be at risk of being set aside by suit of persons with no personal stake whatsoever in that decision.

Fuel a growth in overall litigation, as more cases before court which would place a strain on court time and resources.

Arguments for Narrow Standing (cont.)

The doctrine of standing is an established element of administrative law and any radical change to this doctrine is a matter for the legislature rather than the courts.

Parliamentary sovereignty – it is for the legislature rather than courts to determine what the law should be.

Similarly, may be that courts are not the most appropriate forum for raising grievances about public policy issues.

Commentary by Gibbs CJ on the issue of Standing – Onus v Alcoa

‘On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of law by another, there exists the possibility, not only that the process of law will be abused by busybodies, cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that that it is desirable in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings’.

Robert French CJ – a comment on Admin Law

The core elements of justice delivered by administrative decision makers are;

Lawfulness Rationality Fairness

Consider: If this is the criteria by which admin law is measured, does current doctrine of standing uphold these principles?

Past Exam Policy on Standing

There is no reason to maintain a standing rule in judicial review. Standing should be abolished so that any person or body wanting to commence judicial review of a proceeding should do so. Discuss.

(This question is advocating abolition of standing, so even more extreme than broad requirement).

So your policy response… Set out current law which is relevant to

the question clearly.

(With regard to sample question – what are the current standing requirements. This is a broad question so no need to go into detailed facts of cases. Need to state that standing currently exists and how it applies).

So your policy response… (cont.) Have a position – do you agree or disagree with the

statement provided? Bring in case quotes and general arguments to

bolster position.

(Consider importance of rule of law, inc as part of French’s criteria, arguments about democracy and importance of accountability and weigh against expense and inconvenience on courts and P’mentary sovereignty arguments - can qualify statement; position may be that courts should not do something so radical as abolish standing but that requirement should be broadened).

So your policy response… (cont.) Suggest any relevant reforms;

eg. should provision be inserted into AD(JR) Act to mirror AAT Act provision?

Should special interest test always be flexibly applied so that even emotional or intellectual concern may in some instances give rise to standing?

Should standing be abolished?

NB; it is also legitimate to completely disagree with the question. Consider these issues over the coming weeks and develop position before exam.

General Revision

AAT Merits Review

Jurisdiction; s.25 AAT Act provides that jurisdiction must be conferred by Act.

Standing; s.27 AAT Act = person affected. Be aware of s.27(2) and public interest bodies (policy and problem).

The AAT can look into merits of decision with full powers of first DM s.43 but not limited (Greenham) and trying to arrive at correct and preferable decision (Drake).

Under s.43 can remake decision and substitute own.

AD(JR) Judicial Review

Jurisdiction; s.5 a decision, s.3 means a decision (Bond) of an administrative character (general rules) made under an enactment (Griffith University v Tang).

Standing; s.5 person aggrieved, s.3 includes interests adversely affected. Public Interest Body – North Coast or Right to Life.

Reasons; Likely to be furnished if standing and jurisdiction under s.13.

AD(JR) Judicial Review (Grounds)Ultra Vires

s. 5(1)(d) – what power does statute confer? Could DM be beyond scope?

s.5(1)(b) – is there an essential procedural condition? Has DM not complied, and is it intended this means invalidity (Project Blue Sky)?

s.5(1)(c) – does decision maker have jurisdiction; is there statutory delegation or are they acting as agent (Carltona)?

AD(JR) Judicial Review (Grounds) s.5(1)(e), (2)(a) and (b) – According to subject matter,

scope and purpose of Act has decision maker taken into account irrelevant consideration or failed to take into account a relevant consideration?

s.5(1)(e), (2)(c) was the power exercised for a purpose other than that for which it was conferred? Was there bad faith? S.5(1)(g) and (e), (2)(d).

s.5(1)(e), (2) (g) was the decision so unreasonable that no reasonable decision maker could have made it?

AD(JR) Judicial Review (Grounds) s.5(1)(h), (3)(a) or (b) was there a particular matter

required to be established and no evidence produced by which the DM could be reasonably satisfied that it was so established? Was the decision made on the basis of a fact that did not exist?

s.5(1)(e),(2)(f) was DM exercising discretionary power according to policy without having regards to the merits of the particular case?

s.5(1)(e), (2)(e) did the DM exercise personal discretionary power at behest of another, ie. Dictation?

AD(JR) Judicial Review s.5(1)(a) Breach of Rules of Procedural Fairness; has it been

excluded by the decision being political (O’Shea) or a right of appeal (Twist v Randwick)? There must be strong language and definite intention (Miah).

Is Procedural Fairness applicable under Kioa v West; does decision affect a right, interest or legitimate expectation of applicant in a direct and immediate way?

Hearing – content determined by what is fair and just in all circumstances – look for unfairness.

Bias – this rule will be breached where the fair minded lay person might have a reasonable apprehension of bias (Laws).

Remedies; s.16 equating with prerogative writs. Discretionary.

Common Law – Judicial Review

Jurisdiction; S.75(iii) and s.75(v) of Constitution

Standing; special interest test – ACF.

There is no common law right to reasons under the decision in Osmond. Although the decision in Cypressvale includes the provision of reasons in the duty to act fairly.

Common Law – Judicial Review

In relation to the grounds of review under Common Law, the analysis in relation to the grounds of review under the AD(JR) Act will be adopted subject to the qualification that they will be discussed in terms of jurisdictional error. The prerogative writs under s.75(v) are only available for jurisdictional error. There were initially distinct categories of jurisdictional error and non-jurisdictional error at Common Law but decision in Anisminic and Craig make it clear that all errors of law are now jurisdictional.

In relation to no evidence, there must not be any evidence.

In relation to simple ultra vires, it will be determined on basis whether jurisdictional fact necessary to the exercise of power existed but it is not always easy to determine a jurisdictional fact (Timbarra).

Common Law – Judicial Review

Remedies – s.75(v).

Privative Clause – Plaintiff s517;

3 Steps1. Hickman Provisos2. Parliamentary Intention3. Not effective where jurisdictional error.

Be Aware of Question Types Advise X as to rights of review (AD(JR),

Common Law and Merits all apply). Advise Y as to grounds of review (grounds

only – so no jurisdiction, standing, remedies – but both AD(JR) and Common Law).

Advise Z as to rights to review under AD(JR) Act (advise fully under AD(JR) – no C.L or merits).

Advise B as to rights to judicial review (C.L analysis and AD(JR)).