(3) STANDING - access to judicial review

Question 1

generally speaking what is required for a person to have standing?

Answer 1

• An individual must show that the decision interferes with their private law rights, or they have a ‘special interest’ in the matter in order to establish standing to seek judicial review at common law (Australian Conservation Foundation)

aka their private rights or obligations are directly affected by the decision

Question 2

If a party has no private right that has been interfered with, what must be shown

Answer 2

that applicant has a special interest in the subject matter (ACF)

Question 3

what is the substance of a special interest (1)

Answer 3

mere intellectual concern/ideological/emotional desire to enforce law or prevent conduct (ACF; Onus v Alcoa)

Question 4

what is the substance of a special interest (2)

Answer 4

must have proximity –> distinguishable from the public at large (Alcoa)

Question 5

ADJR Act - standing requirements

Answer 5

only “person aggrieved” can bring an application for review per s 5(1) –> same as CL test in ACF

Question 6

How should the test(s) for standing be applied generally

Answer 6

in an enabling (not restrictive manner) (Argos)

Question 7

Are commercial interests within the scope of standing?

Answer 7

Yes, at least if severe detriment to business can be established (Batemans Bay)

Question 8

If you’re an expert in the area can you have standing?

Answer 8

Yes, eg if recognised by gov and receive gov funding (North Coast Enviro Council)

Question 9

Is size of the organisation adn level of funding you receive relevant to whether you might have standing?

Answer 9

No (North Coast Enviro Council)

Question 10

Is there a type of interest that needs to be shown/consequence to have standing?

Answer 10

Applicant must establish they have a complaint or grievance which they will suffer a consequence beyond that of an ordinary member of the public; but need not be a financial legal or proprietary interest (Right to Life)

Question 11

Special considerations that support standing for Environmental Groups

Answer 11

• need to be peak org in the region
• recognised by the gov,
• receive Cth funding
• active in projects related to the org’s purpose

(North Coast Environmental Council)

Question 12

Special considerations that support standing for Animal Rights Groups

Answer 12

• sufficient presence in Aus,
• recognition by gov dept making that decision
• expenditure on the matter of concern
• decision directly related to heart of Org’s objects/purpose

(Animal Angels)

Question 13

Test for specific commercial interests and standing

Answer 13

whether the applicant had a commercial interst which was immediate, significant and peculiar to it (Batemans Bay)

Question 14

Can open standing (aka no requirement to satisfy any test) be allowed?

Answer 14

YES - some statutes actually provide for this in the provision

Question 15

If someone can’t satisfy standing tests is there open standing readily available?

Answer 15

In Batemans Bay Gaudron, Gummow and Kirby JJ all indicated support for ‘open standing’ which any person, subject to perhaps limited exceptions may bring proceedings to enforce administrative law norms) given the importance of judicial review in upholding the rule of law.

+ could ask AG

Question 16

Facts in Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund (1998)

Answer 16

ACBF operated funeral fund, then Aboriginla LAnd Council of BAtemans Bay (BBLALC) opened up a fund

ACBF brought proceedings saying BBLALC was in breach of Act allowing ACBF to operate

Question 17

Outcome in Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund (1998) - did ACBF have standing to sue to get an equitable remedy?

Answer 17

had been argued that ACBF only had an indirect financial interest

• whilst ACBF relied on public money (where it was the view that only the AG could bring proceedings)
  held that ACBF had sufficient interest beyond that of a normal person to enforce the Funeral Funds Act

Question 18

Outcome in US Tobacco v Minister for Consumer Affiars (1998)

Answer 18

participation in a structured and formal administrative process that is more formal than a public consultation process will be enough to give an objector standing.

Question 19

Facts Right to Life v Secretary, Commonwealth Department of Human Services and Health (1995)

Answer 19

• RLA sought review of a decision to continue trialling mifepristone in Australia, which is an abortifacient drug.
• The primary judge dismissed the application because the applicant did not have standing

Question 20

Outcome in Right to Life v Secretary, Commonwealth Department of Human Services and Health (1995)

Answer 20

No standing –> not a person aggrieved under AJDR Act s 5(1)

o Concerned primarily with preventing abortion, does not have a public interest
o Right to free speech and to influence opinions of the public does not translate into a right of standing to pursue proceedings in a court of law
 Interests did not fall within interests relevant to the Therapeutic Goods Act.

Question 21

Facts in North Coast Environmental Council Inc v Minister for Resources (1994)

Answer 21

• The North Coast Environmental Council wished to challenge a decision to allow the export of wood chips, taken from forest in which it had established an interest.

Question 22

Outcome in North Coast Environmental Council Inc v Minister for Resources (1994)

Answer 22

• YES - held they had standing as:
  o North Coast was a peak environmental organisation for the affected region
  o Longstanding recognition by the Commonwealth (awarded financial grants)
  o Recognition by State Government, through participation in committees.
  o The conduct of projects and conferences on matters of environmental concern

Question 23

Facts in Animal Angels v Secretary, Department of Agriculture (2014)

Answer 23

• Animals Angels sought judicial review of a decision (ADJR Act + Judiciary Act) by the Secretary of the Department not to exercise powers to sanction an exporter for breaching the conditions of its live export licence.

Question 24

Outcome in Animal Angels v Secretary, Department of Agriculture (2014)

Answer 24

• Animals’ Angels’ object and its activities in Australia gave it standing;
• The relevant Australian government department had recognized Animals’
• Angels’ particular status in the area of live animal export; and It has devoted financial resources to animal welfare in Australia
• The broader and global nature of Animals’ Angels’ objects or purposes do not derogate from its engagement in Australia

Question 25

Facts in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Developent (2014) HCA

Answer 25

• 2 property developers applied to ACT Minister for Enviro Development to get approval for supermarket development –> was approved
• person with another supermarket argued they shouldn’t allow this as would impact business of their supermarket which was close by

Question 26

Outcome in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) HCA - could Ministers decision to approve development proposal be challenged by the business owners as ‘persons aggrieved’ under the ADJR Act?

Answer 26

YES

• several types of interests can give rise to person aggrieved –> was adverse to them and different to that suffered by public at large
• losing significant amount of profit meant they were persons aggrieved