LAWS2201 Lecture Notes - Lecture 4: Batemans Bay, Interest Point Detection, Revenue Commissioners
General
Standing depends on whether a person has sufficient interest in the outcome of a proceeding and is designed to
vindicate personal interests and rights, and not just ‘mere busybody’( Fleet Street Casuals Case)
Two models of standing
Interest- based grievance model
• Whether the applicant has a legal right or an interest which has been adversely affected by the impugned
administrative decision
• This focuses on the protection of individuals against the abuse of government power
Enforcement model
• Whether the applicant is an appropriate person to enforce administrative law norms
o Courts may have regard to the identity, and qualifications of the applicant
o Some applicants may be granted standing for reasons unrelated to their individual interests
o This may be seen as the public interest mode, to ensure public interest points of view can be heard by the courts
‘Open Standing’
Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses [1982] AC: Lord
Diplock argued for an open system to which anyone could obtain a declaration from a court, that in public law, if a
pressure group like the federation, or even a single public - spirited taxpayer, were prevented by outdated technical
rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the
unlawful conduct stopped
• Tho Australian courts remain bound by the special interest test, that test has in some cases extended to the point of
virtual abandonment
• Judicial support in the HC to replace it with open standing regime
o This may reflect the high constitutional purpose of judicial review in the context of s 75(v), that is to ensure that
constitutional, statutory and common law limits on admin power are not exceeded
• Advocates opinion
o Recognise the failure of the courts to produce a coherent jurisprudence fleshing out the special interest test
o Allow increased citizen and group participation consistently with some theories of democracy
• Should be able to have a say in court
o Not preclude the use of alternative mechanisms designed to protect the courts from vexatious or inappropriate
applications for review
o Less arguments about getting into the court, more substantive
Common Standing Issues
Most issues fall within these types
1. community organisations: ACF, Right to Life
2. Trade Unions
3. Commercial entities seeking to challenge decisions favourable to a rival: Batemans’Bay; Argos v Corbel
4. Concerned citizens: Ogle v Strickland; McBain
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Standing – AAT, ADJR, COMMON LAW
AAT
• S 27(2) Group: interests affected
• S 27(1) Individual: interests affected
ADJR Act
• ‘person aggrieved’
S38B Judiciary Act or s 75(v) Constitution
S75(v)
• Personal
o Equitable remedy including injunction and declaration
o ‘special interest’ ACF
o Writs
o Mandamus: some personal connection
o Certiorari, Prohibition, Habeas Corpus: ‘stranger’ McBain
• AG’s fiat
o AG can exercise the discretion to bring an action in his or her own name of give his or her fiat to allow P to bring a
relator action: McBain
o Re McBain; Ex parte Australian Catholic Bishops (2002), 473: the HC pointed that the AG is unlikely to authorise a
relator action to prevent government embarrassmen
o The refusal to exercise this discretion is non-justiciable – Gouriet per Lord Wilberforce
S75(v)
• CH III Courts only have jurisdictions in respect of matter in which the court is asked to determine some immediate
right, duty or liability to be established and more than a legal proceeding- Re Judiciary and Navigation Acts
o Cannot ask for advisory opinion
Cases
Foundation cases
ACF v Commonwealth (1980) 146 CLR 493
• Requirement of a “special interest in the subject matter of the action” if no private rights were at stake. Held that ACF
had a mere intellectual or emotional concern in the action.
• Interests shared with the public at large are insufficient to establish standing
• The court held that the ACF's clear commitment to environmental conservation did not give it a special interest in the
preservation of the environment of the particular site slated for development
• Its interest was essentially ideological
• This decision shows that those interests and concerns should be done through political and not legal mechanisms of
accountability
• The depth of the concern is to be found objectively using “community values” as a yardstick: Stephen J.
• Most courts now take a more liberal view of standing than that in ACF.
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
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