3017LAW Lecture Notes - Lecture 2: Chopsticks, Ghost Bat, Human Services
(1) STANDING
Jurisdiction Section Legislation
Queensland S7(1) JRA Person aggrieved by a decision includes reference to
person whose interests are adversely affected by
decision
Commonwealth S3(4)(a)
ADJRA
Person aggrieved by a decision includes reference to
person whose interests are adversely affected by
decision
Three common situations where questions of standing arise in administrative law:
1. Where a person is claiming to have been adversely affected by unlawful
administrative action. Here the question is whether the nature of the injury is one
the courts will address (singled out)
2. Where it seems the plaintiff is litigating on behalf of someone else.
3. Where the dispute concerns a public interest issue so the question is whether the
plaintiff is more or less interested than the public. (group of people going to court)
Justifications for Standing
1. Avoid frivolous, vexatious and hypothetical actions.
2. Need for a ‘personal’ stake in an outcome
3. Floodgates / resources arguments
4. Some illegality can be tolerated if no one with an interest will sue …
** NEED EVIDENCE
ACF v Commonwealth (1980) 146 CLR 493 (cont) – lead authority for special interest test
•Environmental group seeking injunction for ministers and cth. Allowing foreign
investor to create resort near Yeppoon against act. The ACF alleged the Ministerial
decision to proceed with the controversial Iwasaki Resort near Yeppoon was
contrary to the provisions of the Environment Protection (Impact of Proposals) Act
1975 (Cth) and the Reserve Bank should be prevented from approving foreign
exchange transactions supporting the company’s project.
•HELD: By a majority (3:1, Murphy J dissenting) that the ACF did not have standing as
they did not have anything more than a a mere intellectual or emotional concern.
No particular advantage or disadvantage would accrue to the ACF by taking
the legal action
•TO GET STANDING NEED… an interest, for present purposes, 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 a debt for costs, if his action fails.
[per Gibbs CJ at 530]
•A belief, however strongly felt that the law generally, or a particular law, should be
observed, or that conduct of a particular kind should be prevented, does not suffice
to give its possessor locus standi.
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•If that were not so, the rule requiring special interest would be meaningless. Any
plaintiff who feels strongly enough to bring an action could maintain it –
FLOODGATES
[per Gibbs CJ at 530]
Onus v Alcoa (1981) 146 CLR 27
•Development and approval of a mine which would destroy site. A desecration of
sacred sites would be a criminal offence under the Archaeological and Aboriginal
Relics Preservation Act 1972 (Vic). Indigenous = Archaeological = Minister for
Heritage. Minister said yeah sure you can. Custodians disagreed.
•The High Court held that the Act did not create private rights in the Aboriginal
people concerned, but that the plaintiffs did have a special interest in the matter,
beyond that of the public generally.
•This was because the relics were so significant to the plaintiffs in both a cultural and
spiritual sense that the interest was more than a mere intellectual or emotional
concern. Act was about aboriginal cultural heritage and they were descendants of
heritage and would have significant impact on them
There are two limbs to the special interest test, one positive and one negative:
• Positive aspect: the interest must be “special”, in the sense of being different to
that of the public at large.
• Negative aspect: the interest must not be “merely intellectual or emotional
concern”
Application to equitable remedies
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247.
•Application for injunction by respondent to restrain the applicant from
establishing a similar funeral benefit business. Creating competition and
going to impact our future income. Existing monopoly business and govt
allowed another to come in.
•HC held: The test for standing where a party seeks an equitable remedy to
restrain unlawful government action, is whether that party has a “special
interest” in the subject matter of the action.
The Benefit Fund had a special interest by virtue of the high probability of a severe
detriment to its business caused by the entry of the Land Council into the limited market of
funeral benefit funds servicing the Aboriginal community in NSW.
-JUST TESTING WHETHER THEY HAVE STANDING TO GO TO COURT
Applications of the special interest test - Environmental groups
Central Qld Speleological Society v Central Qld Cement [1989] 2 QdR 512
•The applicant sought to obtain an interim injunction to prevent the
destruction of one of the few remaining winter nests of the endangered
“Ghost Bat”. Ghost bats live in limestone caves and want to make this into
cement. Central Qld Cement wanted to mine and made application to do so.
Speleological challenged decision. Financial interest at stake by printing
tshirts with ghost bats on it and if mine the caves then there will be no more
ghost bats so cant sell them anymore.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Person aggrieved by a decision includes reference to person whose interests are adversely affected by decision. Three common situations where questions of standing arise in administrative law: where a person is claiming to have been adversely affected by unlawful administrative action. Justifications for standing: avoid frivolous, vexatious and hypothetical actions, need for a personal" stake in an outcome, floodgates / resources arguments, some illegality can be tolerated if no one with an interest will sue . Acf v commonwealth (1980) 146 clr 493 (cont) lead authority for special interest test. Environmental group seeking injunction for ministers and cth. Allowing foreign investor to create resort near yeppoon against act. The acf alleged the ministerial decision to proceed with the controversial iwasaki resort near yeppoon was contrary to the provisions of the environment protection (impact of proposals) act. No particular advantage or disadvantage would accrue to the acf by taking the legal action.
