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Lecture 4

Week 4 - Standing

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STANDING ISSUE: Does [Applicant] have standing for judicial review? STATE: Because the case here concerns public rights the proper plaintiff would be the AG. However [even though the AG won’t proceed with action/other reason] it may still be possible for [applicant] to pursue a relator action. Under the common law and as a general rule [applicant] as a private individual will not have locus standi unless either of the exceptions in Boyce apply: 1. If a private right is interfered with at the same time; or 2. If [applicant] has suffered special damage particular to themselves over and above the ordinary members of the public. Here second limb that may apply. Under [s5 AD(JR) Act (Cth) OR s20 JR Act (Qld)] a person will have standing if they are “a person aggrieved”, or “whose interests are adversely affected by the decision: [s3(4) AD(JR) Act (Cth) / s5 JR Act (Qld)]. The operation of these statutory requirements has now been incorporated into the common law: AIMPE v Dept Transport (Gummow J) CF. Ogle v Strickland. 1. DOES [APPLICANT] HAVE SPECIAL INTEREST/DAMAGE? STATE: Whilst special interest doesn’t require pecuniary loss; it cannot simply be emotional concern or belief; it must be a special interest in the subject matter beyond a mere interest in upholding the law: ACF v Cth (Gibbs CJ); Onus v Alcoa. N.B. No need for the applicant to be the only person to suffer damage: ACF v Cth (Gibbs CJ). Here [applicant] is a body which, according to it’s [objectives/constitution etc.] is concerned primarily with _________________; and although these objectives align with the current issues, something more is required: ACF v Cth; North Coast. In North Coast, Sackville J outlined five principles inherent in the law to determine standing; they are not determinative but only assist, and standing will depend on the individual facts of each case: ACF v Cth (Mason J @ 547). The test cannot be made mechanically – the courts need to consider proximity, and weight of interest: Onus v Alcoa (Stephens J). In addition to these there is a recent liberal approach that focuses on the effect of a test on other persons to avoid an abuse of process or inconvenience: North Qld CC v Qld Parks; Save Bell v Kennedy. A) Genuine Concern (Peak Body) [Applicants] must have more than a mere intellectual or emotional concern but must involve some genuinely held convictions: ACF v Cth; North Coast. IF genuine conviction: Here [applicant] is a peak [body/organisation] in the area of __________. This was relevant in both North Coast and ACF v Minister for Resources. In ACF court held that applicants were recognised by the public as representing them in environmental issues and that the Australian community now expects such bodies to concern themselves with conservation. Similarly here [applicant] is [list factors that show genuine interest such as size, media attention etc]. Therefore would likely have more than a mere emotional concern and would be considered to have a genuine conviction: ACF v Cth; North Coast. IF merely intellectual or emotional interest: Here, it is unlikely that [applicant] will have a genuine concern because [applicants] are neither the peak body in the area nor able to demonstrate an expectation on them to be involved in those issues: ACF v Cth; North Coast. Here [apply facts] and therefore likely [applicants] interest is merely emotional or intellectual. IF individual with slim connection to issue/decision: [Applicant’s] circumstances in the present case are similar to the facts in: IF adjoining land owner: Day v Pinglen. In that case the HC held that an adjoining land owner, whose view of Sydney Harbour was affected by a development, had standing above that of the general public. Similarly here _______. EXAMPLE ACF v The Cth An environmental group wanted to review a decision relating to the building of a resort by a Japanese coy. Group asked for an injunction to stop construction, argued that the decision to support the project was invalid b/c no environmental impact statement was commissioned; The Australian Conservation Foundation was a group of 6,000 members, and its constitution was concerned with protecting the environment; The relevant legislation did not confer any direct or private rights on the applicant to seek compliance . HELD: 3-1 majority that there was no ‘special interest’ and so no standing; Per Gibb CJ: While doesn’t have to be pecuniary damage, can’t simply be a mere emotional concern; Must show that applicant will be advantaged if decision overturned or detrimentally affected if decision stands; The argument about the constitution of the ACF isn’t sufficient – doesn’t distinguish anyone else from having an interest in the issue; Not simply about being interested in upholding the law – otherwise everyone would have a ‘special interest’. EXAMPLE Onus v Alcoa Building of an aluminium smelter on land that had relics from the Aboriginal people in Victoria. The A-G (Vic) refused to allow a relator action. There was legislation which made it an offence for anyone to interfere with relics Onus sought an injunction to prevent Alcoa from proceeding, as the land in question had ‘relics’ on it, arguing: 1. That there was a private law right associated with the passing of the Act, as it was for the benefit of the Aboriginal people as a special class (were descendants of original owners of land, used relics to teach children) 2. That there was a public law right, upon which they had a ‘special interest’ HELD: The applicants had a ‘special interest’ within the meaning of the limb; This was because the people were custodians of the relics, and as descendents of the people who occupied the area. The relics had an important cultural and spiritual heritage for the people; More than a mere emotional concern, the building of the smelter would have a huge personal effect. Cf. ACF (whose concern over the environment didn’t differentiate themselves from the rest of society. EXAMPLE North Coast Licence given to Sawmillers to export woodchips for 3 months, because they were going to prepare an environmental statement, with the Minister allowing them to maintain an interim licence. NCEC appealed to gain the reasons for giving the licence, even though it was about to expire, because it would be good to allow the Council to appeal against the decision. HELD: (Sackville J) that North Coast Environmental Council did have standing. Was an umbrella organisation that had the rights to prove it had an interest, as it was the peak environmental group on the north coast; related for better conservation.  Peak environmental body for northern NSW, and part of umbrella group that was the peak group in NSW  Was recognised by the Commonwelath, through financial grants  Recognised by NSW government that it should represent environmental concerns  Conducted/coordinated projects and conferences of environmental concern, with significant government funding  Made submissions of forestry B) Government Funding Emphasis has been placed on the fact that a body had received financial grants from the government as this reflected acceptance from the government that the body was an advocate in the area: North Coast; Tas CT v Minister Resources; ACF v Minister Resources. Here, [applicant] has/does receive between _________ per annum. This grant represents ____% of their total funding. IF less than $20,000 and 10% of income: Similar figures were considered in North Qld CC v Qld Parks; in that case Chesterman J rejected the argument that the funding was insufficient to establish the body as a peak group; as funding merely indicates that the organisation is serious and responsible. Accordingly it is arguable that the terms of the grant instead should be considered, Here ___________. (probably need more facts) IF grant substantial: These figures are substantial; in North Qld CC v Qld Parks; in that case Chesterman J held that whilst a low level of funding didn’t prevent peak status but went to establish that the body was serious and responsible; Here it is clear that the body is entrusted by the government and based on the reasoning in case like North Coast, Tas CT v Minister and North Qld CC v Qld Parks here there is a strong argument that the body has standing as it is government endorsed through financial assistance as a representative in the area. EXAMPLE Tas CT v Minister Gunns applied to the Minister for Resources for a licence to export woodchips. The Minister required that an Environmental Impact Statement be lodged to the Department for the Environment. The Minister however said that what was assessed earlier was sufficient, and therefore this process was not required to be followed; ‘In-principle approval’ was challenged by the Tasmanian Conservation Trust. HELD: Tasmanian Conservation Trusts was a ‘person aggrieved’ because:  The environmental organisation is a peak environmental organisation  Activities include research, advice, lobbying and consultations – particularly in regard to wood chipping  Has been recognised by the Commonwealth as a peak environmental body  Represents environmental interests to the Tasmanian government  Receives government funding for research and advisory activities of trust  Trust has made submissions and engaged in activities that show its conservationist attitudes  The size of an organisation not critical – but still the trust is significant, in terms of membership, income and range of activities EXAMPLE ACF v Minister Resources Woodchips were only able to be exported where a licence was granted under regulations; The Minister for Resources granted such a licence to the second Respondent, to export 850,000 tonnes of woodchips from certain forests, which are part of the National Estate; The applicant was the ACF, and second applicant was a landowner near the logging area – who said they would lose their enjoyment and livelihood if this was to happen. They sought review, that the Minister had not followed all the requirements. HELD: (Davies J) Standing, because of:  the particular forests from which the forests would come from;  Was not merely a local issue  Was more concerned with the protection and conservation of the natural environment  The ACF was not merely a busybody, but had government financial support, and was the pre-eminent body upon the issue, including making submissions to inquiries etc  Public opinion had changed in 10 years since ACF v Cth and now expected the ACF to act in the public interest  ACF had particularly taken this issue on, by making enquiries, submissions, protesting etc EXAMPLE North Qld CC v Qld Parks Action was in relation to a licence to build a harbour complex on the land; The Council has no private rights in question – sought to enforce the matter to achieve the values which the Council was formed to protect. The Nth Qld Conservation Council – peak environmental body; Receives funding; Involved in a number of environmental issues; Active in environmental issues on Magnetic island. HELD: (Chesterman J) NQCC did have standing; That the test in Onus is too general. Test should be standing = the claim is not an abuse of process and not motivated by malice, not a busybody or crank and the action will not involve difficulty to a citizen- meaning inconvenience. Test looks at both interest and effect of allowing standing; The test was supported in Bateman’s Bay v Aboriginal Community Benefit fund, where there was a liberalising tendency. Even where Sackville J’s test in North Coast Council was to be supported, that would still mean that there was sufficient ‘special interest’ – many similarities between the organisation there and here. C) Government Endorsement Where the person has contributed to procedures and made decisions, and is not merely a group of interested people but has strong roles in government programs, they will have standing in terms of the decisions that are made: ACF v Minister Resources. Here, [applicant] has _________ [e.g. assisted/advised minister/research/lobby/consulted etc. for the government]. This will enforce the view that the government recognises the [applicant] as a representative body on this area: North Coast. IF advised minister: North Coast (Facts above) IF party to a conference: US Tobacco (Facts below) IF made submissions to enquiries: ACF v Minister Resources (Facts above) EXAMPLE US Tobacco v Minister for Consumer Affairs US Tobacco wanted to judicially review a decision to prevent them from importing smokeless tobacco products; The Australian Federation of Consumer Organisations (AFCO) wanted to be joined as a further respondent to proceedings. HELD: The AFCO should be joined as respondents to the action; That ‘interests’ within the ADJR Act had a broad term – going beyond legal, proprietary, financial or other tangible interests or interests necessarily peculiar to the person. AFCO was a party to the conference which decided against importing the smoking products, was able to give evidence and challenge material and views of the AFCO. D) Proximity & Previous Involvement Here, [applicant] can show a [long history/close proximity etc.] to the issues; this was held to be a relevant factor by Gibbs in Onus v Alcoa; and in North Coast and ACF v Minister Resources strategy plans and a long history of involvement with submissions were relevant to the finding of standing. Therefore here, ____________. IF submission made to committee or minister etc. Here [applicant] has made submissions in the part on issues in the area; although this does show concern; they do not on their own demonstrate standing: ACF v Cth. However when viewed in the context and activities of [applicant] as a whole it is likely that these submissions do support standing being granted: North Coast. E) Economic Loss / Financial Interest: In regards to standing when the [applicant] faces economic loss; there was originally a narrow approach adopted in which the policy and purpose of the legislation was crucial to a determination: Alphapharm; Right to Life. However the court in Bateman’
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