1.3 JR Standing

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Course
JSB171
Professor
All Professors
Semester
Spring

Description
Standing Background—CL Judicial Review • Historically, standing different for common law (writ), equity (injunction) and statute • Now treated as same Old CL Crown had standing—prerogative writs of certiorari and prohibition granted only at the suit of the Crown, ← to ensure inferior courts didn’t encroach on the royal prerogative • Strangers— o Standing to persons aggrieved: Forster v Forster (1863)  Wrong legal test used → standing granted to seek certiorari or prohibition: R v Greater London Council; Ex parte Blackburn [1976] (release of an indecent film) o No standing where a ‘mere busybody’: R v Greater London Council; Ex parte Blackburn [1976] (so as not to waste the court’s time) Later Common law General Rule—Only with Fiat of AG: Cooney v Kuringai Municipal Council • Only the Attorney-General could bring an action to defend public rights, ex relatione (on relation of the facts by an individual): Cooney v Kuringai Municipal Council o Usually requires undertaking as to costs from interested party o Refusal of A-G’s consent to give name is not justiciable: Gouriet v Union of Post Office Workers [1978] (no JR) • AG may also bring matter Ex propia motu | ex officio (on their own motion) Exception: Boyce v Paddington Borough Council [1903] (built block of flats in churchyard—council worried that might in the future claim unrestricted right—council building awning over space—Boyce claiming injunction  action failed) 1 Limb—Private right also infringed Plaintiffs can sue without relying on the AG if public right has been infringed and a private right is also infringed • eg—car blocking street (public nuisance) & blocking person’s driveway (private right) 2 Limb—Suffered special damage = any substantial damage that is distinct from or goes beyond that to the general public and is not too remote • Same damage to a higher degree not sufficient: Anderson v Cth (importing of sugar—only damage was the increase in sugar price—would affect everyone) 2 Limb expanded—Has a special interest: Onus v Alcoa (1981) per Stephen J (Building aluminium smoulder—Act prohibiting interference with ‘relics’—Aboriginal community seeking to preserve  cultural significance of relics | long association with the land → special interestst standing || no private rights—legislation not enacted with that people specifically in mind → 1 limb not satisfied) Andrew Trotter LWB335 Administrative Law Standing under Statute A person who is aggrieved by decision/conduct can seek review: s20 JR | s5 AD(JR) (person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision) • ‘Aggrieved’ includes a person whose interests are adversely affected: s7(1)(a) JR | s3(4)(a)(i) ADJR o Report or recommendation → would be adversely affected if (not) implemented: s7(1)(b) JR | s3(4)(a)(ii) (making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report) o Conduct proposed to be engaged in for the making of a decision → would be adversely affected if (not) adopted: s3(4)(b) AD(JR) (reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct) Common Law Basis ← Common law issues involving standing are incorporated into the statute: Australian Institute of Marine and Power Engineers v Department of Transport (1986) per Gummow J (Application for statement of reasons—decision as to how many men were required on a ship to meet safety requirements  decision produced “danger and peril to the interests of the applicant that was clear and imminent rather than remote, indirect or fanciful” → interest of an intensity and degree well above that of an ordinary member of the public → standing granted) Originally—Special Damage: 2 Limb of Boyce v Paddington Borough Council [1903] (built block of flats in churchyard—council worried that might in the future claim unrestricted right—council building awning over space—Boyce claiming injunction  action failed) = any substantial damage that is distinct from or goes beyond that to the general public and is not too remote • Same damage to a higher degree not sufficient: Anderson v Cth (importing of sugar—only damage was the increase in sugar price—would affect everyone) Expanded—Special Interest: Onus v Alcoa (1981) per Stephen J (Building aluminium smoulder— Act prohibiting interference with ‘relics’—Aboriginal community seeking to preserve  cultural significance of relics | long association with the land → special interest → standing || no private rights st —legislation not enacted with that people specifically in mind → 1 limb not satisfied) Contrast with position under Statute • JR & ADJR acts more liberal than common law • Remedial & designed to make JR more accessible: Ogle v Strickland (1987) (decision to allow film to be released depicting Jesus as a petrol bowser attendant—review sought by priests  sufficient interest) o ‘person aggrieved’ not to be given a rigid or inflexible meaning but should derive its meaning and take its colour from the context in which it appears and the nature of the particular statute • BUT cases unclear about in what sense the statutory position is ‘more liberal’ so this remains ambiguous Andrew Trotter LWB335 Administrative Law Interpretation Merely interested people ↔ group involved in government programs & contributing to decisions • Need not be a pecuniary interest: ACF v Commonwealth (1980) • Courts must consider proximity and weight of interest, cannot be considered mechanically: Onus v Alcoa (1981) per Stephen J (cultural connection of aboriginal groups sufficient) • ‘Mere emotional concern’ not sufficient: ACF v Commonwealth (1980) (Japanese company permitted to build resort—environmental group seeking review—no direct private rights in legislation  mere concern not sufficient—not sufficient that the constitution of ACF stated aims to include environmental protection → no standing) o Although note the position has since become more liberal: ACF v Minister for Resources (1989) (granting of licence for woodchip export—review sought by ACF & local landowner—concerned with protection & conservation of environment  ACF had government financial support | pre-eminent body on issue | made submissions to inquiries etc → sufficient interest → standing); Involvement in Process • Indicia of an organisation with sufficient involvement to have standing: North Coast Environment Council v Minister for Resources (1994) per Sackville J (granting of interim licence to export woodchips while preparing environmental statement—environmental group seeking reasons for decision  had standing ← recognised by government | made submissions on forestry | umbrella organisation | on advisory committees | received government funding) (1) peak organisation in region | with activities related to the areas affected: also ACF v Minister for Resources (1989)  Size not critical—but trust is significant, in terms of membership, income, range of activities: Tasmanian Conservation Trust v Minister for Resources (1995) (2) recognised by Government as a significant and reputable environmental organisation, through the provision of regular financial grants: also ACF v Minister for Resources (1989) (granting of licence for woodchip export—review sought by ACF & local landowner—concerned with protection & conservation of environment  ACF had government financial support || pre-eminent body on issue, made submissions to inquiries etc → sufficient interest → standing); Tasmanian Conservation Trust Inc v Minister for Resources (1995) (licence to export woodchips  had standing ← received funding || conducted research, advice, lobbying | peak organisation | recognised by Tas Gov) (3) recognised by Government as a body that should represent environmental concerns on advisory committees: also Tasmanian Conservation Trust v Minister for Resources (1995)  Party to conference deciding on issues: US Tobacco Co v Minister For Consumer Affairs (1988) (decision to deny permission to import tobacco products—US Tobacco seeking review—AFCO wanted to be joined as was a party to conference deciding against those products  AFCO had sufficient interest → joined)  Level of government recognition | involvement in environmental issues: Save Bell Park Group v Kennedy [2002] (Decision to rezone park—environmental group seeking JR—difficult to imagine another group having standing | connection not merely intellectual or emotional  standing granted) (4) conducted or coordinated projects and conferences on matters of environmental concern for which it had received significant Commonwealth funding: also Tasmanian Conservation Trust Inc v Minister for Resources (1995) (licence to export woodchips— normal submission of statement etc foregone as earlier assessment sufficient—decision to forego challenged by environmental group  had standing ← conducted research, advice, lobbying | peak organisation | recognised by Tas gov | received funding) (5) makes submissions on issues: also ACF v Minister for Resources (1989) Andrew Trotter LWB335 Administrative Law Cultural / Spiritual / Religious concern • May be sufficient where o a necessary incident to the profession | representing a significant sector of the community: Ogle v Strickland (1987) (decision to allow film to be released depicting Jesus as a petrol bowser attendant—review sought by priests  sufficient interest)  Damage sustained as Christians may be sufficient to give standing without the additional factor of their vocation: Wilcox J only (Fisher & Lockhart JJ not deciding) o Special cultural connection exceeding a mere concern to have the law enforced: Onus v Alcoa (1981) (Building aluminium smoulder—Act prohibiting interference with ‘relics’— Aboriginal community seeking to preserve  cultural significance of relics | long association with the land → special interest → stanstng || no private rights—legislation not enacted with that people specifically in mind → 1 limb not satisfied) • Not sufficient if philosophical grievance does not extend beyond that which he or she has as an ordinary member of the public: Right to Life Association v Department of Human Services and Health (1995) (RTLA objecting to testing of morning after pill  only religious or philosophical concerns | goal of act was health) Commercial Interest • May be sufficient where— o accompanied by a social interest, even though the applicant stands to gain financially also: Re Boe and Criminal Justice Commission (1993) (CJC decisions on legal aid funding— prominent solicitor seeking review—no direct interest as did not affect his own licence  had interest in seeing his clients get more funding = affected economic interests | also social concerns → standing) o Particular economic interest arising from competition—where there is a limited market | addition of competition would have severe effect | policy reasons to encourage growth: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) (Local government starting funeral fund—exemption from Minister required under Funeral Funds Act—rival company objecting—only interest economic  special interest → standing || important for FFA to be enforced for public benefit)  Even though goals of applicant not consistent with purposes of the act: Bateman’s Bay v Aboriginal Community Benefit Fund (1998) (action should not fail for want of a competent plaintiff)  BUT note cannot be too far out of line: Right to Life Association v Department of Human Services and Health (1995) (RTLA objecting to testing of morning after pill  only religious or philosophical concerns | goal of act was health) • Pure desire to exclude competitors from the market to own commercial benefit not sufficient to give standing: California Theatres v Hoyts o Policy considerations lacking: Alphafarm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) (Drug company seeking to prevent rival from trialling equivalent  no standing —purely commercial); Rayjon Properties Pty Ltd v Chief Executive Queensland Department of Housing, Local Government and Planning [1995] (attempting to hinder economic rival) o Especially where there are policy reasons to the contrary: Chilcott v Medical Board of Qld (2002) (decision to register 2 Nigerian doctors—other doctor seeking JR—interest = loss of ability to apply for job at those practices | reputation  no standing ← insufficient interest | shortage of doctors) Construction of Statute Andrew Trotter LWB335 Administrative Law • Must consider the relevant statute—eg if decision wrt company: Allan v Transurban City Link (2001) (land being resumed for Melbourne link—owner seeking review—not considered by authority as not a ‘person’ aggrieved under the act—companies only  no standing) New Criteria Look to both interest and effect of allowing standing Standing to be granted so long as claim is not— • Abuse of process • Motivated by malice • Made by a busybody
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