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The Evolution and Reform of Standing in Australian Administrative Law

Published online by Cambridge University Press:  01 January 2025

Matthew Groves
Matthew Groves*
Affiliation:
Law Faculty, Monash University
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Abstract

The standing rule in administrative law requires parties to demonstrate that they have a special interest in the subject matter of the decision they wish to challenge in judicial review proceedings. This article examines the problems the special interest requirement has presented in judicial review, particularly to environmental groups, and how it has been liberalised in lower courts. The article then examines several possible reforms to standing and concludes that a standing rule should be retained but relaxed.

Type
Article
Information
Federal Law Review , Volume 44 , Issue 2 , June 2016 , pp. 167 - 199
Copyright
Copyright © 2016 The Australian National University

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References

1 Reasons and standing are closely linked in statutory judicial review because judicial review statutes typically grant a right to obtain reasons to those with standing. See, eg, Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13(1) (‘ADJR Act’), which enables people entitled to make a substantive application for review of a decision to seek reasons for that decision.

2 The key case was Boyce v Paddington Borough Council [1903] 1 Ch 109 (‘Boyce’).

3 (1980) 146 CLR 493 (‘ACF’).

4 This subtle circumvention of ACF can be traced to North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 (‘North Coast’), discussed in Part V.

5 (2014) 254 CLR 394 (‘Argos’).

6 ACF (1980) 146 CLR 493.

7 Douglas, Roger, ‘Use of Standing Rules 1980–2006’ (2006) 14 Australian Journal of Administrative Law 22, 23.Google Scholar

8 See, eg, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 599 [2]. Gleeson CJ and McHugh J stated that standing rules were ‘based upon considerations of public policy which the legislature would not lightly disregard’ but did not identify any such considerations.

9 Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 285, 294 [46] (Graham J).

10 In such cases, there is often no real controversy between the parties: Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372, 459 [253] (Hayne J).

11 This possibility has long concerned English courts. See, eg, Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses [1982] AC 617, 644 (Lord Diplock); AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, 951–2 [169]–[170] (Lord Reed); Walton v Scottish Ministers [2012] UKSC 44, [94] (Lord Reed).

12 The High Court has made clear this jurisdiction exists to control unlawful executive action. See Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), where it was held legislation preventing courts from issuing relief against jurisdictional error was beyond the legislative capacity of State parliaments. Gageler J has wondered if more underpins this principle: Gageler, Stephen, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92, 104–5.Google Scholar

13 The most obvious example is Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

14 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.

15 By reason of Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

16 (1975) 135 CLR 1.

17 Ibid 76, citing Baker v Carr 369 US 186, 204 (1962).

18 Ogle v Strickland (1987) 13 FCR 306.

19 Ibid 323. Murphy J accepted that public interest groups had made a useful contribution to public interest cases in the United States: ACF (1980) 146 CLR 493, 558.

20 This reasoning also provides the basis for Attorneys-General to intervene in public law proceedings. See, eg, ADJR Act s 18(1); Judiciary Act 1903 (Cth) s 78A. Similar rights exist at common law: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 400–2 (Hutley JA, Reynolds and Glass JJA). The Victorian Court of Appeal has held this right does not enable ministers to intervene where issues of public policy rather than public interest arise: Priest v West (2011) 35 VR 225, 234 [26].

21 Gouriet v Union of Postal Workers [1978] AC 435, 481 (Lord Diplock). The privileges of the Attorney-General would have been narrowed had the House of Lords not rejected attempts by Lord Denning MR to allow judicial review of the Attorney-General's refusal to grant a fiat: A-G ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629.

22 (1998) 194 CLR 247 (‘Bateman's Bay’).

23 Ibid 262 [37].

24 Ibid [38].

25 Ibid 262–3 [38]. That problem was noted in Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012) 194 [11.68]. See also Australian Law Reform Commission, Standing in Public Interest Litigation (Report No 27, 1985) 88–9.

26 Cabinet solidarity is a key element of responsible government in Australia: Lindell, Geoffrey, ‘Responsible Government’ in Finn, Paul (ed), Essays on Law and Government: Principles and Values (Lawbook, 1995) 75, 78–9.Google Scholar

27 These criticisms have now also been made in the UK. See, eg, Alec Samuels, ‘Abolish the Office of Attorney-General’ [2014] Public Law 609.

28 Such a change would be consistent with the suggestion of Kirby J that the modern growth of administrative law remedies occurred in times when the limits of ministerial responsibility became apparent: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 467 [93].

29 These historical developments were traced by Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 626–8 [88]–[100].

30 [1903] 1 Ch 109 (‘Boyce’). The criteria of Buckley LJ was endorsed by the House of Lords in London Passenger Transport Board v Moscrop [1942] AC 332, 342.

31 Boyce [1903] 1 Ch 109, 114.

32 (1980) 146 CLR 493.

33 Gibbs J considered this issue in detail and concluded the legislation governing the Bank's decision making processes created no private rights or public duties that were enforceable per se: ibid 520–5. That finding was one reason the ACF relied on standing rules.

34 Ibid 528.

35 Ibid 529 (Gibbs J), 540 (Stephen J), 552 (Mason J). Stephen J repeated that concern in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 41 (‘Onus’).

36 ACF (1980) 146 CLR 493, 540 (Stephen J), 552 (Mason J).

37 Ibid 513.

38 Ibid 527 (Gibbs J), 547 (Mason J).

39 Ibid 530. Mason J similarly remarked that that ‘a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi’: at 548. See also Stephen J: at 539.

40 Ibid 530. Mason J expressly agreed with this point: at 548.

41 Ibid 539 (Stephen J), 552 (Mason J).

42 Ibid 531–2.

43 Ibid 556–7.

44 Ibid 555.

45 Ibid 554.

46 Other doctrinal problems arising from the decision are explained in Fisher, Elizabeth and Kirk, Jeremy, ‘Still Standing: An Argument for Open Standing in Australia and England’ (1997) 71 Australian Law Journal 370.Google Scholar

47 ACF (1980) 146 CLR 493, 530.

48 (1981) 149 CLR 27 (‘Onus’).

49 Ibid. The claimants also argued that the likely interference with the relics breached obligations in the now repealed Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).

50 Gibbs CJ thought all members of the tribe had such an obligation: ibid 36.

51 Ibid 37.

52 Ibid 42.

53 Ibid.

54 Ibid 74. This echoed statements Brennan J made earlier in Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67. See below n 126.

55 Cane and McDonald describe this as the ‘interest-based grievance model of standing’ in which applicants may commence judicial review if ‘they personally have a legal right or an interest which has been adversely affected’: Cane, Peter and McDonald, Leighton, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2nd ed, 2012) 177.Google Scholar

56 (1998) 194 CLR 247, 264–7.

57 [1903] 1 Ch 109.

58 Bateman's Bay (1998) 194 CLR 247, 260–1 [33]–[34].

59 Ibid 264 [43].

60 Ibid 265 [46], quoting Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).

61 Bateman's Bay (1998) 194 CLR 247, 267 [50].

62 ADJR Act s 3(4)(a).

63 [1961] AC 617.

64 Ibid 634.

65 Ogle v Strickland (1987) 13 FCR 306, 314 (Lockhart J).

66 Ibid 320 (Wilcox J).

67 Bropho v Tickner (1993) 40 FCR 165, 174.

68 (1981) 54 FCR 421.

69 Ibid 437.

70 (1986) 13 FCR 124.

71 Ibid 132.

72 Ibid. This reasoning aligns with that in Canada, where federal judicial review is not codified but is subject to a standing requirement allowing actions by applicants who are ‘directly affected by the matter’: Federal Courts Act, RSC 1985, c F-7, s 18.1. Canadian courts have reasoned that this statutory requirement was intended to simplify federal judicial review claims but not to narrow standing rights. See, eg, Friends of the Island Inc v Canada (Minister of Public Works) [1993] 2 FC 229, [53]; Irving Shipbuilding Inc v Canada (Attorney General) [2010] 2 FCR 488, [29].

73 A similar trend was identified in Canadian law in Boughey, Janina, ‘The Relaxation of Representative Standing in Administrative Law: A Side-Effect of Charters of Rights?’ (2016) 49 University of British Columbia Law Review 47.Google Scholar

74 Environmental standing cases are examined in detail by Edgar, Andrew, ‘Standing For Environmental Groups: Protecting Public and Private Interests’ in Groves, Matthew (ed), Modern Australian Administrative Law (Cambridge University Press, 2014) 140–62.CrossRefGoogle Scholar

75 Aronson, Mark and Groves, Matthew, Judicial Review of Administrative Action (Thompson Reuters, 5th ed, 2013) 739.Google Scholar

76 See, eg, Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 Qd R 72.

77 See, eg, Australian Conservation Foundation Inc v South Australia (1989) 53 SASR 349. In that case the ACF failed to gain standing because the Court doubted its claimed activities were of a genuine commercial nature. The activities seemed inconsistent with ACF's non-profit status.

78 Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, 74. Davies J recognised the standing of the ACF but not of a landowner whose property adjoined the site where a challenged development was planned. The latter ruling was described as being held ‘somewhat surprisingly’ in North Coast (1994) 55 FCR 492, 510.

79 Crook, Stephen and Pakulski, Jan, ‘Shades of Green: Public Opinion on Environmental Issues in Australia’ (1995) 30 Australian Journal of Political Science 39, 43CrossRefGoogle Scholar. Those authors examined electoral information and found the concern of voters about environmental issues was 4% in the 1980s (when ACF was delivered) and 26% when Davies J delivered his decision.

80 (1994) 55 FCR 492.

81 Ibid 513–14.

82 See, eg, Environment East Gippsland Inc v VicForests (2010) 30 VR 1.

83 See, eg, National Trust of Australia (NT) v Minister for Lands (1997) 7 NTLR 20; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation (1997) 18 WAR 126; Tipler v Attorney-General (Vic) (1998) 104 LGERA 230; North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172 (14 June 2000); Save Bell Park Group v Kennedy [2002] QSC 174 (29 May 2002); Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102.

84 Right to Life Association (NSW) Inc v Secretary, Department of Health (1995) 56 FCR 50, 67; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation (1997) 18 WAR 126, 134.

85 A point made in Aronson and Groves, above n 75, 749.

86 See, eg, North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172 (14 June 2000) [20], where an environmental group made lengthy submissions comparing its activities with those of the group in North Coast. Chesterman J labelled that a ‘barren exercise’.

87 See, eg, Friends of Elliston — Environment and Conservation Inc v South Australia (2007) 96 SASR 246, 269–70; Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313, 333.

88 (2014) 254 CLR 394.

89 The decision was made under the Planning and Development Act 2007 (ACT) s 162.

90 Evidence led by the applicants that the proposed development would cause a reduction of 8–10% of their profits was not challenged in any significant way: Argos (2014) 254 CLR 394, 413 [57].

91 Argos Pty Ltd v Minister for Environment (2012) 7 ACTLR 15, 30 [53].

92 Ibid 30–5 [55]–[85].

93 Argos Pty Ltd v Minister for Environment (2013) 198 LGERA 187, 198 [46], 199 [49].

94 Ibid 195 [29]. The cases relied upon were Jewel Food Stores Pty Ltd v Minister for Environment, Land and Planning (1994) 85 LGERA 62 and Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85.

95 Gageler J dissented on this last issue. He held standing was established by evidence of the ‘significant adverse effect on the profitability’ the new supermarket would have on the first applicant: Argos (2014) 254 CLR 394, 423 [91].

96 Ibid 407 [33].

97 Ibid 409 [42].

98 Ibid 409 [43].

99 Ibid 411 [48].

100 Ibid 418–21 [80]–[86].

101 Ibid 418 [79].

102 Ibid 415–16 [66].

103 Ibid 416 [68].

104 Ibid 405 [28], citing Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421.

105 Ibid 409–10 [44]–[45]. The relevant cases were: Right to Life Association (NSW) Inc v Secretary, Department of Health (1995) 56 FCR 50; Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85.

106 Ibid 408 [35].

107 Ibid 414 [60]. The same seems true in common law judicial review. See, eg, Acquista Investments Pty Ltd v Urban Renewal Authority [2014] SASC 206 (24 December 2014) [240]–[243].

108 Ibid 414 [61].

109 Ibid.

110 Ibid 408 [37], 408 [39].

111 Ibid 408–9 [40].

112 Ibid 423 [91].

113 Ibid.

114 Ibid 414 [62].

115 Ibid 414 [61] (citations omitted).

116 Aronson and Groves, above n 75, 405–17.

117 (2014) 228 FCR 35 (‘Animals’).

118 Virtually all the association's members lived in Germany or Switzerland: ibid 69 [112].

119 The association's constitution explained its strident opposition to the mistreatment of animals, particularly those destined for slaughter, and that its activities extended beyond Europe: ibid 68–9 [110].

120 Ibid 69–70 [111]–[113].

121 Animals’ Angels e V v Secretary, Department of Agriculture [2014] FCA 398, [123].

122 Animals (2014) 228 FCR 35, 71 [119].

123 Ibid 72 [121].

124 Ibid 71–2 [119].

125 SirBrennan, Gerard, ‘The Purpose and Scope of Judicial Review’ in Taggart, Michael (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (Oxford University Press, 1986) 18, 24.Google Scholar

126 (1977) 1 ALD 67.

127 Ibid 70. This passage was cited with approval in Allan v Transurban City Link Ltd (2001) 208 CLR 167, 174 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ), 187–8 (Kirby J).

128 Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250, 259 (Davies J).

129 [2012] UKSC 44 (17 October 2012).

130 Ibid [92].

131 The analysis in this article of standing is not intended to suggest that doctrine is the only way to achieve a more liberal approach to challenging public decisions. Another means, which is beyond the scope of this article, is to subject public officials to a duty to consult those affected by decisions. Such a change is examined in Edgar, Andrew, ‘Procedural Fairness for Decisions Affecting the Public Generally: A Radical Step Towards Public Consultation?’ (2014) 33 University of Tasmania Law Review 56.Google Scholar

132 (1998) 194 CLR 247.

133 Ibid 263.

134 A provision to this effect survived constitutional challenge in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.

135 Edgar, ‘Standing For Environmental Groups’, above n 74, 158–9.

136 Harlow, Carol, ‘Public Law and Popular Justice’ (2002) 65 Modern Law Review 1CrossRefGoogle Scholar. Harlow's argument was mainly directed at group proceedings, which she saw as the main source of such problematic cases, but open standing would enable individuals to commence the type of proceedings that so troubled Harlow.

137 Cane, Peter, ‘Open Standing and the Role of Courts in a Democratic Society’ (1999) 20 Singapore Law Review 23, 44Google Scholar. A similar point was made for constitutional standing in Campbell, Enid, ‘Intervention in Constitutional Cases’ (1998) 9 Public Law Review 255, 262.Google Scholar

138 See, eg, Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985); Australian Law Reform Commission, Beyond the Door-Keeper: Standing to Sue for Public Remedies, Report No 78 (1996).

139 Lockwood Security Products Pty Ltd v Australian Lock Co Pty Ltd (2005) 216 ALR 652, [61] (Goldberg J), citing ACF (1980) 146 CLR 493, 526. This decision was reversed on other grounds by the Full Court of the Federal Court: Assa Abloy Australia Pty Ltd v Australian Lock Co Pty Ltd (2005) 147 FCR 126.

140 Administrative Review Council, above n 25, 150.

141 Ibid.

142 (1997) 18 WAR 126.

143 Ibid 134.

144 Ibid.

145 Ibid.

146 [2000] QSC 172 (14 June 2000).

147 Ibid [12].

148 Save the Ridge Inc v ACT (2004) 182 FLR 155, 160–1 [18].

149 This possibility is supported by the findings of Douglas, whose study of almost three decades of standing cases found that not one was dismissed as an abuse of process. He suggested that motivation in judicial review claims is easy to suspect but hard to prove: Douglas, above n 7, 33–4.

150 Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138, 143 [6] (Wheeler JA).

151 South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management [No 1] (1998) 154 ALR 405, 409 [20]. That case was about the pleadings of the environmental group (which were struck out by a lower court) but Kirby J noted the respondent also queried the group's standing.

152 A small change would not contradict the High Court's ruling that intermediate courts should not adopt significant new principles that fly ‘in the face of long-established authority and seriously considered dicta of a majority’ of the High Court: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151 [134].

153 The Minister may seek remedies as of right: EPBC Act s 475(1)(a). This essentially continues the privileged standing of ministers at common law. Individuals may seek remedies if they are an ‘interested person’: at s 475(1)(b). This clause replicates the special interest requirement by different words.

154 Ibid s 475(6)(a).

155 Ibid s 475(6)(b).

156 Ibid s 475(7)(a).

157 Ibid ss 475(7)(b)–(c).

158 Ibid s 487(2).

159 Ibid s 487(3).

160 Allan Hawke, Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999: Final Report (October 2009) ch 15. Recommendations to extend this novel statutory standing regime to merits review bodies have not been adopted by successive federal governments.

161 This greatly compresses the careful analysis in Edgar, Andrew, ‘Extended Standing — Enhanced Accountability? Judicial Review of Commonwealth Environmental Decisions’ (2011) 39 Federal Law Review 435.CrossRefGoogle Scholar

162 (2011) 192 FCR 1.

163 Ibid 5 [23].

164 Ibid 5 [24].

165 Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (Cth).

166 See, eg, Lenore Taylor, ‘Coalition to Restrict Green Groups’ Right to Challenge After Carmichael Setback’, Guardian (Australia) (online), 18 August 2015 <https://www.theguardian.com/environment/2015/aug/18/coalition-to-remove-green-groups-right-to-challenge-after-carmichael-setback>. In that article, the federal Attorney-General is quoted as complaining about ‘vigilante’ environmental groups that are ‘sabotaging development’.

167 The Federal Court took the unusual step of issuing a public statement to explain these and other aspects of the settlement: Federal Court of Australia, ‘Statement re NSD33/2015 Mackay Conservation Group v Minister for Environment’ (Media Release, 20 August 2015) <http://www.fedcourt.gov.au/news-and-events/20-august-2015>. This media release appeared designed to correct the misconception that the Court had overturned the Minister's decision when in fact it was set aside by consent and no substantive decision was made by the Court.

168 Senate Environment and Communications Legislation Committee, Parliament of Australia, Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 Provisions Report (2015) 4.2.

169 Ibid.

170 Ibid 27.

171 Ibid 30–1.

172 Ibid 32, citing the submission of Murray Wilcox.

173 Ibid 32–4. These possibilities were mentioned in many submissions.

174 A point highlighted by the dissenting members, who complained that public hearings promised by government members were abandoned without explanation: ibid 36–7.

175 Some of these complaints are recorded in Taylor, above n 166.

176 The common theme in such actions is a ‘strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective’: JrDunlap, Charles J, ‘Lawfare Today: A Perspective’ (2008) 3 Yale Journal of International Affairs 146, 146Google Scholar. See also Waters, Christopher, ‘Beyond Lawfare: Juridical Oversight of Western Militaries’ (2009) 46 Alberta Law Review 885.CrossRefGoogle Scholar

177 A related question is the extent to which fundamental human rights instruments should extend to actions of a state that occur entirely outside the jurisdiction: Ekins, Richard, ‘Judicial Power and Military Action’ (2016) 132 Law Quarterly Review 206.Google Scholar

178 Administrative Appeals Tribunal Act 1975 (Cth) s 27(2) (‘AAT Act’).

179 This part of the AAT Act test overcomes the common law rule that forming or incorporating a group does not provide the group or its members with standing to challenge a decision: ACF (1980) 146 CLR 493, 531 (Gibbs CJ), 539 (Stephen J).

180 AAT Act s 27(3).

181 As was attempted in Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) (2015) 303 FLR 49. In that case, a public interest group sought to challenge a decision that was made a short time before the group was incorporated. The ACT Court of Appeal held that the group lacked standing because it could not demonstrate any interest beyond that of the general public and could not show how it (or its members) were affected by exercise of the power in question: at 84 [275], 85 [278].

182 The apparent lack of cases where this issue has been a problem arguably shows that the standing test in the AAT Act operates without difficulty.

183 Administrative Review Council, above n 25.

184 Ibid 151 [8.22].

185 The ACT version of this statute is the Administrative Decisions (Judicial Review) Act 1989 (ACT). It was based closely on the federal ADJR Act, as was the Judicial Review Act 1991 (Qld) and the Judicial Review Act 2000 (Tas).

186 Administrative Decisions (Judicial Review) Act 1989 (ACT) s 4A(5).

187 Ibid s 4A(2).

188 Ibid s 4A(3)(a).

189 Ibid s 4A(3)(b). These cumulative requirements are expressed in the negative.

190 Ibid s 4A(3).

191 Cases on the standing provisions of the EPBC Act have held a ‘significant’ impact is ‘important, notable, or of consequence’: Booth v Bosworth (2001) 114 FCR 39, 65. An impact is therefore not significant simply because it may affect a species or the environment: Krajniw v Brisbane Council (No 2) [2011] FCA 563 (30 May 2011), [10].

192 [1982] AC 617 (‘Fleet Street Casuals’).

193 Ibid 644.

194 See, eg, R v Secretary of State for Foreign and Commonwealth Affairs, Ex Parte World Development Movement Ltd [1995] 1 WLR 386, 392 (holding that a public interest group had standing to challenge a decision of the British government to provide aid to Malaysia to build a dam, which the group claimed would badly damage the local environment).

195 Harlow, Carol and Rawlings, Richard, Law and Administration (Cambridge University Press, 3rd ed, 2009) 697.CrossRefGoogle Scholar

196 Harlow, above n 136, 5–6.

197 By the Damages (Asbestos-Related Conditions) (Scotland) Act 2009 (Scot) asp 4. The Act essentially reversed decisions which held that certain asymptomatic medical conditions did not increase susceptibility to asbestos related illnesses. Those findings meant people with asymptomatic conditions had no illness or injury that could support a damages claim.

198 The human rights claim argued the legislation was incompatible with rights granted under the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) and thus beyond the power granted to the Scottish Parliament by the Scotland Act 1998 (UK). The judicial review claim argued the legislation was an irrational exercise of power.

199 The legislation was retrospective and interfered with the rights of the insurance companies but was held valid because it was a proportionate exercise of power that struck a reasonable balance between the rights of the companies and those affected by asbestos related conditions: AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, 908–10 [34]–[41] (Lord Hope), 927 [96] (Lord Mance), 936–40 [124]–[134] (Lord Reed) (‘AXA’).

200 This element of the Supreme Court's reasoning was distinct from the notion of ‘rights’ in the sense protected by the Human Rights Act 1998 (UK). The extent to which that and comparable human rights instruments may have influenced standing rules is examined in Boughey, above n 73, 63–8.

201 The same is clearly true of Australian judicial review: Aronson and Groves, above n 75, 412–17.

202 AXA [2012] 1 AC 868, 951 [169].

203 Ibid.

204 Ibid.

205 Lord Phillips gave a condensed explanation of that rule of law approach in R (Cart) v Upper Tribunal [2012] 1 AC 663, [89].

206 AXA [2012] 1 AC 868, 952 [170].

207 Ibid.

208 Ibid 952 [171].

209 [2012] UKSC 44 (‘Walton’).

210 He did so in a personal capacity in some instances and as a member of a group in others.

211 Roads (Scotland) Act 1984 (UK) sch 2 cls 2–3.

212 Walton [2012] UKSC 44, [94].

213 Ibid (emphasis added).

214 Ibid [152].

215 Ibid [153].

216 This reasoning echoes that of Davies J in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, 74. It also reflects a line of English cases which have accepted that representative groups may be better placed to challenge decisions than affected individuals. See, eg, longstanding English authority R v Inspectorate of Pollution; ex parte Greenpeace (No 2) [1994] 4 All ER 329, [82] (the Court held that Greenpeace had standing to challenge a decision about the transportation of radioactive waste because it was more informed and better organized than local residents affected by the decision).

217 Walton [2012] UKSC 44, [153] (Lord Hope).

218 Ibid.

219 This essentially extends the ‘enforcement model’ of standing suggested by Cane and McDonald, under which applicants have standing if ‘they are an appropriate person to enforce administrative law norms’. Courts decide that issue by considering the ‘identity and qualifications’ of applicants: Cane and McDonald, above n 55, 177. Lord Hope essentially extended similar reasoning to groups.

220 Though the Supreme Court did not go so far as to endorse the emerging American concept of ‘existence value standing’, in which the very existence of resources or some form of social good can support standing. When applied to environmental litigation, this approach essentially creates open standing because virtually any concerned citizen can claim standing on the basis that he or she is concerned about the continued existence of whatever is sought to be protected. Any requirement of affectation or injury as part of standing is removed. See Note, ‘Existence-Value Standing’ (2016) 129 Harvard Law Review 775.

221 [2014] EWCA Civ 1087 (31 July 2014).

222 Ibid [82], [84]–[86], [89]. The Court of Appeal also held the applicant was not a victim within the meaning of the Human Rights Act 1998 (UK).

223 Ibid [88].

224 Ibid [83].

225 Ibid.

226 Harlow and Rawlings, above n 195.