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Published online by Cambridge University Press: 24 January 2025
“Generalizations about standing to sue are largely worthless as such.”
This paper will examine the principles governing standing to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and administrative review under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), with particular emphasis on standing problems in actions brought by individuals and organizations seeking to raise broad or non-traditional claims of public interest.
Even though the tests for standing under the ADJR Act and the AAT Act are formulated in different terms than the common law rules and were specifically drafted to broaden restrictive common law requirements, a review of decisions by the Federal Court and the Administrative Appeals Tribunal (AAT) shows that each has often limited itself to familiar common law concepts of standing, without clearly exploring whether such limits and the doctrines or policies which support them are appropriate to the form of review being exercised.
1 Douglas J, Assn of Data Processing Service Organizations v Camp (1969) 397 US 150, 151
2 Briefly, the common law requires a special interest in the subject matter. The ADJR gives standing to persons aggrieved. The AAT gives standing to persons whose interests are affect[ed and to organizations in light of their purposes. See text below pp 320, 326, 337 and footnotes therein.
3 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64.
4 Australian Law Reform Commission Report No 27: Standing in Public Interest Litigation (1985).
5 Ibid para 20.
6 Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257; Tooheys supra n 3; Re Control Investments Pty Ltd (No 1) (1981) 3 ALD 74.
7 Ibid 268, 270.
8 The main features of this test are summarized by the ALRC report paras 125 and 126 at pp 65-69.
9 The ACF case supra n 6, 268.
10 Ibid 210.
11 Ibid 210 per Gibbs J; 277 per Stephen J; 283 per Mason J.
12 Ibid 261, 289.
13 Ibid277.It is well recognized in the US that non-traditional interests (“aesthetic, conservational, and recreational, as well as economic” Sierra Club v Morton (1972) 405 US 727, 788); or extremely slight injury (US v Scrap (1973) 412 US 669: possible loss of recreational opportunities in public outdoor area);Flast v Cohen (1968) 392 US 83 (portion of taxes used for allegedly unconstitutional purpose);Baker v Carr (1962) 369 US 186, 204 (a fraction of a vote)) can be the basis for standing to bring a lawsuit where the actual purpose and effect is to litigate broader claims of public interest or social policy. It is clear that an organisation can have standing as a representative of its members who are injured, or who have a certain interest, though the organisation itself may suffer no injury;Scrap; Sierra Club. It is also clear that standing can exist in a particular plaintiff, whether an individual or organisation, to seek redress of harm which is identical to that of any or all members of the general public: “standing is not to be denied merely because many people suffer the same injury.”US v Scrap (1973) 412 US 669, 687.
14 ACF case supran 6, 271; ALRC paras 125-126.
15 (1981) 36 ALR 425.
16 Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).
17 Supra n 15, 432 per Gibbs J.
18 Ibid 433; see text below p 331-332; ALRC para 128.
19 Ibid 437.
20 Alcoa, as the landowner, could totally exclude plaintiffs from their sacred sites even if the court decided to prohibit destruction of relics.Ibid 432; see text below p 333-334.
21 [1983] 1 NSWLR 419.
22 [1983] 2 Qd. R. 72.
23 (1982) 42 ALR 51.
24 Supra n 22.
25 Supra n 22.
26 Supra n 23.
27 Supra n 23.
† The most recent expression of views by the High Court on standing is Davis v Commonwealth (1986) 68 ALR 18. In that case, a group of Aboriginals sought a declaration that certain sections of the Australian Bicentennial Authority Act 1980 (Cth) were invalid. The Defendants moved to strike out certain parts of the claim, mainly those relating to standing.
The Plaintiff’s claimed standing on three grounds:
(1) Pecuniary interest in selling articles decorated with symbols subject to control by the ACT.
(2) Special cultural interest as Aboriginals under the standard established in Onus v Alcoa.
(3) Financial interest as taxpayers for whom the expenditure of public money on the Bicentennial
would “increase the burden of revenue collection”.
The matter was heard by Gibbs CJ, who applied the principles of the ACF case and Onus, through recognising that these cases were challenges to administrative action whereas Davis was a direct challenge to validity of a Commonwealth statute.
Standing on the first ground was clearly upheld as valid. As to the second ground, Gibbs CJ expressed difficulty “in accepting that the interest is other than emotional or intellectual”, (23) but also stated that “plaintiff’s argument cannot be dismissed as frivolous” and avoided expressing “any concluded view” at the preliminary stage. (24) This suggests that Onus may well be seen as a case limited closely to its facts rather than as a broadening of standing principles.
The most important aspect of the decision in Davis is the view expressed on taxpayer standing. Gibbs CJ referred first to Attorney-General (Vic); ex rei Black v Commonwealth (1981) 146 CLR 559, 588-90, as having left open the question of taxpayer standing in Australia, then reviewed developments in Canada, the UK and the US supporting taxpayer standing and concluded:
It would not be right for me on this application to decide whether the fact that the plaintiffs are taxpayers gives them standing to challenge the validity of the Act under which public moneys have been and will be disbursed. The question is arguable and that is enough.(25)
If the claim of standing as a taxpayer is pursued and ultimately accepted, this would, of course, create a much greater opportunity for plaintiffs who wish to challenge government action on non-traditional or public interest grounds.
28 ALRC Chapter 4.
29 ALRC paras 18-29; Hart, HM and Wechsler, H, The Federal Courts and the Federal System (eds PM Baker et al) (2nd ed 1973) 150-177Google Scholar; Gunther, G and , Dowling, Constitutional Law (8th ed 1970) 85-108.Google Scholar
30 One sense in which judicial standing requirements may be said to be constitutionally compelled and jurisdictional is the requirement under Chapter III, s 77 of the Australian Constitution of a “matter”. It is at least theoretically possible for a plaintiff to attempt to maintain an action whose subject is so remote from the plaintiff’s interests that it would not constitute a matter. Thus, a federal court would lack jurisdiction to hear such a case. Similarly, it is possible that Parliament could enact legislation which attempts to authorise such actions. Presumably, such legislation would be unconstitutional, and any action brought pursuant to such legislation would be beyond the court’s jurisdiction. In this sense, the requirement of a “matter” may impose an absolute minimum standing requirement which a court must enforce: the ACF case, (1980) 28 ALR 257, 286-287 per Mason J; ALRC paras 80-81. (Under the US Constitution, Article III, s 2 limits the judicial power of the federal courts to “cases” and “controversies”. This limit is analogous to the “matters” limit in the Australian Constitution but is probably more restrictive: the ACF case 286 per Mason J)
31 Ibid; ALRC paras 26-27.
32 ALRC paras 26-27;Flast v Cohe (1968) 392 US 83.
33 ALRC paras 253-254; Baker v Carr (1962) 369 US 186, 204.
34 Robinson v Western Australian Museum (1977) 138 CLR 283; ALRC paras 89, 125 and 210-12; Hart and Wechsler supra n 29 156.
35 ALRC paras 188-196; the ACF case,supra n 6, 292 per Murphy J.
36 Supra n 13
37 Ibid. The US cases involve fairly extensive discussion and disagreement about the appropriate jurisprudential and constitutional bases for their decisions. They more clearly relate their conclusions about standing to underlying principles about the nature of judicial power. They suggest that there is no limit inherent in the nature of judicial power in a system of separation of powers which requires that lawsuits be brought by a party which has a bona fide traditional legal interest. They also demonstrate that adequate adversary presentation of issues can be achieved between parties who lack traditionally recognized legal interests. Hart and Wechsler supra n 29, and supra n 13. This is not to suggest that the US cases are intended as a model in analysing standing. Indeed “there is a general belief in the US ... that the Supreme Court doesn't really understand the concept either.” Bronstein, “An American Perspective on ACF v Commonwealth and the Status of Environmental Law in Australia” (1982) 13 FLRev 76, 80.
38 “Because Australian courts have adhered to traditional assumptions as to the respective roles of private plaintiffs ... they have not often addressed the basic question whether a personal stake in the litigation is necessary at all for private plaintiffs. The judicial discussion of standing ... has been generally as to the nature of the personal stake required not as to whether a personal stake should be required at all.” ALRC para 209.
39 ALRC para 209.
40 DC Pearce, (ed), Australian Administrative Law Service 2091 ff; GA Flick, Federal Administrative Law (1983).
41 Note that the ALRC has recommended that s 13 be retained in its present form and that standing to seek reasons not be broadened in accordance with the general recommendations.
42 Tooheys Ltd v Minister for Business and Consumer Affairs, supra n 3 (on other grounds (1982) 42 ALR 260).
43 DC Pearce, supra n 40, 2104.
44 Supra n 3.
45 Ibid 290.
46 The ALRC confirms this characterisation to some extent in its brief cornments on the ADJR Act. Though it characterises the remarks in Tooheys case as a “liberal interpretation”, the report also points out that “The meaning given to 'person aggrieved' ... seems very close to the special interest test required ... under the general law.” ALRC para 142.
47 Tooheys case does at least touch upon significant procedural and analytical points which arise in determining standing challenges, including whether standing is to be determined as a preliminary matter solely on allegations or whether evidence must be taken and what standard of certainty that evidence must reach. See discussion p 331-332.
48 Indeed, the ACF case itself clearly recognized that courts interpreting statutory grants of standing have gireater leeway. It was on this basis that the ACF case distinguished earlier cases such as the National Trust of Aust v Aust T & G Mutual Life Assurance Society Ltd [1976] 1 VR 592 and the ACF case supra n 6, 280.
49 (1982) 42 ALR 491 (on other grounds (1984) 52 ALR 460).
50 See further discussion on this point below p 333.
51 (1981) 33 ALR 144.
52 Ibid 147.
53 (1983) 52 ALR 185.
54 Ibid 1910.
55 ALRC para 126.
56 Hawker supra n 53, 192.
57 Ibid.
58 Note ACT Health Authority v Berkeley Cleaning Group Pty Ltd (1985) 7 ALD 752. In that case, an action by a losing tenderer for a cleaning contract, the Court refused leave to amend to include the question whether the loser was a person who is aggrieved.
59 (1982) 43 ALR 535.
60 See further discussion below p 333-334.
61 (1982) 47 ALR 781.
62 (1983) 48 ALR 601.
63 (1981) 38 ALR 399.
64 (1981) 38 ALR 535.
65 Supra n 53.
66 Supra n 3, 79.
67 (1984) 53 ALR 658.
68 Supra n 67.
69 Supra n 51.
10 Supra n 15.
71 Ibid 431.
72 Supra n 22.
73 Supra n 22, 79.
74 ALRC para 128.
75 ALRC para 261.
76 ALRC para 262.
77 (1982) 42 ALR 283.
78 Ibid 287; Presumably, “jurisdictional” in this sense means within the scope of the judicial power granted by the ADJR Act. See text below p 335.
79 Ibid 288.
80 Supra n 3, 80.
81 Supra n 15, 433.
82 Supra n 59.
83 Supra n 49.
84 The ALRC touches on it only very briefly in paras 26-29 contrasting standing with justiciability and hypothetical questions.
85 ADJR Act s 12.
86 (1983) 51 ALR 792.
87 (1984) 54 ALR 653.
88 Ibid 665-666.
89 Supra n 6.
90 Supra n 3.
91 It is possible that Kirby J could have been referring to some special status for industrial organizations; see Murphy J in the ACF case. supra n 6, 290-291.
92 ABC. Supra n 87, 665.
93 There are, of course, other possible explanations for this pattern. It may be that public interest groups simply have not challenged the Federal Court to expand standing to permit nontraditional plaintiffs. Or it could be a conscious choice by the court to keep the scope of the definition of person aggrieved narrowly defined since an expansion of the meaning of this term to broaden standing to seek review would automatically expand the range of persons who could compel a statement of reasons, since both are based on the person aggrieved standard. See the ALRC discussion of the problem. ALRC para 269 and p 327-328 above.
94 Supra n 87.
95 Supra n 53.
†† One recent decision by the Full Court of the Federal Court suggests that this summary may not be entirely correct. In Ogle v Strickland (1986) 11 FCR 462 (reversed on appeal to Full Court, (1987) 71 FLR 41), an Anglican Priest and a Roman Catholic Priest challenged the registration of an imported film on the basis that it was blasphemous, a ground for exclusion under Reg 13 of the Customs (Cinematograph Films) Regs 1956 (Cth). The basis for standing was that:
the film had desecrated fundamental Christian beliefs and teaching and that ministers of religion had a special interest, and thus a greater interest than an ordinary member of the community, in preventing such a film being shown if it was unlawful under the relevant regulations to allow its importation. (471)
At first instance, Sheppard J dealt with the standing issue at some length and very much in the manner suggested in the preceding summary. First, concern was expressed about the stage at which standing must be determined and the standard of proof required:
I have given some consideration as to whether I should make a direction that a question as to the standing of the applicants to sue be tried separately but, on reflection, have decided not to take that course. In those circumstances it is important that I bear in mind that for the respondents to succeed they need to demonstrate that on no basis can it be held that ministers of religion have a sufficient interest to maintain that a film which they claim to be blasphemous should not have been approved and registered by the respondents. (471)
Sheppard J then expressed the clear view that standing decisions under the general law were appropriate in determining the scope of standing under the ADJR statutory test:
Although there needs to be a degree of caution exercised in applying to applications under the Act authorities decided under the general law, it would seem to me that the general law authorities are of relevance in the interpretation of the words, “a person aggrieved” in the Act, simply because the Act was intended to provide a more streamlined alternative for judicial review of administrative action in the Commonwealth field. If it had been intended to affect the long established approach of the courts to this problem, one would have expected appropriate language to indicate clearly that this was the legislature’s intention. There is, in my opinion, no such language used. Furthermore, the test propounded by the judges of this Court in the decisions earlier cited do not suggest that the position is very different from what it is under the general law. I should therefore regard the decisions of the High Court to which I have referred, and the English cases upon which they are based, as indicative of the approach to the problem which the Court should adopt. (470)
It was argued in an analogy to Onus that plaintiffs should have standing to prevent desecreation of sacred or spiritual values of which they were teachers. Sheppard J rejected this argument stressing the proprietary type interest shown by the Aboriginals in Onus Sheppard J concluded:
I have reached the clear conclusion that this case is not one in which the standing of the applicants to sue should be recognised. Notwithstanding their special position as ministers of religion, I do not think that they stand in any different position from countless other members of the community who, with varying degrees of commitment, profess the Christian faith. That circumstance, coupled with the absence of any threat to any proprietary or possessory interest, persuades me that there is no conclusion openother than that standing to sue should be denied.. (472)
On appeal to the Full Court, the decision was unanimously reversed. Fisher J, Lockhart J and Wilcox J all agreed that the spiritual concerns of the plaintiffs put them in a significantly different posiion from other members of the community (Fisher J 43, Lockhart J 52, 53, Wilcox J 59). Fisher and Lockhart J J based this conclusion on plaintiffs’ status as priests and teachers, whereas for Wilcox J their interest as Christians was sufficient.
All three judges were conscious that they were broadening the scope of standing under the ADJR and gave extensive consideration to tnany of the aspects of standing raised in this paper and in the ALRC report. They seemed to rely on decisions under the general law as a source of a broader standing rule than would ordinarily be available to persons aggrieved. Wilcox J expressed concern that the Federal Court not “lag behind any expansion of attitude which is occurring”. (55)
The “floodgates” argument was rejected, though some concern was expressed that expanded standing for actions under s5 would also expand the class of persons who could seek reasons under s13. (Lockhart J 49, 50).
One factor important to both Fisher and Lockhart J J was the possibility if standing were denied to these plaintiffs, that no one except the Attorney-General, could challenge the propriety of the government action. This is often the case with many public interest lawsuits, brought by parties who wish to raise non-traditional interests.
Ogle is a very important development in the law of locus standi under the ADJR. It will be interesting to see to what extent its suggestion of a wider scope for standing is recognised in the case of other plaintiffs seeking to assert non traditional or general public interests.
96 GA Flick, supra n 40; DC Pearce, Supra n 40; the Boilermakers' case (1957) 95 CLR 529.
97 Ibid.
98 Ibid.
99 There is, of course, the converse separation of powers issue - that the AAT may not encroach on judicial function, but that is not raised by the issues discussed in this paper.
100 Procedurally, the AAT itself decides if a person seeking standing is one whose interests are affected. If standing is permitted, the Tribunal's decision is conclusive (s 31). If the Tribunal denies standing, then that decision is appealable (s 44 (2)).
101 Supra n 6.
102 (1977) I ALO 67.
103 Supra n 3.
104 See discussions above p 331-332.
105 This criticism is perhaps unfair, given Brennan J's remark: “neither party has provided the assistance of reasoned argument or an analysis of relevant precedents drawn either from Australian or other common law jurisdictions”.
106 (1981) ALN Note 59.
107 S 22 (2) (a)(b) of Part XXII of the Schedule to the AAT Act 1975, prior to amendment in 1981.
108 (1978) I ALD 489.
109 (1981) 3 ALN Note 55.
110 (1980) 2 ALD 785.
111 (1979) 2 ALN Note 37.
112 (1978) 2 ALN Note I.
113 (1979) 2 ALN Note 71.
114 Re Ajamian supra n 111 Re Kiely supra n 112 Re Ang supra n 110.
115 Supra n 113.
116 Supra n 109.
117 (1984) 6 ALN Note 183.
118 Ibid.
119 (1981) 4 ALD 1.
120 (1980) 2 ALD 757.
121 (1982) 4 ALN Note 111.
122 (1981) 4 ALN Note 113.
123 (1984) 6 ALD 609.
124 (1979) 2 ALN Note 75.
125 Supra n 120.
126 Supra n 121.
127 Supra n 122.
128 Supa n 123.
129 Supra n 124.
130 Note that this case raises a remedies problem, since the AA T, even if it changed the valuation, could do nothing directly to change the lease terms.
132 (1983) 5 ALD 389.
133 See n 106 above and accompanying text.
134 (1978) 1 ALD 341.
135 Ibid 344-345.
136 (1981) 3 ALO 74.
137 Ibid 79.
138 Ibid 77-80.
139 Ibid 82.
140 Ibid 82.
141 Ibid 84-87.
142 Ibid 86.
143 Ibid 86.
144 The ACF case supra n 6; FIDO supra n 22; ALRC para 125. cf, Sinclair v Mining Warden at Maryborough [1975] 132 CLR 473.
145 Ibid 81-82.
146 Ibid 82.
147 Ibid 83.
148 Ibid 83.
149 “The criterion for standing under the AAT Act again.seems very close to the 'special interest' test applied by the High Court.” ALRC para 143.
150 It is, however, recognized by the ALRC and is part of the reason why the ALRC does not recommend special standing status for organisations: ALRC para 229-230.
151 (1980) 2 ALO 813.
152 52 (1983) 5 ALN Note 157.
153 (1986) 10 ALD 262.
154 Supra n 151.
155 Supra n 134.
156 Supra n 152.
157 Supra n 151.
158 Supra n 134.
159 Supra n 152.
160 Supra n 153.
161 Australian and New Zealand Federation of Animal Societies; Australian Conservation Foundation Inc; Project Jonah (Victoria); Greenpeace Australia Inc; Dolphin Freedom Campaign; Whale Rescue Centre; Animal Liberation Victoria Inc; and Lake Tyers Dolphin Protection Group. Reasons for order at 263.
162 Supra n 6.
163 Supra n 132.
164 Supra n 151.
165 Supra n 152.
166 Supra n 153. Reasons for order at 267.
167 Supra n 136.
168 Supra n 153. Reasons for order at 268.
169 This point was previously dealt with in Phillips (1978) ALO 341, though apparently that decision was not submitted to the Tribunal on the point. See discussion above p 344.
170 Supra n 153. Reasons for order at 273.
171 The ALRC recognizes that the AAT has given the “person whose interests are affected” standard much the same scope as the common law “special interest” test. Nonetheless, the ALRC regards the AAT as applying a “fairly generous” interpretation: ALRC para 143.
172 “The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.”Robinson (1977) 138 CLR 283; the ACF case supra n 6, 284; Tooheys case supra n 3, 79; ALRC para 225.
173 ALRC para 224.
174 ALRC para 222. Under the ALRC recommendations, a traditional personal stake would, of course, continue to be a sufficient basis for standing, but not a necessary one.
175 ALRC para 252.
176 ALRC para 259.
177 ALRC Appendix A, p 216.