1991] Standing: the Role and Evolution ofthe Test 83 STANDING: …classic.austlii.edu.au/au/journals/FedLawRw/1991/3.pdf · 2018-10-27 · the remedies ofprohibition, certiorari,

1991] Standing: the Role and Evolution of the Test

STANDING: THE ROLE AND EVOLUTION OF THE TEST

MARGARET ALLARS *

83

JUDICIAL REVIEW AT GENERAL LAW AND UNDER THE ADJRACT

A IntroductionProcedure is at the heart of administrative law, just as it is at the heart of

public administration. The development of administrative law is rootedhistorically in questions of the availability of remedies, and the relatedquestion of standing. Delivering the Second Reading Speech for theAdministrative Decisions (Judicial Review) Bill 1977 in the House ofRepresentatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisionsis in a most unsatisfactory state. A great deal has been written about theshortcomings of the present procedures and it is not, I think, necessary for meto elaborate on these deficiencies in the present context. The law in this area isclearly in need of reform - indeed, it could be said to be medieval - andsimplification and to be put into statutory form. What the present Bill seeks todo is to establish a single simple form of proceeding in the Federal Court ofAustralia for judicial review of Commonwealth administrative actions as analternative to the present cumbersome and technical procedures for review byway of prerogative writ, or the present actions for a declaration or injunction. l

This statement raises the question to what extent the AdministrativeDecisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") offers a procedure"alternative" to that of judicial review at general law. It can be saidimmediately that the ADJR Act is not an alternative in the sense that nonjudicial dispute resolution mechanisms are alternatives, operating beside, or asadjuncts to the traditional court system. Jurisdiction to hear applications underthe ADJR Act was conferred upon a new court, the Federal Court of Australia~nd the application for an order of review under the ADJR Act provided the:entral and dominating procedure for obtaining judicial review at the federallevel.2

With ten years' experience of the operation of the Act, it is therefore worth:onsidering whether the procedure it has introduced is alternative in the sense)f different from that operating in judicial review at general law.3 Theprocedural aspects of the ADJR Act might be expected to be found in its

SenIor Lecturer, Faculty of Law, The University of Sydney. This is a reVIsed versionof a paper on standing and remedies presented at the Conference "Ten Years of theFederal Administrative Decisions (judicial ReView) Act" in September 1990,containing an expanded discussion of the topic of standing and omitting the analysisof remedies except insofar as 1l bears upon the topic of standing.H Reps Deb 1977, Vol HI 05, 1394 (28 April 1977).Federal Court of Australia Act 1976 (Cth); ADJR Act s 8."General law" means judicial review in the inherent supervisory jurisdictions of theState and Territory Supreme Courts, in the High Court's original jurisdiction under theCommonwealth Constitution s 75(v) and in the Federal Court under the Judicary Act1903 (Cth) s 39B.

84 Federal Law Review [VOLUME 20

provisions relating to standing and remedies, whilst the "substantive" aspectsare found in the grounds of review codified in ss 5, 6 and 7 of the Act. But itwill be argued that the ADJR Act re-casts the relationship between standingand remedies, and the relationship between standing and justiciability. TheADJR Act gives statutory expression to a standing test as a restriction uponaccess to judicial review. The assumption that such a restriction is necessaryitself requires justification. But the present purpose is to assess how the Actmay provide an opportunity for judicial development of a test appropriate tothe public law context, a test which has a character no less substantive than thatof the grounds of review.

B JurisdictionsWhilst central and dominating, ADJR Act review did not become the sole

avenue for judicial review of federal administrative action. The ADJR Act didnot, and could not constitutionally, take away the High Court's originaljurisdiction under s 75(v) of the Commonwealth Constitution to grant"prohibition, mandamus and injunctions against an officer of theCommonwealth". This jurisdiction of the High CoW"t, which constitutionallydefines justiciability chiefly in terms of the availability of remedies, isenlarged by the High Court's "pendent" jurisdiction to grant other remedies andsupervise other administrators, where jurisdiction is properly invoked withinthe parameters of the constitutional definition. The Federal Court'sjurisdiction under the ADJR Act displaced the jurisdiction of State courts toreview federal administrative action.4 The potential for State courts to exercisesuch jurisdiction was restored by the cross-vesting scheme, but as a jurisdictionwhich would rarely be exercised, ADJR Act jurisdiction being a "specialfederal matter" which would normally be transferred to the Federal Court.s

From 1983 the jurisdiction of the Federal Court over federal administratorswas extended by the enactment of s 39B of the Judiciary Act 1903 (Cth) whichconferred upon the Federal Court a jurisdiction which is, subject to minorqualifications,6 parallel to that of the High Court, to grant the remedies ofmandamus, prohibition and injunction against an officer of the Commonwealth.This jurisdiction relieved the High Coun of the burden of matters commencedwithin its original jurisdiction, which could be remitted to the Federal Court.7

The extension of Federal Court jurisdiction also largely addressed a problem ofjurisdictional lacunae arising from the removal from State courts ofjurisdiction over matters which did not fall within the ADJR Act test of ajusticiable decision.8 The jurisdiction under s 39B of the Judiciary Act,including the range of remedies available, may in a particular case be expandedby the accrued jurisdiction (similar to the pendent jurisdiction of the High

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ADJR Act ss 8, 9.Jurisdiction of Couns (Cross-vesting) Act 1987 (Cth) s 6(1).See Judiciary Act 1903 (Cth) s 39B(2).Ibid s 44(1); State Banle of New South Wales v Commonwealth Savings Ban.k ofAustralia (1984) 154 CLR 579, 583.lbe exclusion of State jurisdiction, under ss 8 and 9 of the ADJR Act, left somelacunae due to the drafting of s 9(1)(d), and is now affected by the Jurisdiction ofCouns (Cross-vesting) Act 1987 (Cth): see Clamback and Hennessy Pty LId vCommon.wealth (1985) 62 ALR 233, 238; M Allars, Introduction to AustralianAdministrative Law (1990) paras 2.94-2.95, 2.116, 3.27-3.30.

1991] Standing: the Role and Evolution of the Test 85

Court), the associated jurisdiction under s 32 of the Federal Court of AustraliaAct 1976 (Cth) or the cross-vested jurisdiction.9

Despite the creation of a new federal court with a specialist jurisdic~ion

including administrative law and a procedure statute intended to facilitategaining judicial review, s 39B of the Judiciary Act re-introduced a jurisdictionbased upon the remedies at general law which Mr Ellicott QC had dismissed as"medieval". This was a jurisdiction incorporating the technical questionsrelating to availability of remedies and the two-step procedure by order nisi andorder absolute, unlike the ADJR Act procedure by way of application for anorder of review. There was no longer a single form of proceeding for judicialreview. Further, beside the rules relating to availability of remedies there wasemerging at general law a test of justiciability. The test of justiciabilitydiffered from the test under the ADJR Act. The classic difficulty of invokingthe wrong form of action, associated with the prerogative writs, re-emerged in amore limited fashion with the danger of invoking the wrong jurisdiction in theFederal Court. An objection to competency could succeed where theadministrative action challenged was not justiciable under the jurisdictioninvoked.I 0 It is not surprising that in 1989 the Administrative Review Councilrecommended some rationalisation of jurisdictional sources for judicial reviewin the Federal Court by development of an all-purpose definition ofjusticiability within the ADJR ACt. 11

The problem of choice of jurisdictional source and hence originating process,for the purpose of satisfying the accompanying test of justiciability, was forpractical purposes solved at a procedural level by amendment of the FederalCourt Rules in 1988. The amended rules require that the jurisdiction under s39B of the Judiciary Act be invoked in the application for an order of reviewunder the ADJR Act, so that separate actions under the ADJR Act and under s39B of the Judiciary Act in respect of the same administrative action are nolonger possible.12 An applicant can no longer make the mistake of commencingproceedings invoking the wrong jurisdiction and failing to amend before it istoo late. But especially after amendment of the rules of court, Federal Courtjudges were confident in all but rare cases that they had jurisdiction under somesource to review the administrative action. That confidence was diminished in1990 by the High Court decision in Australian Broadcasting Tribunal v Bond,l3which narrowed the ambit of the ADJR Act test of justiciability, casting newimportance upon the test of justiciability at general law in review under s 398.The latter test brought with it the question of availability of remedies.

~ Remedies and JusticiabilityIn the ADJR Act, the general law remedies are replaced by provision for a

'ange of orders to be made under ss 15 and 16. The Federal Court has reasonedhat it is unlikely to have been Parliament's intention not to confer upon itlnder 5S 15 and 16 of the ADJR Act powers at least as extensive as those of a

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See generally, M Allars, supra n 8, paras 2.65-2.69, 2.94-2.95.See eg Mahoney v Dillon (1987) 71 ALR 395.Administrative Review Council, Review of the Administrative Decisions (JudicialReview) ACI: The Ambit of lhe Act, Repon No 32 (1989).Federal Court Rules 0 54A r 3(2), Fonn 56.(1990) 170 CLR 321.


superior court exercising supervisory jurisdiction in judicial review to grantthe remedies of prohibition, certiorari, mandamus, injunction and declaration. 14

No distinction is made in the drafting of the ADJR Act between the orderswhich might operate in a similar fashion to the prerogative remedies ofprohibition, certioriari and mandamus, and the orders which operate in a similarfashion to injunctions and declarations. Apparently no significance is to beattached to the fact of the exclusively public law origins of the prerogativeremedies compared with the private law origins of injunctions and declarations.

The test for the grant of an interlocutory injunction in judicial review atgeneral law and the test for the grant of a stay under s 15 of the ADJR Act havetheir origins in private law.l s But in both contexts the tests have been appliedwith a sensitivity to the different factors which come into play in a public lawcontext. 16 The legislative purpose of the drafting of s 16, in which other ordersare set out, is to allow flexibility in the framing of orders so that issuesproperly raised in proceedings may be disposed of in a way which achievesjustice between the parties and avoids unnecessary re-litigation between theparties of those issues.17 This flexibility is given explicit statutory expressionin s 16(1)(a) of the ADJR Act~ which provides that the Federal Court mayquash or set aside a decision or part of a decision "with effect from the date ofthe order or from such earlier or later date as the Court specifies". Moreover~

s 16(1)(d) empowers the court to make an order directing any of the parties todo or refrain from doing an act, where "necessary to do justice between theparties". These paragraphs provide remedial powers which are potentiallybroader than those available at general law. Although in their constructionguidance has been sought in existing principles governing the availability ofremedies, the very statutory expression of remedial options appears to offergreater scope for the moulding of relief. IS

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Minister for Immigration and Ethnic Affairs y Conyngham (1986) 68 ALR 441, 449.The general law test of whether there is a "serious question" to be tried, followed by adetennination of the balance of convenience, is stated by the High Court inAUSlralilln Coarse Grain Pool Pry Lld y Barley Maruling Board of Queensland (1982)46 ALR 398, TableLand Peanuts Ply Ltd v Peanul Marketing Board (1984) 52 ALR651 per Brennan 1, A y Hayden (No 1) (1984) 56 ALR 73, and CasllefNJine TooheysLtd v South Auslralill (1986) 161 CLR 148. It is followed by the Federal Court inrelation to the ADJR Act s 15 in Dallikavak y Minister for Immigration and EthnicAfffairs (1985) 61 ALR 471 per Northrop and Pincus JI, Ienkinson J contra.For examples in review at general law see Castlemaine Tooheys Ltd y Stale of SouthAustralia (1986) 161 CLR 148, 153-4; Australian Coarse Grain Pool Pty Ltd v BarleyMarketing Board of Queensland (1982) 46 ALR 398; Murphy y Lush (1986) 65 ALR651. For examples in relation to the ADJR Act s 15 see Collins y Minisler forImmigration and Ethnic Affairs (No 2) (1982) 5 ALD 32, 33; Gaillard y Minister forImmigration and Ethnic Affairs (1983) 5 ALN N25 per Lockhart J; Gonaseelan y

Minister for Immigration and Ethnic Affairs (1985) 7 ALN N168 per Morling J;DaLIikayak y Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471, 481per Jenkinson J; Videto y Minister for Immigration and Ethnic Affairs (1985) 8 ALNN237 per Toohey J; Perkins y Cuthill (1981) 34 ALR 669 per Keely J; AboriginalDeyelopfMnt Commission y RalJc.on Agricultural Co Pty Ltd (1987) 74 ALR 505,509-10; Morton y Radford (1985) 61 ALR 414, 416.Park Oh Ho y Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, 644;Minister for Immigration, Local Goyernment and Ethnic Affairs v Tayeli (1990) 94ALR 177.See Wallmaster Alcoa Pty Ltd y Bulton (1986) 70 ALR 330; Minister forImmigration, Local Government, and Ethnic Affairs v Taveli (1990) 94 ALR 177,

1991] Standing: the Role and Evolution of the Tesl 87

The test of justiciability under the ADJR Act is, like the range of remediesavailable under the Act, defined explicitly in the ACt. 19 Important differencesbetween the statutory definition of justiciability in the ADJR Act and the testof justiciability at general law are outlined in Part 2 of this article, in "thecontext of the relationship between standing and justiciability. At general lawjusticiability is a question which is solved by incremental development of thecommon law, and which traditionally has been inextricably linked with theavailability of remedies, only having recently emerged fully as a concept. Underthe ADJR Act justiciability is without doubt an issue distinct from the issue ofremedies. The provision for remedies under the ADJR Act is not to be construedso as to extend the jurisdiction of the Federal Court.20

2 ROLE OF STANDING

A Relationship to RemediesIn public law, rules relating to the availability of remedies have always been

roughly distinct from the body of norms relating to the ground of review injudicial review. This division is emphasised by the fact that a remedy mayalways be refused in the discretion of the court, despite the plaintiffs havingestablished illegal action on the part of the administrator. At general lawstanding tests varied depending upon the remedy sought and were embedded inthe different rules relating to the availability of remedies)1 Some elements ofthe test of availability, such as the requirement that rights be affected,overlapped with the test of standing.22 Although the liberalisation of the testfor seeking injunctions and declarations23 has provided a focus for liberalisationof standing tests for the prerogative remedies, there remains a close, sometimesinextricable, connection between standing and the availability of a remedy.24

The evolution of administrative law has been largely a process of shaking offthe limitations flowing from the dominance of the prerogative writs. It wasintended that the ADJR Act should complete this process, as Mr Ellicott QCsaid when introducing the Bill. The concern to remove difficulties withremedies at general law, albeit directed chiefly at the prerogative remedies,might logically be understood to encompass a concern for flexibility andliberalisation of standing tests associated with those remedies and withinjunctions and declarations. Certainly, in fixing upon one standing test, the

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184 per Davies J and 200 per French J; DorMn v Riordan (1989) 19 ALD 185, rev'd(1990) 21 ALD 255; Minister for Immigration and Ethnic Affairs v Conyngham (thePlatters case) (1986) 68 ALR 441, 448.ADJR Act s 3(1),(2),(3),(5), Schedule 1.See the discussion by Wilcox J in Conyngham v Minister for Immigration and EthnicAffairs (1986) 68 ALR 423, 439 of the reason why relief under s 16(1)(c) of theADIR Act was not available in Pearce v Button (1986) 65 ALR 83. Cf now Turner vOwen (1990) 96 ALR 119.See the discussion by Gummow J in Au.stralian Institute of Marine and PowerEngineers v Secretary, Department of Transport (1986) 71 ALR 73, 80.R v Electricity Commissioners; ex parte London Electricty Joint Committee Co(1920) Ltd [1924] 1 KB 171.See cases discussed in Part 3 of this article.Ex parle HeleM Valley/Boya Associalion (Inc); Stale Planning Commission andBeggs (1989) 2 WAR 422 at 434 per Ipp J.


law under the ADJR Act is "single and simple", a state sought not only by MrEllicott QC, but also by the Law Reform Commission in its later report onstanding in public interest litigation.25 But the distinct provision in the ADJRAct for a standing test was premised upon the out-mooed assumption made atgeneral law that the appropriate representative of the public interest in judicialreview is the Attorney-General. Anyone else must persuade the courL that he orshe is a "person aggrieved".

The structure of the ADJR Act suggests that standing is linked with the testof justiciability and with the grounds of review rather than with remedies. Eachof ss 5, 6 and 7 of the Act, where the grounds of review are codified, commenceswith the definition of the entitlement to make an application for an order ofreview. The legal right to sue is conferred upon "a person who is aggrieved", by a"decision to which this Act applies" or by "conduct" engaged in or proposed tobe engaged in for the purpose of making such a decision, or by a failure to makesuch a decision in specified circumstances. "Person aggrieved" is defined in s 3(4)of the Act as including persons whose interests would be adversely affected bythe relevant decision, conduct or failure.26 The test of justiciability contained inthe expressions "decision to which this Act applies" and "conduct engaged in forthe purpose of making a decision" are further defined in s 3 of the Act.27 From ss5, 6 and 7, standing and justiciability of the decision appear as conditions whichmust in every case be satisfied along with one or more grounds of review, beforethe Court will exercise its discretion to grant an order of review. The draftingof the ADJR Act does not assert a direct nexus between standing and remedies.The question of standing, like justiciability (if either of these are contestedissues), arises at an earlier stage in the reasoning process from which theconclusion may be reached that an order of review should be made. If such issuesare resolved in favour of the applicant, and in addition the Court is satisfiedthat a ground of review is established, only then does the exercise of thediscretionary power to make orders under ss 15 and 16 of the Act arise forconsideration.

B The ADJR Act TestMr Ellicott QC, as a judge of the Federal Court later construed the

expression "person aggrieved" in the ADJR Act, in a decision which has beenconsistently cited in later standing cases under the ADJR Act, Tooheys Ltd vMinister for Business and Consumer Affairs:28

[I]t at least covers a person who can show a grievance which will be suffered asa result of the decision complained of beyond that which he or she has as anordinary member of the public.29

25 Law Reform Commission, Standing in Public Interest Litigation, Repon No 27(1985), but subject to some exceptions, ibid para 269.

26 Application to be made a pany to an application may be made by "a personinterested", under s 12 of the ADJR Act. The Coun has a discretion to grant theapplication for joinder: ADJR Act s 12(2); Accident Insurance Mututal Ltd " Trade

. Practices Commission (1983) 51 ALR 792; United Slales Tobacco Co " Minister forConsUfMr Affairs (1988) 82 ALR 509, rev'd 83 ALR 79.

27 ADJR Act s 3(1),(2),(3),(5), Schedule 1.28 (1981) 36 ALR 64.29 Ibid, 79.


Interests not amounting to legal rights, indirect effects upon legal rights orfuture legal rights could satisfy the test. However, the leap had not been takenin the ADJR Act of jettisoning a standing test altogether. The Act preserv~ astanding test which would in some cases exclude access to review in the FederalCourt. In the years immediately following Toohey's case, Federal Court judgeson the whole refrained from developing the more liberal standing test whichmight have been appropriate in the context of a procedure statute theyacknowledged to be remedial legislation. In many cases in construing theexpression "person aggrieved" Federal Court judges tended to refer initially tothe test of standing to seek an injunction or declaration at general law, set outin Australian Conservation Foundation Inc v Commonwealth.3o Signs since thelate 1980s of the development of a construction of "person aggrieved" whichpasses beyond the test of standing at general law are examined in Part 3 of thisarticle.

C A Preliminary Issue?When standing is a contested issue in actions testing the constitutional

validity of legislation, or judicial review of decisions of administrators orinferior courts, at general law the court has a discretion as to the stage of the~ction at which it will dispose of the objection to standing)! If the standingissue is dealt with at the threshold and the plaintiff loses, the court never hasthe opportunity to consider the substantive issues, or "merits" of the action. Itmay be difficult to determine the question of standing divorced from themerits, with inadequate consideration of the legal duties involved and,oarticularly in applications for interlocutory relief, little material before the:ourt even for the purposes of determining whether the applicant's interestslave been affected beyond those of other members of the public. In Onus v4lcoa of Australia Ltd32 the question was disposed of as a preliminary matter)fl the agreed basis that the facts pleaded in the statement of claim would not belugmented if the action went to trial. But Brennan J noted, when thisJreliminary matter was appealed to the High Court, that the facts pleaded were'explained and expanded" before the trial judge and that if the action came torial the trial judge might have to consider the matter afresh upon the evidencehen before the court.33 In more recent cases at general law judges increasingly~xpress a preference for dealing with the question of standing at the finallearing alongside the substantive issues.34

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(1980) 146 CLR 493 (ACF case). See eg the decision of Fisher and Lockhan 1J inOgle v Strickland (1987) 71 ALR 41. See also K M Mack, "Standing to Sue underFederal Administrative Law" (1986) 16 Fed L Rev 319.Robin.son v Western Australian Museum (1977) 138 CLR 283, 302-3; Onus v Alcoaof Australia Ltd (1981) 149 CLR 27, 38, 57, 76.(1981) 149 CLR 27.Ibid 76.R v Inland Revenue Commissioners; ex parte National Federation of Self-Employedand Small Businesses Ltd [1982] AC 617, 645, 649, 656, 727 (Fleet Street Casualscase); Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 38,57,76; Administrative& Clerical Officers Association v Conn (1988) 52 NTR 57, 63, 71. Cf Cent ra lQueensland Speleological Sociely lncorp v Central Queensland Cement Ply Ltd (No 1)(1989) 2 Qd R 512 (per Thomas J, contra Derrington and de Jersey II). See generallyM Allars, supra n 8, para 6.158.

90 Federal Law Revielv [VOLUME 20

Of the ADJR Act cases where standing is a contested issue, the number ofcases where it is dealt with at the final hearing, or on appeal, alongside:substantive issues exceeds those where it is dealt with as a preliminary'matter. 35 Often where standing is dealt with at a preliminary hearing the:hearing may be concerned with other matters which require a preliminary'decision. Standing may be dealt with in the context of an urgent interlocutory'application,36 or as a result of lodgement by the respondent of a notice ofobjection to competency which also raises the issue of justiciability,37 or in the:context of an application for a declaration that a statement of reasons should be',furnished,38 or an application for an extension of time for lodging aniapplication for an order of review.39

In Toohey's case the issue of standing was raised by way of an objection tO l

competency, which was heard as a preliminary matter by agreement of the:parties. On the basis of his construction of the expression "person aggrieved""Ellicott J was able to conclude that the applicant had standing as a preliminary'point. If the test of standing had been narrower, requiring the applicant tOIdemonstrate that it would have a legal right to a refund of customs dutY'(rather than a serious claim against the importer),40 Ellicott J would have beenreluctant to decide the question of standing as a preliminary matter:

The question whether an applicant is a person aggrieved is one of mixed law andlfact and in many cases would best be determined at a final hearing when all thefacts are before the court and the court has the benefit of a full argument on the:mauer.41

Justice Ellicott regarded this as such a case but, given his construction of"person aggrieved", was able to conclude that standing was established in the:

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See eg Fowell v Ioannou (1982) 43 ALR 415, 45 ALR 491 (the issue being decided In

favour of the applicant at first instance; adversely to him on appeal to the FullFederal Coun; and the High Coun appeal, Ioannou v Fowell (1984) 156 CLR 328,being confined to the issue of justiciability); Australian Broadcasting CommissionStaff Association v BOfln.~r (1984) 54 ALR 653; Vangedal-Nielsen v Smith(Commission.er of Paten.ls) (1980) 33 ALR 144.Eg Canberra LabOUT Club Ltd v Hodgman (1982) 47 ALR 781.Eg Tooheys LId v Minister for BusifUSS and Consunutr Affairs (1981) 36 ALR 64;Ralkon Agricullural Co Pty Lid v Aboriginal Development Commission (1982) 43ALR 535.ADJR Act s 13(4A)(b).ADJR Act ss 11(1)(c), (3)-(5). Eg, Ricegrowers Co-operative Mills Lid v Bannermanand Trade Practices Commission (1981) 38 ALR 535; Australian Inslilute of Marineand Power Engineers v Secretary, Departmenl of Transporl (1986) 71 ALR 73; RalkonAgricullural Co Pty Lid v Aboriginal Development Commission (1982) 43 ALR 535.In Toohey's case the applicant was affected indirectly by the challenged detenninationof the Minister's delegate, who had refused to apply an item of the Second Scheduleof the Customs Tariff. The company which had imponed the goods on behalf of theapplicant had paid the duty and been reimbursed by the applicant. Had the delegatemade a favourable detennination, refunding duty to the importing company, the latterwould probably have had an obligation to refund duty to the applicant. Thus, in theevent of a favourable determination, the applicant would have had "a serious and nota frivolous claim" against the imponing company for the refund to be passed on toit. Since successful judicial review culminating in an order setting aside thedetermination, followed by a refund, would trigger such a claim, the applicant was a"person aggrieved".(1981) 36 ALR 64, 79.


absence of further evidence. In Doyle v Chief of General Slaff,42 in apreliminary hearing the Court disposed of three procedural matters: anapplication for an extension of time, the standing issue and the argument ~hat

the Court should in its discretion decline jurisdiction under s 1O(2)(b)(ii) ofthe ADJR Act because adequate provision was made in the statute for review bythe Governor-General in Council. Justice Fisher held that the applicant hadstanding and, as there had not been undue delay, granted the extension of time.Justice Fisher endorsed the preference of Ellicott J expressed in Toohey's casefor dealing with standing at a final hearing when all facts are before the court.But unlike Ellicott J, Fisher J did not regard standing as having been finallyjecided in this hearing of preliminary matters, an objection to competency notlaving been pressed. The question of standing could be dealt with finally at aater hearing when the substantive issues were dealt with.

A recognition that standing may only be determined properly in the context)f all the evidence, and possibly in the context of examination of the legalssues, suggests that standing involves matters as "substantive" as those arising.vith regard to grounds of review. If it is also recognised that some private lawloctrines of a similar nature are treated as part of the cause of action at privateaw, the ground is prepared for developing a fresh approach to the role of~tanding, free from its old connection with remedies.

) A Distinctive Issue?

'1) Title to sue in private lawDespite the expressed preference of most judges for not dealing with

;tanding as a preliminary issue, either at general law or in review under the\DJR Act, a conceptual distinctiveness of the standing issue in constitutional!nd administrative law cases has commonly been asserted. A comparison isnade with cases concerning the infringement of a right in contract or tort. Inhese private law cases, it is said, the entitlement to sue ttmerges" with the:xistence of the cause of action.43 In public law on the other hand, there is aluestion of standing which is said to be distinct from other public law issues,vhich are concerned with the existence of a public wrong. Standing is alsoiistinctive in the sense that it is concerned with the very different issue of whos entitled to right the public wrong. This appears to be a procedural issue in:ontrast with the more substantive issues arising in relation to the existence ofle cause of action.This comparison has been criticised as a false one.44 This is not the place for a

ull critique of the similarities and differences in the general nature of private~w actions and public law actions, a topic which has perplexed administrativelwyers seeking to rationalise the operation of 0 53 of the Supreme Court~ules in the United Kingdom.4S However, it is relevant to present purposes to

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(1982) 42 ALR 283.Law Refonn Commission. supra n 2S, paras 33. 34; P Cane. "The Function ofStanding Rules in Administrative Law" (1980) PL 303. But cf P Cane. A nInlroduclion 10 Administrative Law (1986) 156-7 where Cane queries the reason forthe distinctiveness of the issue in public law actions. but seeks to explain it.P P Craig. Administrative Law (2nd ed 1989) 368-70.See eg. J Beatson. '''Public' and 'Private' in English Administrative Law" (1987) t03LQR 34; P Cane. ·'Public Law and Private Law: A Study of the Analysis of and Use of


explore briefly the falseness of the comparison in order to assess the validity oflthe assumption of the distinctiveness of the issue of standing in constitutional I

and administrative law in Australia.Some doctrines belonging to private law do appear to be distinct issues aboutl

the entitlement to bring an action to enforce a legal duty. According to the:common law doctrine of privity of contract, a person who is not a party to alcontract cannot sue in respect of its breach.46 The entitlement to sue for trespass:to propeny depends upon possession by the plaintiff.47 Similarly, to sue inlprivate nuisance the plaintiff must have a right to possession of the land.48 In l

the case of public nuisance the plaintiff must have suffered some particular or'special loss over and above the ordinary inconvenience or annoyance suffered by"other members of the public.49 The entitlement to enforce the obligations of at'trustee is restricted to the beneficiaries of the trust.50 The entitlement to,'challenge a decision of company directors is restricted to the company as alcorporate entity .51 Each of these common law principles is subject tOIqualifications, some of which are common law exceptions to the operation ofthe principles, others statutory provisions reforming the common law.52 Itappears to be a matter of semantic preference to describe the sets of norms 'I

governing access to the court in these areas as concerned with "title to sue""rather than with "standing".53

The private law nonns restricting title to sue exclude persons from access tO I

the court even though their interests are affected, say by breach of contract, Of'

of trust, or breach of directors' duties. What prevents these norms from being;identified and treated as distinctive in contrast with other norms which are:concerned with the definition of the existence of the cause of action? TOI

maintain the argument that private law actions generally differ from publiclaw actions in this respect, there must be an independent factor which explains I

why the norms concerned with access to the court in private law actions define,the existence of the cause of action and are therefore substantive, but the norms:concerned with access to the court in public law actions are not concerned with I

the establishment of the ground of review and are therefore procedural.

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52

53

a Legal Concept" In Eekelaar and J Bell (eds), Oxford Essays in Jurisprudence (3rdseries 1987).Dunlop PneUI7IIJlic Tyres Co Lui v Selfridge & Co Lid [1915] AC 847, 853.J G Aeming, The Law of TorlS (7th ed 1987) 40-41.Ibid 385-6.Ibid 381-5.R P Meagher & W M C Gummow, Jacobs' Law of Trusls in Auslralia (5th ed 1986)paras 2203, 2303-7.H A J Ford, Principles of Company Law (1990) Ch 17.In relation to the torts of private and public nuisance, see Environmental Planningand Assessment Act 1979 (NSW) ss 98, 123; W L Morison and C Sappideen, Torts:Commentary and Materials (7th ed 1989) 758-64. In relation to actions by personswhose interests are affected directly or indirectly by decisions of trustees, see TrustsAct 1973 (Qld) s 8(1), Trustees Act 1962 (WA) s 94(1). In addition, the court may onthe application of the Attorney-General, in appropriate cases appoint a receiver to acharitable trust: R P Meagher and W M C Gummow supra n 50, para 2305. Inrelation to personal actions against company directors, see H A J Ford, supra n 51.H Luntz, A D Hambly & R A Hayes, Torts: Cases and Commentary (2nd ed 1985)887-91; H A J Ford, supra n 51 para 1438.


(2) Origins of the test ofstanding to seek an injunctionThe appropriateness of characterisation of norms restricting access to the

court as substantive or procedural can be approached by examining the originsof the lest of standing to seek an injunction or declaration at general law.Attention was directed in the 19th century to the use of these equitableremedies to protect proprietary interests.54 The test of standing to seek theremedies in a public law action owes much to the law governing a particularprivate law cause of action - public nuisance. An action in public nuisance couldnot be brought unless the plaintiff had a private cause of action, or had suffered"special damage". The Attorney-General could, however, bring an action, orwith the consent of the Attorney-General an individual could bring a relatoraction in the name of the Attorney-General. From these alternative bases forestablishing title to sue in public nuisance there evolved the two-fold test ofstanding to seek an injunction or declaration in relation to a public wrong, setout by Buckley J in Boyce v Paddington Borough Council.55

According to the test in Boyce's case, a person other than the AttomeyGeneral had standing to seek an injunction or declaration if the administrativeaction interfered with a private right of the plaintiff (in addition to theinterference with the public right) or, where only a public right was interferedwith, the plaintiff suffered "special damage peculiar to himself'. In the firstlimb of the formula the plaintiff has an action in private law. In the secondlimb the plaintiff does not. The second limb, the important one in public lawlitigation, was reformulated by Gibbs J in Australian Conservation FoundationInc v Commonwealth56 (ACF case) to read as "a special interest in the subjectmatter of the action". The test precludes an organisation or social group whichhas a "mere intellectual or emotional concern" regarding a panicular decisionfrom seeking review.

In public nuisance, establishing special damage is part of the cause of action.In public law, establishing a special interest is said to be an issue different fromestablishing the ground of review. Standing is concerned with whether theapplicant ought be permitted to complain to a court about a public wrong. Allthe elements may exist for establishing that a public wrong has been or is aboutto be committed, whether by reason of illegal action by an administrator or by'Contravention of a regulatory provision, even by a private individual. Yet if theIwrong plaintiff seeks access to the court to remedy the illegal action or toprevent the wrong-doing, no relief is available. The fact that the test oftanding to seek an injunction or declaration has its origins in public nuisanceuggests the arbitrariness of describing the test as a distinctive one in publicaw but not in private law.

5

6

Australian Institute of Marine and Power Engineers v Secretary, Department ofTransport (1986) 71 ALR 73,80-1 per Gummow J.l1903] 1 Ch 109. Boyce's case itself was a public nuisance case and so were the casescited by Buckley J. See Neville Nitschke Caravans (Main North Road) Ply Ltd vMcEntee and McEntee (1976) 15 SASR 330, 340 per Bray CJ; Onus v Alcoa ofAustralia Ltd (1981) 149 CLR 27, 71 per Brennan J; Wentworth v WooLlahraMunicipal Council (1981) 149 CLR 672, 679-81; S M Thio, Locus Standi andJudicial Review (1971) 172-3; P Cane, supra n 43,314.(1980) 146 CLR 493, 527, 530.

94 Federal Law Review [VOLU:ME 20

Recognising the private law origins of the test, Brennan J in Onus v Alcoa ofAustralia LtdS7 welcomed the reformulation in the ACF case of the old test of"special damage peculiar to himself', the second limb of the test in Boyce'scase:

Perhaps Buckley J's notion of special damage was derived from the notion ofparticular damage occasioned by a public nuisance and recoverable at commonlaw. ... If that be so the reformulated criterion of 'special interest in the subjectmatter of the action' [in the ACF case] facilitates the separation of the rule asto standing from the defmition of the damages occasioned by a public nuisancewhich is recoverable at law. ... The elements of the common law right torecover a pecuniary award for particular damage occasioned by a public nuisanceare unlikely to furnish a general criterion of a private litigant's standing to suefor an injunction to restrain the contravention of a penal statute where thestatute does not confer a personal right to sue for damages for its breach. It isnot necessary for a private litigant to show that he would have an entitlementto damages if the law were breached before he can demonstrate a special interestin obtaining a declaration or an injunction to restrain a threatened breach. ...the [reformulated second limb] includes cases where the plaintiff has no privateright of action, though he has an interest in the subject matter of the actionwhich is special in comparison with the interest of the public at large...S8

Perceiving the need to adapt a test borrowed from a private law action to apublic law context, Brennan J drew attention to the fact that in a publicnuisance action the remedy sought is damages. Moving to the public lawcontext, the standing test is concerned with the remedies of injunction ordeclaration, not damages. The public wrong is contravention of a statute inwhich offences have been created for the protection of the public interest, rathera statute which creates private rights. There is therefore a justification forrelaxing the standing test since damages are not an available remedy in respectof administrative error.59

Examination of the origins of the standing test discloses little justificationfor regarding norms governing the test as having a quality which makes themdifferent from norms governing matters associated with the grounds of review.In public nuisance and in a public law action the defendant may be a privateindividual or a government decision maker. In public nuisance and in a publiclaw action the remedy sought may be an injunction or declaration. Both thestanding test and the requirement of special damage in public nuisance operateto restrict access to the court to obtain a remedy. As a last resort access inpublic law actions may be claimed to be different because there the concern iswith statutes enacted in the public interest. Yet in both the public law test of

57 (1981) 149 CLR 27.58 Ibid, 71.59 Damages are not available in judicial review at general law for administrative error

but there is a limited scope for seeking damages in ton, as in an action formisfeasance in public office: Macksville & District Hospital v Mayze (1987) 10NSWLR 708. Nor are damages available under the ADJR Act: Park Oh Ho v Ministerfor Immigration and Ethnic Affairs (1989) 167 CLR 637. But the Federal Coun mayhave jurisdiction to consider a damages claim in its accrued, associated or crossvested jurisdiction: Park Oh Ho case, id; Kumar v Minister for Immigration, LocalGovernment and Ethnic Affairs (1991) 100 ALR 439, 445; Chan Yee Kin v Ministerfor Immigration., Local Govern.ment and Ethnic Affairs (unreported, Federal Court,Einfeld J, 9 August 1991). See also supra n 16.


;tanding and in public nuisance, the focus is upon individual interests which dolot amount to legal rights. In both cases the basic question is who is thelppropriate plaintiff to right a public wrong.60

S Adaptation of the Test at General LawIf it is accepted that standing is no more a distinctive and procedural matter

han is title to sue in some private law actions, the question remains as tovhether the standing test, borrowed from private law, has been properly~dapted and whether it is necessary at all in the public law context. A standingest which has its origins in the hypothetical question as to who would have haditle to sue had this been a private law action for damages, is inappropriate in alublic law context. The reformulation of the standing test in the ACF caseeaves the process of adaptation incomplete. The application of the ACF test in)nus, in a sense retains a link between standing and remedies. In the ACF case61

\ickin J at first instance and Gibbs J in the Full Court said that the plaintiffsnterest should be one related to the relief claimed. The action should not seeko enforce the law merely as a matter of principle. The idea that the plaintiffI1ust be likely to gain some advantage or avoid suffering some disadvantage ifhe remedy were granted, is repeated by Stephen and Brennan JJ in Onus.62 Buthis idea makes little sense when the applicant represents the interests of a:ector of the public. Success in the action may not in any practical way enure tohe benefit of an individual who represents the public interest or to the benefit)f an interest group responsible for mounting the legal action.

The core argument for refinement of the test, or its abolition, is that not onlyhe Attorney-General (and probably in many cases certainly not the Attorney-Jeneral) may represent the public interest. The reason for the restriction uponitle to sue in public nuisance was the fear of a multiplicity of actions against a)ublic authority.63 The opening of the floodgates of litigation has been rejectedly most commentators as an argument against the abandonment or relaxation)f standing rules in public law actions. It is therefore surprising that Brennan J)bserved in Onus that it is material for a coon to consider in deciding a standingssue, whether the distinctiveness of the plaintiffs interest indicates aikelihood that his or her action will avoid a multiplicity of actions.64 ThisJbservation contains the seeds for the refinement of the standing test. Thenderlying concern should not be the benefit of success in the action to theJarticular plaintiff, but who can represent the public interest, most effectivelynd faithfully. A plaintiff who is an effective and faithful representative of a-lultiplicity of individuals whose interests are affected is more likely toecure, through the legal action, cumulative benefits for those individuals. AJublic interest group which effectively represents the interests of its membersnd its fellow-travellers may secure benefits to those individuals.

o

1

2

34

The argument could be pursued funher by consideration of private law actions otherthan public nuisance, or by analysis of the notion of the "public interest'! at stake inpublic law actions.(1980) 146 CLR 493, 510-11, 530.(1981) 149 CLR 27, 75-76. See also Administrative an.d Clerical Officers Associationv Con.n (1988) 52 NTR 57 per Kearney J.The older authorities are discussed in Walsh v Ervin [1952] VLR 361, 367.(1981) 149 CLR 27, 75.


Signs of such an evolution in the role of the standing test are becominglevident in the context of the test of standing under the ADJR Act. The cases are:discussed in Part 3 of this article. Before turning to them, it is worthlcompleting the picture of the role of standing in relation to other issues in alpublic law action.

F Relalionship Between Standing and Olher IssuesIf standing is not necessarily distinctive in comparison with those public lawl

issues which are assumed to be substantive, as a funher step it might be argued!that standing is an issue of the same nature, or that it may merge with,:substantive issues. This argument is not simply concerned with the idea that inlproceedings standing should be dealt with not as a preliminary matter but in:the fuller context of the hearing. The argument is concerned with the idea thatlthe issue of standing is in the same category as justiciability or a ground oflreview. In addition the criterion for establishing other public law issues may belso similar to the standing test that there is little reason for giving standing~

separate consideration. Since the latter occurrence presents a powerful I)

argument for regarding standing as a substantive issue, it calls for examination,:in relation to the test of justiciability and the test for the implication oflprocedural fairness.

(1) J uSliciabilityAt first glance the concerns of justiciability and standing appear to be very I

different. Justiciability is concerned with the question whether the nature of a I

decision or decision maker makes judicial review inappropriate. Standing is i

concerned with the question of who has access to the court to seek judicial I

review. Yet the standing test of whether the plaintiff has "a special interest inlthe subject matter of the action tt6S bears some resemblance to the test of the:justiciability of a dispute, which has in recent years emerged beside the tests ofthe availability of remedies in judicial review at general law. The test ofjusticiability at general law cannot be neatly encapsulated in a formula. Itdepends upon whether the power exercised is a particular type of prerogativepower, whether the decision has a high-level complex policy content, whetherthere is a relationship of the decision with international relations or national!security, and whether the decision has a direct effect upon the interests ofindividuals.66 The overlap is only partial. Since justiciability takes into accountindividual interests, there is the potential for the test to encompass the test of'standing in some cases. After all, the test of standing, in excluding access to the I

65 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Onusv Alcoa of Australia Ltd (1981) 149 CLR 27.

66 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374,408-9 per Lord Diplock; Minister for Arts, Heritage and the Environment v PekoeWallsend Ltd (1987) 75 ALR 218, 224 per Bowen 0, 249 per Wilcox 1. Despite theHigh Coun decisions in R v Toohey (Aboriginal Land Commissioner); ex parleNorthern Land Council (1981) 151 CLR 170 and FAI Insurances Ltd v Winneke(1982) 151 CLR 342, extending judicial review to the vice-regal level, the status ofthe decision maker may still be a lingering factor in relation to Cabinet decisions: cfthe Peko-Wallsend Ltd case, id, with Sou.th Australia v O'Shea (1987) 163 CLR 378.

1991J Standing: the Role and Evolution of the Test 97

court, functions in the same way as a test of justiciability if no suitablealtemative litigant is willing to sue, or indeed exists.67

The relationship between the tests is rather different in review under .theADJR Act. A distinction between justiciability and standing appears in thedrafting of the Act. The ADJR Act test of justiciability differs from the test atgeneral law, turning upon the meaning of "decision", "of an administrative:haracter" and "under an enactment", as those expressions have been construed inthe case law, together with the express exclusion of decisions of the Govemor:Jeneral and decisions listed in Schedule 1.68 Obvious differences flowing fromthe statutory definition are the non-justiciability under the ADJR Act of the~xercise of any prerogative power, or of decisions of the Governor-Genera1.69

Jnlike the test at general law, the ADJR Act test of justiciability discloses no~oncern with interests. If the ADJR Act makes any issue logically preliminary,_hen it is justiciability rather than standing. A "person aggrieved" is not aJerson whose interests are affected by any federal administrative action, butJnly by a decision or conduct to which the ADJR Act applies, that is,ldministrative action justiciable under the Act. Standing is a hurdle to judicial-eview which follows successful surmounting of the justiciability hurdle and-:annot be subsumed under it.70

'2) Procedural fairnessThe test of standing to seek an injunction or declaration at general law, that

he plaintiff have a special interest in the subject matter of the action, appearso be closely similar to the test for implication of procedural fairness. The~eneral test as to whether an administrator has a legal duty to observe the-,rinciples of procedural fairness is whether the power exercised by the~dministrator is apt to affect the interests of an individual alone or to affect thendividual's interest in a manner which is substantially different from theflanner in which its exercise is apt to affect the interests of the public)1 Itnight be argued from the similarity in the tests that standing is not a distinctJf procedural issue, but merges with the ground of review.

Procedural fairness is implied in relation to courts and, in general, toribunals. Standing is also generally an issue for both sorts of bodies, although-tanding to seek review by a court has in some cases been removed or relaxed andtanding before tribunals is normally governed by particular statutory

.7

•8

9o

Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270.For recommendations as to how the ADJR Act might incorporate the test ofjusticiability at general lawt see Administrative Review Council, supra n lIt paras364-380.See generally Administrative Review Council supra nIl.The very definitions of "decision" and "conduct engaged in for the purpose of makinga decision" in the Act import a substance/procedure distinction between stages in theadministrative decision-making process, according to the majority decision of theHigh Coun in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (MasonCIt Brennan and Deane J1). Toohey and Gaudron Jlt on the other handt rejected theargument that any such distinction emerged from the definitions of "decision" and"conduct" in the Act: ibid 53-54. But it is not necessary to pursue here the viabilityof a substance/procedure distinction wilhin the lest of justiciability, or whether sucha distinction makes sense in public administration.Kioa v West (1985) 159 CLR 550t 619 per Brennan J (similar fonnulae being givenby Mason J at 584t and by Deane J at 632).

98 Federal Law Review lVOLUME 20

provisions.72Both procedural fairness and standing are concerned withparticipation in decision making in the public sphere, one by gaining access tothe administrative process, the other by gaining access to the mechanism ofjudicial checking of that administrative process. Correlative to the legal rightto procedural fairness, whether before an administrator or court, is a legal dutyof the administrator, or judge, to afford a reasonable opportunity to present acase. The content of procedural fairness may not in every set of circumstancesrequire an oral hearing, the appropriate content sometimes being an opportunityto make written submissions or simply notice that a decision will be made. Inthe case of a coun, however, procedural fairness requires an oral hearing, subjectto any applicable statutory provisions or rules of court modifying aspects ofthe presentation of the case. Similarly, standing to seek judicial review alwaysrequires an oral hearing simply because the decision maker is a court.

There is an historical link between procedural fairness (which was known asnatural justice) and remedies. The availability of prohibition and certioraridepended upon establishing that the tribunal or inferior court whose decisionwas under challenge had a "duty to actjudicially".73 Ridge v Baldwin74 removedthe requirement that a decision maker has a duty to act judicially as aprerequisite to the implication of natural justice. But the duty to act judiciallyremained a requirement of the availability of prohibition and certiorari, subjectto some inconclusive dicta to the contrary.75 This link between natural justiceas a ground of review, and remedies, has not been translated into the ADJR Act.The provision for remedies in S5 15 and 16 of the ADJR Act contains norequirement that the respondent have a duty to afford procedural fairness. TheVictorian statute reforming procedure, the Administrative Law Act 1978(Vic), contains a link between natural justice and justiciability, rather thanbetween natural justice and remedies. In that Act, justiciability is definedpartially in terms of the satisfaction of the test of implication of naturaljustice.76 Although no attempt is made in the Victorian Act to codify remedies,

72

73

74

75

76

An example of a court, access to which is not restricted by a standmg rule, is theLand and Environment Court in New South Wales: Environmental Planning andAssessment Act 1979 (NSW) s 123. For an example of a standing rule applying to atribunal see Admmistrative Appeals Tribunal Act 1975 (Cth) ss 27, 30(1 A). For othertnbunals standing may be incorporated in the test of justiciabIlity, say whereprovision is made for persons subject to adverse decisions of a panicular type toappeal the decision to an internal reviewer or to a specialist tribunal. In the case ofsome tribunals, such as the Ombudsman, there is no standing rule.R v Electricity Commissioners; ex parte London Electricty Joint Committee Co(1920) LId [1924] 1 KB 171.[1964] AC 40.O'Reilly v Mackman [1983] 2 AC 237, 279 per Lord Diplock; Council of CivilService Unions v Minister for the Civil Service [1985] AC 374, 399-400 per LordFraser, but these were natural justice cases. See further M Aronson and N Franklin,Review of Administrative Action (1987) 577-588.Administrative Law Act 1978 (Vic) ss 2, 3. The ambit of that statute is restricted to"tribunals", which are defined as cenain decision makers which have a duty toobserve the rules of natural justice. This requirement is to be satisfied irrespecti'fe ofwhether the plaintiff seeks to establish a denial of natural justice. Indeed thechallenge may be confined to excess of power. It is curious that the elements of thecause of action, namely denial of procedural fairness, should provide the benchmarkfor detennining the question of justiciability or access to a court. If they do, theposition approximates to that from which public law is claimed to be different, the


_he role given to natural justice in defining justiciability appears to hark back tohe pre-Ridge v Baldwin era where the duty to act judicially was a critical~:omponent in the availability of prohibition and certiorari. .

Despite the absence of any link between procedural fairness and remedies, theest for implication of procedural fairness and the test for standing are closely;imilar. Nevertheless, unlike the legal right of standing, the legal rights:ncapsulated by procedural fairness go beyond the right of access to a decisionnaker. Procedural fairness imposes detailed requirements concerning theiecision making process, including the disclosure of adverse material, the wayhe hearing is conducted, the unbiased appearance of the decision maker and evenhe existence of evidence upon which the decision could properly be based.v'luch of this could also be labelled "procedural". But the bias rule and the no.vidence rule bring into play matters which go beyond the interaction betweenhe applicant and the decision maker at the hearing. To the extent that a roughiistinction can be drawn between procedure and substance, procedural fairnesss concerned with substance as well as procedure. This substantive element ofJrocedural fairness as compared with standing is evident upon the basis of aarrow view of the scope of the no evidence rule. The comparative point can be1ade without accepting that a ground of "substantive procedural fairness" isrguable in Australia or the expansive view of the no evidence ground which has·een persuasively expressed by Deane J in Minister for Immigration and Ethnicffairs v Pochz77 and Australian Broadcasting Tribunal v Bond.78

Nevertheless, where an individual's interests are obviously affected by aecision and procedural fairness is the only ground of review raised, there is aense in which standing and procedural fairness "merge". The possibility of amerger" of the test of standing is confined to one element of procedurallirness as a ground of review, the test for implication of procedural fairness.~he similarity of the tests suggests that if a person is entitled to be accordedrocedural fairness, then that person's standing ought not to be in issue.79

v'hether to establish standing or to establish that the decision-maker has a duty) observe procedural fairness, the applicant must show an interest affectedeyond that of other members of the public. It is not surprising that in Kioa vlest80 Brennan J observed that if interests are affected to the extent that

position in private law, where title to sue is sald to merge with the cause of action.For a discussion of the impact upon this test of justiciability of the liberalisaton inKloa v West (1985) 159 CLR 550 of the test for implication of procedural fairness,see M Allars, supra n 8, paras 3.25-3.26.(1980) 31 ALR 666.(1990) 170 CLR 321. A full defence of this claim requires analysis of the status ofthe "no evidence" rule, panicularly since the Bond decision, a task which cannot beundenaken here.The codification of grounds of review in 5S 5, 6 and 7 of the ADJR Act did nOlimpose new duties upon administrators making decisions reviewable under the Act.Thus, the encapsulation of denial of procedural fairness in S5 5(1)(a) and 6(1)(a), doesnot of itself impose a duty on administrators to observe procedural fairness wherethey would not otherwise have had such a duty at common law: Kioa v West (1985)159 CLR 550.(1985) 159 CLR 550, 621, but note Brennan 1's rejection (responding to theapproach taken in O'Reilly "II Mackman [1983] 2 AC 237, 275), of the legitimateexpectation as the true criterion for standing or implication of procedural fairness.


procedural fairness is implied, then the effect upon interests must also groundstanding to sue. Consideration of standing as a separate issue appears tcduplicate consideration of the substantive issue of implication of procedurall

fairness and therefore to merge with it, in the same way that title to sue i5claimed to merge with the cause of action in private law.

In Kioa v West81 Mason J forecast that the critical question in procedural l

fairness cases will usually not be implication but the content of procedurall

fairness. Ironically, recent High Court cases have been concerned wittimplication, perhaps clearing the ground in the aftermath of Kioa, or limitingthe liberalising effect of that decision.82 Even if implication is not a conteste{issue, it remains an element of the ground of review. Determining the content oj,procedural fairness normally requires close examination of the severity of th{impact of the decision upon the interests of the applicant, the very concern oj,the test of standing. The standing test may therefore to some degree overlarwith the question of content.

But this argument for merger of standing and procedural fairness has so fIDignored an important element of the implication test, an element additional tcthe element of interest affected. Although interests must be affected, statutOI)1construction frequently plays an important part in resolution of the issue ojimplication. Procedural fairness after all consists in common law rules impliecin order to "supply the omission of the legislature" .83 A clear and unambiguou~

legislative intention to exclude procedural fairness precludes its implicationSuch a legislative intention may be manifested by complete provision in thtstatute for a hearing procedure, whether by inclusion of a code regarding th{hearing procedure, or an adequate appeal, or a scheme of a multi-stage decision c

making process in which a hearing is afforded at an earlier stage than the final"pure policy" decision which is challenged.84 Procedural fairness may also beexcluded by urgency, necessity, or overriding national security considerations.8~

The element of the statute has been particularly emphasised by Brennan J as thetrue foundation and limit upon the scope of procedural fairness, rather than theconcept of legitimate expectation which diverts attention from the statute t(the facts giving rise to an individual's expectations.86

In the case of standing the element of interest affected almost constitutes th(whole of the issue. However, statutory construction plays a part in the standin~

issue if it is a moot point whether the statute created public rights or (

8182

8384

85

86

See also Idonz Pty Ltd v National Capital Development Commission (1986) 67 ALR46, 57-8.(1985) 159 CLR 550, 585.For a later limitation upon the liberalised implication test see Allorney-Gen.eral(NSW) v Quin (1990) 170 CLR 1. For a case concerned with resolving the impact ojthe implication test upon another principle of administrative law, the no-fetteringprinciple, see Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169CLR 648. For an amplification of the liberalising effect of Kioa v West (1985) 159

1

CLR 550, see Annells v McCann (1990) 170 CLR 596. I

Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 per Byles J. I

SOUlh Australia v O'Shea (1987) 163 CLR 378.Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253, affd (198567 ALR 77; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Council 0

Civil Service Unions v Minister for Civil Service [1985j 1 AC 374.An.nells v McCann (1990) 170 CLR 59.

1991J Standing: the Role and Evolution of the Test 101

statutory right in the applicant as an individual. s7 A court's objectives inengaging in statutory construction differ in relation LO each test. There isnormally no sense in which the court construes the empowering statute} toascertain whether there is a legislative intention to exclude the operation of thestanding test which applies at general law or under a procedure statute. Theoverlap between the tests of standing and implication of procedural fairness istherefore confined to the "intereststf aspect of each test.

Whilst standing is potentially an issue in every application for judicialreview (except one initiated by the Attorney-General), implication ofprocedural fairness is only potentially an issue when denial of proceduralfairness is argued as a ground of review. The basis upon which standing could beassimilated with the issues raised in establishing errors of law other thandenial of procedural fairness remains unclear. Errors of law other than denial ofprocedural fairness are normally established by construction of the~mpowering statute and assessment of the facts to ascertain whetheradministrative action is ultra vires in a narrow sense or made in abuse of power.Whatever errors of law are claimed in the application, if the applicant is~uccessful in establishing only errors other than denial of procedural fairness,~hen consideration of the ground of review has not normally included any~lement resembling the standing issue. Standing remains an additional issue.

) EVOLUTION OF THE ADJR ACT TEST

In recent review under the ADJR Act, judges have moved towards a~onstruction of the expression "person aggrieved" which is more liberal thanhe test at general law of special interest in the subject matter of the action....iberalisation has occurred in the form of two developmen ts. The first is antpplication and extension of the principle at general law that an individual's)articipation in a tribunal hearing generates an interest of that individual in the)roper conduct of the hearing. The second development is more radical,nvolving the recognition that the carriage of litigation involving a public issue)ught to be entrusted to an applicant who is capable of representing the publicnterest, rather than to an individual who simply has a special interest.

\ Participation in Primary Decision-Making Process

1) Primary responsibility as participation

The first development is evident in United States Tobacco Company vi4inister for Consumer Affairs.88 The Trade Practices Commission had made a

8

Cooney y Ku-ring-gai Municipal Council (1963) 144 CLR 582; Onus v Alcoa ofAustralia Ltd (1981) 149 CLR 27, 67-68; Coe v Gordon [1983] 1 NSWLR 419, 425426; Blyth DistriCI Hospital Incorp y South Australian Health Commission (1988) 49SASR 501; Federal Commissioner of Taxation v Biga Nominees Ply LId [1988] VR1006; Yarmirr v Australian Telecommunications Corporation (1990) 20 ALD 562;Yates Security Services Ply Ltd y Keating (1990) 98 ALR 68, 78-80.(1988) 82 ALR 509; rev'd (1988) 83 ALR 79. At first instance Einfeld J grantedAFCO leave to participate in the proceedings as an amicus curiae. The principlesapplying to the appearance of amicus curiae were considered by the Full Court but itwas not necessary to decide the issue. The test of standing under the ADJR Act is soliberal, ordinarily the question ought not to arise.


direction under s 65J(5)(c) of the Trade Practices Act 1974 (Cth) that inaddition to the parties expressly entitled to attend a conference called under s65J (these being the supplier who requested the conference, the Commission andthe Minister), an additional party was entitled to be represented at theconference. The additional party was the Australian Federation of ConsumerOrganisations (AFCO), which was a federation of many consumerorganisations, incorporated in the ACT and to a large extent funded by thefederal government. At the conference the AFCO presented evidence and viewsof its own challenging those of the supplier of smokeless tobacco products. Thesupplier later sought review under the ADJR Act of the Minister's decisioninitiating the inquiry and a stay of the holding of the conference. AFCO soughtto be joined in that action, under s 12 of the ADJR Act, the standing test forjoinder being the same as that for "person aggrieved", although joinder isaccorded at the discretion of the Court.89

The Full Federal Court held that AFCO had an interest affected and ought tobe joined as a party in the ADJR Act action. As a participant in the conference,AFCO was entitled to insist that it be conducted in a manner that was fair tothe participants. By its admission to the conference the AFCO had "acquired aspecial position" or a "special advantage", both in the conference and inmaintaining the validity of the Minister's decision to hold a conference. Theinterest was a special one, being different in kind from the interest of membersof the public.90 The United States Tobacco decision appears to affirm as ageneral principle that participation in the proceedings by which the decisionunder review was reached gives rise to an interest which is special, foundingstanding under the ADJR Act to challenge the legality of those proceedings.

The Full Court in obiter suggested how the principle might be furtherrefined. A letter by AFCO to the Minister seeking a ban on the importation ofsmokeless tobacco would not of itself found standing.91 It was clear thatAFCO was in a different position from the many organisations which had madewritten submissions to the Minister.92 AFCO claimed to be responsible for theNational Health and Medical Research Council's having made arecommendation that the importation be banned under the Trade Practices Act.However, the Full Court observed that AFCO had not shown that it was "themoving force" behind the action taken under the Trade Practices Act.93 Perhapsit is to be inferred from this observation that an organisation which indeedestablishes that it has been primarily responsible for a matter being consideredby an administrator will be in a strong position to argue that it has a specialinterest in the subject matter of an action commenced by the firm which is thesubject of complaint Primary responsibility may be enough, irrespective of anyparticipation by the organisation in a conference or other proceeding under therelevant statute.

Further suppon for this extended notion of participation, through primaryresponsibility for initiation of the proceedings of the tribunal below, as afoundation for standing to seek judicial review, is found in Telecasters North

89 (1988) 83 ALR 79, 86-7.90 Ibid 89, 90.91 Id.92 Ibid 90.93 Id.

1991 J Standing: the Role and Evolution of the Test 103

Queensland Ltd v Australian Broadcasting TribunaL.94 An organisation calledthe Townsville Aboriginal and Islander Media Association Ltd had applied tothe Australian Broadcasting Tribunal for the Tribunal's powers to be exercisedin relation to a remote television licence. As a result the Tribunal commencecI apublic inquiry. But the Association remained ignorant of the proceedings for anorder of review which were later brought by the licensee in relation to thatinquiry. Justice Pincus stated in obiter that even if the Association were simplya collection of actual or potential viewers, or a representative of that collectionof people, it had a special interest as the initiator of the inquiry.95

(2) Justification for Evolution of TestReturning to the United States Tobacco case, the Full Court sought

justification for its decision in two principles of administrative law. First, itwould in any event have been a breach of procedural fairness for the applicant tohave proceeded with its action for an order of review and AFCO to be denied anopportunity of a hearing before the court.96 The assimilation of tests ofstanding and implication of procedural fairness was discussed earlier, but in thecontext of a claim of denial of procedural fairness as a ground of review inrelation to the primary decision-making process, rather than in relation to thecourt conducting judicial review. In that discussion the overlap between thestanding test and the test for implication of procedural fairness was evidentwhere, in relation to one proceeding, the similarity of the tests meant thatsatisfaction of the first indicated satisfaction of the second. Although a courtmay deny procedural fairness by making an ex parte order against a party to theaction, it is a more novel proposition that a court may deny procedural fairnessto anon-party. It is not questioned that a denial of procedural fairness may arisein such circumstances in the case of administrators generally or even tribunals,where the decision making is not tripartite. In such cases of simple interactionbetween the administrator and the individuals affected, being a party is aquestion which does not arise.97

Section 12 of the ADJR Act requires an application to be made to the Counbefore the Court may in its discretion order joinder as a party. Yet the FullCoun suggested that procedural fairness may require that a hearing be givenwithout any application for joinder having been made. Perhaps the Full Counhad in mind the power of the Federal Court under 0 54 r 5(b) of the FederalCourt Rules to direct the giving of notice of the application to persons orclasses of persons, a power associated with older principles requiring allinterested persons to be made parties before a declaration is made affecting theirrights. In the Telecasters case Pincus J referred to this power and warned thatthese factors indicate that it would be "a sound course" for an applicant underthe ADJR Act to make interested persons respondents or at least notify them:>f the proceedings. In the view of Pincus J the Coun could decline to determine

94

9596j7

(1988) 82 ALR 90.Ibid 99.(1988) 83 ALR 79, 90.Maksimovic v Walsh [1983] 2 NSWLR 656; Director of National Parks and Wildlifev Barritt (1990) 21 ALD 758, 761.


the case if injustice would thereby be caused to a person interested who had notreceived such notice.98

The second principle of administrative law to which the Full Court hadresort in United Stales Tobacco was the principle that utilisation of astatutory right to lodge an objection and to pursue it before a tribunal foundsstanding to seek a prerogative remedy.99 Yet the United Slales l'obacco casegives fuller recognition than does the traditional principle to the "process"value of participation in administrative decision making.l OO Although theparticipation must be of a sufficient order, it may be something much less thanthe exercise of a statutory right to participate, as in Sinclair v Mining Wardenat Maryborough.1 01 As the United States Tobacco case itself illustrates, anexercised legal right to participate, arising only as a result of the exercise of adiscretionary power of a tribunal to grant leave to appear, was sufficient togenerate an "interest" founding standing to seek, or to be joined in, judicialreview.

B Representative of Public Interest

(1) Precursors to a new approachThe second development in the evolution of the construction of "person

aggrieved" under the ADJR Act, is the recognition that the important questionin determining whether an individual or interest group has standing is thequestion of representation of the public interest. This question incorporates aconcern for the representativeness of the litigant and the capacity to present thecase. These are considerations which were emphasised by the Law ReformCommission in its report in 1985 on standing in public interest litigation.I 02

In 1987, in Ogle v Strickland,103 Wilcox J adopted this approach, concludingthat any person professing the Christian faith had standing to seek an order ofreview in respect of a decision of the Censorship Board to release a film claimedto be blasphemous. In the course of reaching this conclusion, Wilcox J qualifiedthis liberalisation of the standing test of "person aggrieved" by reference to theduty of the court to insist that an applicant adequately represents the casesought to be made, in the public interest.104 The court has a discretion to denystanding to an applicant who is not capable of representing the relevantinterest. The other judges in Ogle v Strickland based their conclusion that thepriests had standing upon the vocation of these applicants, which iave them aspecial interest in repelling blasphemy, beyond that of other Christians. Justice

9899

100

101

102

103

104

(1988) 82 ALR 90, 99.(988) 83 ALR 79, 91, referring to Sinclair v Mining Warden at Maryborough (1975)132 CLR 473; National Trust of Australia (Vic) v Australian Temperance and GeneralMutual Life Assurance Society Ltd [1976] 1 VR 592; Australian ConservationFoundation v Environment Protection Appeal Board [1983] VR 385. See also thesupport sought by Pincus J in these principles in Telecasters North Queensland Ltd vAustralian Broadcasting Tribunal (1988) 82 ALR 90, 99.As to "process·' rights see eg, R S Summers, ttEvaluating and Improving LegalProcesses - A Plea for 'Process Values'" (1974) 60 Cornell L Rev 1.(1975) 132 CLR 473.Law Refonn Commission supra n 25.(1987) 71 ALR 41, 56-9; Law Refonn Commission, Standing In Public InterestLitigation, Report No 27 (1985).Ibid 58-9.


Fisher expressly disagreed with the view of Wilcox J, regarding Christiansgenerally as having only an intellectual or emotional concern, which did nOlsatisfy the A CF test. Justice Lockhart expressly declined to decide thequestion.I 05 .

(2) I'he second ACF caseThe development of a component in the construction of "person aggrieved"

relating to the repesentativeness and capacity of the applicant, received strongeraffirmation in Australian Conservation Foundation v Minister forResources.l06 In that case Davies J held that the Australian ConservationFoundation (ACF) had standing to seek review of the Minister's decision unders 30 of the Australian Heritage Commission Act 1975 (Cth) to permit loggingin parts of the South East Forests. Relying upon a more liberal formulation ofthe ACF test by Stephen J in Onus v Alcoa of Australia Ltd,107 Davies Jdeveloped a test of the capacity of an applicant organisation to represen1 thepublic interest. The test consists of two elements. First the applicant must notbe a mere busybody but must be capable of representing the public interest. TheACF was an acceptable representative, given its objects of ensuring ecologicalsustainability of exploitation of natural resources, its being a nationalorganisation and a large financial enterprise with government funding, and itshaving played a leading role in the protection of the National Estate, inparticular having taken many steps in relation to the South East Forests. Hadthe subject matter of the case been an environmental issue in which the ACF hadnever displayed such involvement, a special interest may not have beenestablished. lOS

The second element of the test was that of "current community perceptionsand values" .109 A court could take judicial notice of the public perception of theneed for protection of the environment, the need for bodies such as the ACF toact in the public interest, and the community expectation that the ACF wouldconcern itself with the particular issue and would act in the public interest inputting forward a conservation viewpoint as a counter to the viewpoint ofeconomic exploitation.11 0

Ironically in Australian Conservation Foundation v Minister for Resources,the second applicant, a landowner whose property adjoined the area proposedfor logging, was held to have no standing. The landowner no doubt wasincluded as a second applicant in the action for strategic reasons, in order thatthe action could proceed if an objection to the standing of the ACF weresuccessful. He claimed logging in the area would have an adverse effect upontraditional property interests of his. Roading and logging in the area wouldincrease the frequency of damaging floods, increase the risk of uncontrollablefires, lead to silting of the river, to flooding and damage to his property.

lOS106107

108

109

110

Ibid 43, 53.(1989) 19 ALD 70.(1981) 149 CLR 27.(1989) 19 ALD 70, 74.Id, relying upon a passage in the judgment of Stephen J in Onus v Alcoa of AustraliaLtd (1981) 149 CLR 27, 42.The action failed on the substantive point, it not having been established that theMinister misunderstood the nature of his discretionary power under the AustralianHeritage Commission Act.


Timber trucks travelling along the road which also led to his property haddamaged the windscreens of his motor vehicles, the noise of chip boats loadingat night was disturbing and he was upset by the loss of trees several hundredyears old and the insensitive destruction of plant and animal habitat. In general,his special interest was claimed to rest in the jeopardy the logging presented tohis future livelihood, safety and enjoyment of life. Justice Davies held that thelandowner had only an interest as an ordinary member of the community in theissue which was the subject of the action. This was an issue of damage withinthe National Estate, rather than an issue of damage to private property outsidethe National Estate.

The denial of standing to the landowner is the odd aspect of the decision. Itseems to invert the accepted view that consistently with the ACF test localresidents or adjoining landowners whose property interests or amenity isaffected by a development have a special interest in the subject matter of anaction challenging the decision to permit the development.1!! In a later decisionWilcox J disagreed with this aspect of Davies J's decision, regarding the locallandowner as having a straightforward special interest over and above that ofother members of the public.l 12

However, the view of Davies J on the standing of the landowner is explicableas a recognition of the public nature of the issue at stake in the case. The issuewas a national one, raising an important question about preservation of a largearea of wild forest in Australia. As public interest litigation, the case for thepublic would appropriately be presented by a public interest organisation, theACF, rather than by a private individual who would be an advocate for privaterather than public interests. It was vital that a body like the ACF be a party tothe action.

However, it might have been argued, or indeed accepted in the decision, that noharm would be done by the presence of the landowner as an additional applicantrepresenting private interests which might coincide with many of those sharedby other members of the public. Indeed, there may be more than one potentialrepresentative of the public interest. Normally identification of the properrepresentative could be expected to be a matter of self-selection. It is possiblethat cases could arise where alternative representatives of the public interestvie for standing in a particular action. They may be judged in terms of theirresources and strength to undertake the task of representation, not only in thelitigation but in the context of the wider political activities of which thelitigation forms a part. Thus, since the role of promoting protection of the

111

112

For cases at general law see Australian Conservation Foundation Inc vCommonwealth (1980) 146 CLR 493, 530 per Gibbs J (ttl would not deny that aperson might have a special interest in the preservation of a particularenvironment. tt); Day v Pinglen Pty Ltd (1981) 148 CLR 289, 299-300; Ex parteHelena Valley/Boya Association (Inc); Slale Planning Commission and Beggs (1989)2 WAR 422. An environmental group may be able to establish a special interest onthe basis of its proprietary interest in running tours or selling souvenirs inconnection with the area under threat of development: Fraser Island DefendersOrganisalion Lid v Hervey Bay Town Council [1983] 2 Qd R 72. But cfCenlralQueensland Speleological Society Incorp v Cenlral Queensland Cemenl Ply LId (No 1)(1989) 2 Qd R 512.Yales Security Services Pty Ltd v Keating (1990) 98 ALR 21, 45-6; rev'd on otheraspects of the application of the standing test in Yales Security Services Pty Lid vKealing (1990) 98 ALR 68.


~nvironment of the Southern Forests had been assumed by the ACF in this full~ense, it was an appropriate applicant in Australian Conservation Foundation vVinister for Resources. Any interest of the Heritage Commission (which had°ittle involvement in the negotiations with the Minister and had made no attempt_0 join the proceedings) was negligible in comparison and could not exclude the~ase of representation by the ACF.113

The interpenetration of public and private elements, not only in the nature ofnany public interest organisations, but also in organisations assumed to be1overnmental, reinforces the appropriateness of a shift in Federal Court thinkinglOOut standing. There may be private law elements in the nature of the publicnterest organisation. The relationship between the members of a pressure groupnay be governed by contractual relations expressed in the rules to which thenembers consent. Other public interest organisations may be incorporated. Buthese factors do not of themselves normally present a bar to establishing-:tanding. In assessing its representativeness of a public interest organisation, the-:oncern of public law should be with the interaction of the organisation in)ractical terms. This encompasses intra-organisational interaction, interactionNith other organisations with similar objects and activities, and interaction with~overnment and the wider public.

'3) Costs ordersThe recognition that an organisation may playa vital role in representing the

-,ublic interest in judicial review is underlined by the court's exercise of itsliscretion to mould costs orders. Those proceeded against under the ADJR Act bylublic interest bodies will not be deprived of the ordinary protection of a costsJrder in the event that the claims made against them prove unfounded.l 14Jenerally, if a public interest organisation joins ADJR Act proceedings at itsJWO request, it will oot receive its costs if the application fails.l 1S In some cases:ourts have displayed a sympathy for public interest litigants who act for theleoefit of the wider public, by making discretionary adjustments of costs ordersn their favour.l 16 But large, well-known, well-funded organisations are likely toeceive less sympathy as unsuccessful applicants than private individuals who;rek review.117

The importance of the role played by public interest organisations has beenlighlighted in those cases where it is inappropriate for a tribunal, which must,reserve its impartiality, to take the role of protagonist in an action brought;gainst it)18 Thus, in a case where contending applicants for a licence are the

113

14

IS16

1718

Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, 74.Australian Conservation Fou.ndo.tion v Forestry Commission (1988) 81 ALR 166, 171 perBurchett I.KaycliffPly Ltd v Australian Broadcasting TribUNll (1989) 19 AID 315.See also the sympathy of the couns with regard to costs orders for public interest litigants inappeals from the Administrative Appeals Tribunal to the Federal Court: Arnold (011 behalfofAustralilmsfor Animals) v Queensland (1987) 73 ALR fIJ7, 621-622, 635 (Federal Court);and review in the Supreme Court of ACT: Ke1ll Y Cavanagh (1973)1 ACIR 43, SSeAustralian Conservation Foundation y Forestry Commission (1988) 81 ALR 166, 170-171.R Y Australian Broadcasting TribUMl; ex parte Hardiman (1980) 144 CLR 13; Aldridge Y

Booth (1988) 15 AID 540.


parties actively debating the validity of a decision of the AustralianBroadcasting Tribunal before the court, the Tribunal plays a role of simply'presenting submissions on practices and procedures and questions of law, andnormally bears no costs.119 A public interest organisation may in some casesplaya vital role in providing a real opponent.120 In a case where the publicinterest organisation adds little to the length of the proceedings and assists in,ensuring that proper attention is given to the issues, the court is more inclined,to make an order for costs in the organisation's favour. The participation of the'Communications Law Centre in the litigation against the AustralianBroadcasting Tribunal in the course of its inquiry into the Qintex group ofcompanies is one such case.121

C Remoteness as a Side ConstraintMany administrative decisions affect not just one individual, but have:

"ripples of affection" which extend widely.122 The test of standing at generallaw is fluid and discretionary, requiring a judgment of degree as to whether thelimit has been reached beyond which the effect of the decision upon interests istoo remote to satisfy the test of special interest in the subject matter of the:action.123 In review at general law and under the ADJR Act, the side constraint,of remoteness is expressed in different formulae. These include assessment ofthe "importance of the concern which a plaintiff has with particular subjectmatter and of the closeness of that plaintiffs relationship to that subjectmatter" ,124 requiring consideration of the "intensity and degree" of the interest, I

whether there is a "danger and peril to the interests of the [person] that is clear'and imminent rather than remote, indirect or fanciful" ,125 or whether theinterest has "an intensity and degree well above that of an ordinary member ofthe public",126 or whether the applicant will "gain anything of significance"127if successful in the proceedings.

Despite the assertion by Ellicott J in Toohey's case128 that the indirectness ofthe effect of the administrative action upon interests is no bar to standing, the,

119 R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13; OurTown FM Pty LId v Australian Broadcsting TribuNJI (No 3) (1987) 77 ALR 609.

120 Kaycliff Pty Ltd v Australian Broadcasting TribUNJJ (1989) 19 ALD 315.121 Id.122 Re McHatten and Collector of Custonu (NSW) (1977) 1 ALD 67, 70 per Brennan J (a

case concerning standing to seek review before the Administrative Appeals Tribunal,but cited by the Full Federal Court in the ADJR Act case United States TobaccoCompany v Minister for Consumer Affairs (1988) 83 ALR 79, 89).

123 On.us v Alcoa of Australia Lid (1981) 149 CLR 27,42; Australian Institute of Marineand Power Engineers v Secretary, DepartfMnt of Transport (1986) 71 ALR 73, 82.

114 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 42 per Stephen J; Ogle vStricJdand (1987) 71 ALR 41, 42 per Fisher J.

125 Australian Institute of Marine and Power Engineers v Secretary, Departmenl ofTransport (1986) 71 ALR 73, 82 per Gummow J; Broadbridge v Stammers (1987) 76ALR 339, 341; Australian Foreman Stevedores Association v Crone (1989) 98 ALR276, 282 per Pincus J.

126 Australian Instilute of Marine and Power Engin.eers v Secretary, Departmen.t of'Transport (1986) 71 ALR 73, 82.

lZ7 Australian Foreman Stevedores Association v Crone (1989) 98 ALR 276, 282 perPincus J.

128 Tooheys Ltd v Min.ister for Business and Consum4r Affairs (1981) 36 ALR 64. Seesupra text accompanying nn 24 and 36.


side constraint of remoteness is effectively a test of the directness of the effectof the decision upon the individual seeking review. Thus, licensees under alicence agreement which makes no reference to the patent holder, have been heldto have no standing to challenge a decision of the Commissioner of Patents toextend the time for opposition to the patent application by another party.129This was an artificial approach to remoteness in comparison with another casewhere a club occupying premises under a 99 year lease had standing to challengea decision to put to auction adjoining property whose development, withincurrent policy, could block the club's panoramic view of Lake Burley Griffin.130

Recent applications of the side constraint of remoteness suggest that acareful judgment of degree may have to be made by the court, often in a casewhere the interest alleged to be affected is an economic one. In an actionbrought at general law, Yates Security Services Pry Ltd v Keating,l31 the FullFederal Court held that the interest of the applicant in developing the Paddy'sMarket site in Sydney was too remote to found standing to challenge thelegality of a decision of the Treasurer to permit an acquisition of the site byanother developer to proceed. Whether it won the case or not, the applicantcompany had the commercial benefit of the ability to negotiate for theacquisition and development of the site. Success in the action would not confer acommercial benefit of any kind let alone one over and above that of othermembers of the public. Whilst the court would not expect an applicant toprove a conclusive case that a benefit would accrue from success in the action, inthis case no evidence had been presented by the applicant to establish that itwould be a serious competitor to acquire the site. 132

In an ADJR Act action, Australian Foreman Stevedores Association vCrone,133 unions and two union members challenged a decision to permit theimportation of vessels by an employer of non-union labour. Although the unionmembers expected fewer employment opportunities as a result of the decision,neither the unions nor the individual applicants had standing to challenge it.The government contract which they would have hoped to be awarded to anemployer of union labour had already been awarded out There was no evidenceto show that success in the ADJR Act action would lead to cancellation of that:ontract, or to its being awarded to an employer of union labour, nor that thesuccessful employer would not have obtained the contract without the:hallenged permit to import vessels.

1 CONCLUSION

Two developments in the evolution of the ADJR Act test of standing wereiraced in Part 3 of this article. One relates to participation in the primaryjecision-making process, the other to the representativeness and capacity of the

129

130131

132133

Vangedal-Nielsen y Smith (Commissioner of Palenls) (1980) 33 ALR 144, 147.Indirectness was a somewhat artificial bar to standing since the licensor company,whose name was identical with that of the patent holder. was probably controlled bythe licensor.Canberra Labour Club Lid v Hodg17llJn (1982) 47 ALR 781.(1990) 98 ALR 68. 81. 87. 95-98 (rev'g Yates Security Service Pty Ltd v Keating(1990) 98 ALR 21).(1990) 98 ALR 68. 95-7 per Pincus 1.(1989) 98 ALR 276.


applicant. These developments have the potential for transforming the "personaggrieved" test into a test of standing which is properly adapted to public lawlitigation. Both developments have a common rationale of citizen panicipation,whether confined to the process by which a particular administrative decisionhas been reached, or in the wider arena of political debate between public andprivate players.

Such a rationale incorporates an appreciation of the nature of muchadministrative law litigation as the resolution of competing interests ofindividuals who may be grouped into different sectors of the public. It is arationale which requires the court to exercise a broad discretion with regard tothe twin issues of participation and representation. But a broad judicialdiscretion is already exercised in the application of the standing test at generallaw and under the ADJR Act, in assessing the remoteness of the effect of adecision upon interests. The discretion of the court could be moulded to permita flexible range of orders relating to the degree of participation allowed in ajudicial review action to the panies interested, and their respectiveresponsibility for costs. Flexibility has already been established as the keyelement in the Federal Court's discretionary power to grant relief under theADJR Act.

Standing is an issue which is preserved and separated from the issues ofremedies and justiciability through the drafting of the ADJR Act. Yet thenorms governing standing need not be regarded as distinctive in comparisonwith norms governing other public law issues. The idea of distinctiveness isbased upon the assumption that standing is concerned wit~ who may right apublic wrong, whilst other public law issues are concerned with the existenceof the public wrong. The question of who has access to the court to right apublic wrong is answered by a test which looks to the interests affected by thewrong and who ought to represent those interests. The existence of a justiciablepublic wrong often depends partially upon that very question of whetherinterests are affected, as is evident in the test for justiciability at general lawand the test for the implication of procedural fairness. Of course there are otherelements in these tests, revolving around statutory construction, the nature ofthe administrative action, and public policy considerations. Yet the perplexingtask of achieving a resolution of individual and public interests, a taskunderlying most hard administrative law cases, is the common fare of standingas well as other public law issues.

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