Transcript Administrative Law LSS Policy and Revision Seminar

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Current Law on Standing.
Arguments in favour of a broad approach
Arguments in favour of a narrow approach
Other relevant policy issues – North Coast CF
Right to Life
Example questions on the issue of standing
Limiting the class of people who can seek
judicial review of government decisions has
been a tradition of administrative law.
 The limitation was originally couched in terms of
public interest and private interest.
 A person or organisation only had a right to
challenge a decision which affected a private
interest.
 They could only seek review of a decision
affecting a public interest if a private right was
also infringed or if they suffered some special
damage.
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There are two standing tests; common law
and Administrative Decisions (Judicial
Review) Act.
Debate about whether or not this is
substantially the same test.
Most commentators see that the position
under the AD(JR) Act is broader.
Both tests stem from the private interest
model, although neither still uses this
language.
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A person will have standing for judicial review
on common law when they have a ‘special
interest’ which is more than merely
intellectual or emotional (ACF).
This requires that an applicant under the
common law be affected in a different way or
to a different extent than the public (Allied
Shop Distribution).
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Clear that an ordinary member of the public, who
has no greater interest than any other member of
the public in upholding the law, has no standing to
sue to prevent the violation of a public right or
enforce the performance of a public duty.
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An interest does not mean a mere intellectual or
emotional concern. A person is not interested
within the meaning of the rule, unless he is likely to
gain some advantage, other than the satisfaction
of righting a wrong, upholding a principle or
winning a contest, if his action succeeds or to suffer
some disadvantage, other than a sense of
grievance or an action for costs, if his action fails.
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Special interest is flexible principle.
The issue of what may be a sufficient as a
special interest may vary depending on the
subject matter of the legislation.
Only insufficient where plaintiff is trying to
give effect to beliefs and opinions in a matter
which does not regard him personally except
so far as he holds beliefs and opinions about
it.
Considered to be the narrower of the two tests.
The special interest requirement as expressed in
ACF is quite onerous.
 Onus may be seen as an attempt to create
broader standing but it appears that the cultural
subject matter of the case was very important
and there may not have been standing
otherwise.
 Could take the view that cultural group may
show standing under C.L through Onus but that
a public interest group, such as ACF, may find
this challenging.
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Person aggrieved (s.5)
Interests adversely affected (s.3) by the
decision.
Australian Institute of Marine and Power
Engineers v Secretary, Department of
Transport; ‘an interest in the matter to an
intensity and degree well above that of an
ordinary member of the public’ as per
Gummow J.
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The common thread of these cases is that the
applicant’s interest must be greater than that
of the public.
On reading these two cases ; special interest
and person aggrieved are similar tests.
Note that facts of Marine and Power
Engineers did not involve a public interest
body.
Controversy in standing relates largely to the
role public interest bodies should play.
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Peak environmental group wanting standing
to challenge a government decision to grant
a licence to Sawmillers to export woodchips.
Difficult to see that North Coast would be
affected by decision other than their interest
in conservation and hard to find an advantage
or disadvantage from the decision to grant
the licence.
Held by Sackville J that North Coast had
standing.
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Peak environmental body with 44 other
conservation groups as members and
activities relate to affected area.
Recognised by Cth as significant and
responsible environmental organisation in
form of financial grants.
Recognised by Gov of NSW as body that
should reflect environmental concerns on
advisory committees. Participation in state
gov decision making.
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Conducted and coordinated programs on
significant matters of environmental concern
for which received Cth funding. Not
specifically on issue of wood chipping.
Submissions to Resource Assessment
Commission on forestry issues and funded a
study of old growth forests.
Therefore, no mere busybody and has an
interest which is far more than intellectual
or emotional.
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Sackville J draws conclusion of substantial interest
but this appears more closely linked to the nature of
the group, as opposed to an identifiable interest.
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The persuasiveness of government funding and
support is concerning, as it suggests bodies
recognised by government of the day have greater
ability to show standing.
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A special interest group with government recognition,
peak body status etc will appear to have standing
where a decision relates to their issue of public policy
concern without identifying a specific interest.
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1995 – Full Court of Federal Court decision.
Decided shortly after Northside and two
decisions co-exist despite the vastly different
approaches.
Case involved Right to Life wanting to seek
judicial review of decision not to stop the
clinical trial of abortion pill carried out under
the Therapeutic Goods Act.
Must gain benefit or advantage greater than ordinary
member of the public or detriment or disadvantage
greater than ordinary member of the public.
 The right to try and influence public or politicians does
not create standing in court of law – must be more
than emotional or intellectual pursuit or mere
satisfaction.
 Therapeutic Goods Act is source and is not directed at
‘wide social and moral issues related to abortion’ but
has object of establishing and maintaining a national
system of controls, relating to the ‘quality, safety,
efficacy and timely availability of therapeutic goods’
used in Australia.
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There is an echo of the stricter approach in
ACF as requirement of advantage or
disadvantage.
Public interest body and its activities and
status in community are not factors which
assist in finding standing.
The requirement that the public interest
group’s interest match the purpose of the Act
appears to narrow standing requirements
further.
Common Law – ACF illustrates that a public
interest body will not have a right to standing
based on its status but must have a ‘special
interest’.
 AD(JR) Act – North Coast makes it easier for
public interest bodies to make out standing but
Right to Life appears contrary.
 Compare s.27(2) of AAT Act which appears to
give public interest bodies automatic standing
where the decision relates to their
objects/purposes.
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Potential Policy Question
Strict standing requirements may inhibit the
ability of the courts to prevent unlawful
government action.
 Public has an interest in decision makers being
kept accountable and in ensuring compliance
with legislation that affects public.
 This is not the best way to prevent inappropriate
litigation but that should be done through court
powers and not be restricting the ability of the
public to keep decision makers accountable.
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Democracy, such as Australia, requires citizen
participation in matters of government.
Unnecessary technical barrier as the tests are
complex and confusing, inconsistent and may
be dependent on the value a particular judge
attaches to an interest.
Contrary to fundamental principles of admin
law because a rule of law society requires that
the decisions of admin decision makers be
open to scrutiny.
Court must adjudicate between parties to disputes
about matters affecting their legal rights and duties,
should not waste time and resources adjudicating
matters where parties are not so affected.
 More frequent need for court to determine matters of
public policy.
 Undesirable that government decisions should be at
risk of being set aside by suit of persons with no
personal stake whatsoever in that decision.
 Fuel a growth in overall litigation, as more cases
before court which would place a strain on court time
and resources.
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The doctrine of standing is an established
element of administrative law and any radical
change to this doctrine is a matter for the
legislature rather than the courts.
Parliamentary sovereignty – it is for the
legislature rather than courts to determine
what the law should be.
Similarly, may be that courts are not the most
appropriate forum for raising grievances
about public policy issues.
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‘On the one hand it may be thought that in a community which
professes to live by the rule of law the courts should be open to
anyone who genuinely seeks to prevent the law from being ignored
or violated. On the other hand, if standing is accorded to any citizen
to sue to prevent breaches of law by another, there exists the
possibility, not only that the process of law will be abused by
busybodies, cranks and persons actuated by malice, but also
that persons or groups who feel strongly enough about an issue will
be prepared to put some other citizen, with whom they have had no
relationship, and whose actions have not affected them except by
causing them intellectual or emotional concern, to very great cost
in defending the legality of his actions. Moreover, ideal rules as to
standing would not fail to take account of the fact that that it is
desirable in an adversary system, that the courts should decide
only a real controversy between parties each of whom has a direct
stake in the outcome of the proceedings’.
The core elements of justice delivered by
administrative decision makers are;
 Lawfulness
 Rationality
 Fairness
Consider: If this is the criteria by which admin
law is measured, does current doctrine of
standing uphold these principles?
There is no reason to maintain a standing rule
in judicial review. Standing should be
abolished so that any person or body wanting
to commence judicial review of a proceeding
should do so. Discuss.
(This question is advocating abolition of
standing, so even more extreme than broad
requirement).
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Set out current law which is relevant to the
question clearly.
(With regard to sample question – what are the
current standing requirements. This is a broad
question so no need to go into detailed facts of
cases. Need to state that standing currently
exists and how it applies).
Have a position – do you agree or disagree with the
statement provided?
 Bring in case quotes and general arguments to bolster
position.
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(Consider importance of rule of law, inc as part of French’s
criteria, arguments about democracy and importance of
accountability and weigh against expense and
inconvenience on courts and P’mentary sovereignty
arguments - can qualify statement; position may be
that courts should not do something so radical as
abolish standing but that requirement should be
broadened).
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Suggest any relevant reforms;
eg. should provision be inserted into AD(JR) Act to mirror
AAT Act provision?
Should special interest test always be flexibly applied so
that even emotional or intellectual concern may in
some instances give rise to standing?
Should standing be abolished?
NB; it is also legitimate to completely disagree with the
question. Consider these issues over the coming
weeks and develop position before exam.
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Jurisdiction; s.25 AAT Act provides that jurisdiction
must be conferred by Act.
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Standing; s.27 AAT Act = person affected. Be aware of
s.27(2) and public interest bodies (policy and
problem).
The AAT can look into merits of decision with full
powers of first DM s.43 but not limited (Greenham)
and trying to arrive at correct and preferable decision
(Drake).
 Under s.43 can remake decision and substitute own.
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Jurisdiction; s.5 a decision, s.3 means a decision
(Bond) of an administrative character (general
rules) made under an enactment (Griffith
University v Tang).
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Standing; s.5 person aggrieved, s.3 includes
interests adversely affected. Public Interest
Body – North Coast or Right to Life.
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Reasons; Likely to be furnished if standing and
jurisdiction under s.13.
Ultra Vires
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s. 5(1)(d) – what power does statute confer? Could DM
be beyond scope?
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s.5(1)(b) – is there an essential procedural condition?
Has DM not complied, and is it intended this means
invalidity (Project Blue Sky)?
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s.5(1)(c) – does decision maker have jurisdiction; is
there statutory delegation or are they acting as agent
(Carltona)?
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s.5(1)(e), (2)(a) and (b) – According to subject matter,
scope and purpose of Act has decision maker taken
into account irrelevant consideration or failed to take
into account a relevant consideration?
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s.5(1)(e), (2)(c) was the power exercised for a purpose
other than that for which it was conferred? Was
there bad faith? S.5(1)(g) and (e), (2)(d).
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s.5(1)(e), (2) (g) was the decision so unreasonable that
no reasonable decision maker could have made it?
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s.5(1)(h), (3)(a) or (b) was there a particular matter
required to be established and no evidence produced
by which the DM could be reasonably satisfied that it
was so established? Was the decision made on the
basis of a fact that did not exist?
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s.5(1)(e),(2)(f) was DM exercising discretionary power
according to policy without having regards to the
merits of the particular case?
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s.5(1)(e), (2)(e) did the DM exercise personal
discretionary power at behest of another, ie.
Dictation?
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s.5(1)(a) Breach of Rules of Procedural Fairness; has it been
excluded by the decision being political (O’Shea) or a right of
appeal (Twist v Randwick)? There must be strong language and
definite intention (Miah).
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Is Procedural Fairness applicable under Kioa v West; does
decision affect a right, interest or legitimate expectation of
applicant in a direct and immediate way?
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Hearing – content determined by what is fair and just in all
circumstances – look for unfairness.
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Bias – this rule will be breached where the fair minded lay person
might have a reasonable apprehension of bias (Laws).
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Remedies; s.16 equating with prerogative writs. Discretionary.
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Jurisdiction; S.75(iii) and s.75(v) of
Constitution
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Standing; special interest test – ACF.
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There is no common law right to reasons
under the decision in Osmond. Although the
decision in Cypressvale includes the provision
of reasons in the duty to act fairly.
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In relation to the grounds of review under Common Law, the
analysis in relation to the grounds of review under the
AD(JR) Act will be adopted subject to the qualification that
they will be discussed in terms of jurisdictional error. The
prerogative writs under s.75(v) are only available for
jurisdictional error. There were initially distinct categories of
jurisdictional error and non-jurisdictional error at Common
Law but decision in Anisminic and Craig make it clear that all
errors of law are now jurisdictional.
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In relation to no evidence, there must not be any evidence.
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In relation to simple ultra vires, it will be determined on basis
whether jurisdictional fact necessary to the exercise of
power existed but it is not always easy to determine a
jurisdictional fact (Timbarra).
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Remedies – s.75(v).
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Privative Clause – Plaintiff s517;
3 Steps
1. Hickman Provisos
2. Parliamentary Intention
3. Not effective where jurisdictional error.
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Advise X as to rights of review (AD(JR),
Common Law and Merits all apply).
Advise Y as to grounds of review (grounds
only – so no jurisdiction, standing, remedies –
but both AD(JR) and Common Law).
Advise Z as to rights to review under AD(JR)
Act (advise fully under AD(JR) – no C.L or
merits).
Advise B as to rights to judicial review (C.L
analysis and AD(JR)).