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(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING

JUSTICIABILITY
JUSTICIABILITY  2 reasons why a decision might not be suitable for judicial
 Justiciability = suitability of an exercise of Executive power review:
for judicial review.  Constitutionality: Courts should not encroach on areas
 If non-justiciable, court won’t even review legalities. in which the legislative & executive branches of govt are
 It is a limit to the rule of law, which suggests no such responsible.
immunity from review.  Judicial competence: (a) Judges do not have training for
 Generally, political/policy decisions are non-justiciable. certain decisions, and (b) courts are better at applying
 The ADJR Act displaces the common law test for clear pre-determined standards to facts (ie. determinative
justiciability. Rather, any “decision of an administrative decisions) than balancing a multitude of interests (ie.
character made under an enactment” can be reviewed. polycentric decisions).
 Key factors of justiciability:
 Position of decision-maker & nature of power?
REMOVAL OF AUTOMATIC IMMUNITIES FROM  Individualised effect?
REVIEW  Policy decision / Determinative decision?
 Policy decision = weighing of many competing
Status of Decision-maker policies. Largely a matter of merits + Courts lack
 There is no automatic immunity from review merely because expertise + Usually politically sensitive  non-
the decision was made by Ministers (Padfield; Murphy Ores), justiciable.
Crown’s Representative (Re Toohey; FAI v Winneke) or  Determinative decision = application of reasonably
Cabinet (SA v O’Shea; Peko-Wallsend). clear standard to facts as found. Court has expertise
 SA v O’Shea  justiciable.
 *GG, acting on Cabinet’s advice, decided not to release a  Subject matter?
prisoner.  Ground of Review?
 The fact that it was in substance a Cabinet decision did
not, in principle, affect justiciability  prisoner could Examples of non-justiciable decisions
challenge on ground of procedural fairness.  CCSU v Min Civil State: National security decisions are non-
 But – Cabinet decisions are usually political  may justiciable.
impose substantive limits on review.  *Minister decided (under prerogative power) to ban
 [Parole Board hearing & Cabinet decision were parts of a unionship at a spy centre without prior consultation.
single decision-making process  since O had a fair  *There was established practice that the union will be
hearing before the Parole Board, and no new material was consulted on important alterations in the terms &
before the Cabinet, O had received a fair hearing overall conditions of staff employment  legitimate expectation
 O failed.] of consultation.
 *Union sought review on procedural fairness ground.
Review of Statutory powers  The decision is not immune from judicial review simply
 Fettered powers are always reviewable (for “ultra vires”). because it stemmed from a prerogative power.
 Padfield: A formally unfettered power must be used in a way  But the Minister’s decision was in the best interests of
which is consistent with the purpose of the Act, as determined national security  non-justiciable.
by courts  unfettered discretions may be justiciable.  Minister for Arts v Peko-Wallsend: Polycentric (ie. complex
policy) decisions, & treaty implementation decisions, are non-
Review of Prerogative powers justiciable.
 Prerogative powers = conduct of relations with foreign  *PW held mining interests in land.
powers, extradition decisions, power to grant pardon, power to  *Cth cabinet decided (under prerogative power) to place
proceed by ex-officio indictment, power of AG to the land on the World Heritage list, which would have the
grant/withhold AG’s fiat, appointment of judges/QCs. effect of confining mining operations.
 Historically, courts could examine whether a prerogative  *PW commenced proceedings on the basis that there was
power exists, but could not review the manner of its exercise. denial of procedural fairness.
 CCSU case; Peko-Wallsend: Prerogative powers are not  The mere fact that a decision is made by Cabinet, and/or
automatically immune from judicial review. is an exercise of prerogative power, does not exclude
 But some decisions made in the exercise of such powers judicial review.
may be immune from review because of their subject  The Cabinet’s decision was non-justiciable, because:
matter.  Subject-matter: The decision was made in the
implementation of a treaty;
Review of Contractual powers  Polycentric decision: In making the decision, Cabinet
was weighing up effects on: PW, international
 Caselaw: A government contract is governed by the same relations, treaty obligations, environmental
private law as any other contract  govt contracts do not considerations, impact on Aboriginals, economic
involve exercise of public power  not reviewable. effect on Australia. This is a complex political
 But – can argue that the govt is increasingly using contractual decision best left to Cabinet.
techniques to implement its policies  should be reviewable.  [Criticise: The ground argued was procedural fairness,
Also, voluntary contracts are very similar to statutory rights. not a policy issue. This was all the court had to decide 
the fact that the decision was a policy one was irrelevant.]
 Church of Scientology v Woodward
(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING
 National security decision made under a limited power Commercial Interests
(ie. power to collect information “relevant to security”  R v Comm of Customs exp Cooke: Courts are unwilling to
only), was justiciable. allow judicial review to be used as a tool to prevent/hinder
 Coutts v Cth competitors.
 Decision made under employment power for armed  Pl’s financial interest was burdened by the decision more
services (formerly PP, but now in regulations) was non- than other members of the public.
justiciable.  But motivation of Pl was to simply put financial strain on
 Re Ditford; exp DCT its competitors  commercial interest is not enough.
 Decision made under Bankruptcy Act, to extradite a  Bateman’s Bay v Aboriginal Community BF: The Court
person from Germany back to Australia, was justiciable appears willing to give standing to a Pl who shows a sufficient
(despite subject matter being foreign relations). effect on his interests, even where the interest is commercial.
 McCrae v A/G  *Ap (Bateman) & Res were competitors in a limited
 Decision not to re-appoint certain magistrates was market (funeral benefits to abo’s within NSW).
justiciable.  *Ap (Council) granted Ap (Bateman) approval which
 Waters v A/G caused financial detriment to Res’ commercial interests.
 Decision not to appoint a QC despite recommendations,  This case involved a “purely legal issue” in which the Pl
was non-justiciable. had a clear “special interest” over that of the public at
large  standing.
Criticism on Justiciability
 Peko-Wallsend is wrong. Standing in Public Interest Litigation
 The Pl only asked the Court to look at whether there was  If the whole community is affected, who has a “special
denial of procedural fairness. The Court could do this interest”?
without redetermining the complex policy decisions.  Attorney-General’s role:
Therefore, the Court’s reason for choosing not to review  The A/G has standing to sue to protect a public right.
the decision should not be the fact that the decision was a  The A/G can give a fiat (consent to relator action). A/G’s
complex policy one. decision whether to give a fiat is non-justiciable.
 The Court essentially said that since the decision involved  A body may bring a public interest action, if the body has a
merits, it cannot review anything, even the legalities. “special interest” (for common law review) or is a “person
 Also, courts engage in complex policy decisions all the aggrieved” (for ADJR review).
time! Eg. Teoh.  Although judges say that standing under the ADJR Act is
 We should get rid of justiciability, and just rely on legalities/ to be construed liberally, in line with the remedial intent
merits distinction to determine what courts can review. of the Act, they have not taken a more open approach
(probably because the common law itself has become
more liberal in granting standing)  no real significant
STANDING distinction between CL & ADJR standing.
 Eg. Judges cite ADJR standing cases to support
 Standing = question of who can bring an action to challenge
common law standing.
the administrative decision.
 Standing requires a “special interest”: the Pl’s interests must
Basic position
be affected in a way over & above the way the decision affects
the public.  ACF v Cth: A mere intellectual/emotional concern, or a strong
belief that the law should be observed, is not enough to give
Personal/Private Standing standing.
 *Pl challenged Minister’s approval of a Qld tourist
 A plaintiff may have standing if the decision directly
development before making a final Environmental Impact
interferes with his common law rights to life, liberty &
Statement (which was clearly in breach of admin
property.
procedures).
 Howes v Vic Railways: Actual financial loss (eg. lowering of
 ACF had no standing.
property values) may give standing.
 Gibbs: A mere intellectual/emotional concern, or a strong
 *Depreciation in house value due to Vic’s decision 
belief that the law should be observed, is not enough to
gave standing.
give standing… A person only has a special interest if he
 Day v Pinglen
is likely to gain some advantage (other than mere
 *Building of townhouses that would block Pl’s view of
satisfaction) if his action succeeds, or to suffer some
Sydney Harbour  gave standing.
disadvantage (other than grievance/costs) if his action
 Exp Helena Valley v State PC: Indirect effect on a right (eg.
fails.
effect on residential amenity) may give standing.
 Mason: A Pl will generally have standing, when he can
 *SPC decided that rezoning land from “Rural” to
show actual/apprehended damage to his proprietary
“Urban” was not a “substantial” alteration to the planning
rights, business interests, or perhaps social/political
scheme  less rigorous procedures applied.
interests.
 The individuals living in land adjoining the rezoned land
had standing, because the enjoyment of their land would
Courts have developed 3 ways to distinguish ACF v Cth & find a
be detrimentally affected (even though the value of their
“special interest”/“person aggrieved” in public interest situations:
land would not be diminished).
(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING
1) Vocational Special Interest  *TPA:
 If the Pl’s vocation closely relates to the subject matter, then  s 65C(5): Where goods may cause injury, the
that Pl has a “special interest” – an interest greater than the Minister may declare the goods to be unsafe.
interest of the public at large.  s 65J: [If the Minister does so,] he must invite
 Onus v Alcoa: A Pl has standing, if there is a close relationship suppliers of goods of that kind to request the
between the Pl and the subject matter. Commission to hold a conference. The Commission
 *Aboriginal custodians of relics challenged Decision to may invite any person it “considers” as “appropriate”
allow aluminium smelter, which would interfere with to be present at the conference.
Aboriginal relics on the land.  s 65K: After the conference, the Commission must
 The custodians, despite having no proprietary interest in recommend to the Minister.
the land, had standing.  *Minister declared that certain smokeless tobacco
 Stephen: “special interest” involves an assessment of the products were unsafe (pursuant to s 65C(5)).
importance of the Pl’s concern with, & the closeness of  *US Tobacco requested a conference under s 65J.
the Pl’s relationship to, the subject matter.  *Commission invited AFCO to attend the conference
 Sutton v Warringah (under s 65J), as its presence was considered by the
 *Councillor challenged Council’s unlawfully decision to Commission to be “appropriate”.
delegate powers to a sub-committee.  *At the conference, AFCO challenged US Tobacco’s
 Councillor was granted standing to challenge the material & views.
decision.  *US Tobacco sought review of the Minister’s decision to
 Ogle v Strickland declare the goods unsafe & therefore call the conference.
 *Customs Regulation 13: A film shall not be registered if,  *AFCO sought to be joined in the proceedings under s 12
in the opinion of the Board, the film is blasphemous. ADJR Act.
 *Censorship Board approved registration of an imported  The mere fact that AFCO made submissions to ban the
film. goods is not enough, as many other organisations made
 *Priests sought review of the decision under ADJR Act. submissions too [similar to ACF].
 [The opinion of the Board is a jurisdictional fact   But AFCO has a sufficient interest, because the decision
priests are arguing that no reasonable person would have challenged has benefited AFCO in a special way… the
thought that the film was not blasphemous (a legalities special interest arose when the Commission invited
argument)] AFCO to attend conference, because AFCO can then
 Lockhart: A necessary incident of the priests’ vocation insist that the Commission take into account its views in
was to repel blasphemy  they were “persons the conference when making a recommendation.
aggrieved”.
 Also: If the Board found that the film was 3) Representative Standing
blasphemous, the importers would clearly be a  A body which is best placed to represent the interest of a
“person aggrieved” [pty interest]. So, if the Board section of the community that is specifically affected by the
found that the film was not blasphemous, somebody decision, has standing to challenge it.
should have standing too  priests must have  Shop Distributive v Min Industrial Affairs: An Union has the
standing (because nobody else would have standing). same interests as its members.
 Fisher: Concerns of committed Christians in general were  ACF v Minister for Resources
only intellectual/emotional, but the priests’ vocation  *Minister issued a 17 yr woodchip export licence, which
extended their interest beyond that. would involve logging within the National Estate.
 [But consider – what if there was no organised Christian  *Minister had to decide if there was a feasible & prudent
group? Then maybe no standing. Is this fair?] alternative to logging within this area.
 *ACF argued Min didn’t consider this.
2) Participation in a Statutory Process (“Objector Status”)  ACF had a special interest in relation to the particular
 A person who has participated in a statutory process has a forests under threat (unlike in the 1st ACF case), because:
right to see that the process is conducted according to law.  The forests were part of the National Estate  were
 Sinclair v Mining Warden: Participation in a statutory process of national interest  ACF, a national organisation,
will give standing to challenge the conduct of those had a special interest in their preservation.
proceedings.  Public perceptions of the need to protect the
 *Regulations required the Warden to hear any objections environment had increased  community expected a
to applications for a sand mining licence, before body like the ACF to concern itself in this issue.
forwarding a recommendation to the Minister.  **ACF was now established as the main body for
 *Pl presented strong objections, but the Warden did not protecting the environment. It was recognised by
consider them. govt & received govt funding (though still a private
 Standing was taken for granted. body). It was not a busybody. If the ACF does not
 Gibbs: Distinguishable from ACF v Cth, because the have a special interest in the forests, there is no
admin procedures violated in ACF (though derived from reason for its existence.
statute) were not themselves of statutory force & hence  North Coast Env Council v Min Resources: The more
conferred no rights sufficient for standing. [not organised & recognised the body is, the more likely it can get
convincing] representative standing.
 [Appears that you need objection in person, rather than  *Minister decided to grant an export licence to a
mere written objection, to have standing.] sawmilling co, for the export of woodchips from NSW
 US Tobacco v Min Consumer Affairs: A Pl has standing if the forests.
Pl participated in a statutory process that leads up to the  *NC sought reasons for the Minister’s decision to grant
decision being challenged. the licence, under s 13 ADJR Act.
(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING
 *Issue = Whether NC was a “person aggrieved” by the   RTL has no greater interest than any ordinary
Minister’s decision (ss 13, 5). public member. There is only intellectual,
 Factors suggesting special interest and therefore “person philosophical & emotional concern. There is no
aggrieved”: advantage likely to be gained, or disadvantage likely
 NC is the peak environmental organisation in the NC to be suffered, in the proceeding. The most it can
region. Its activities relate to the areas affected by the achieve is satisfaction of correcting a wrong decision
licence; & winning a contest.
 Cth gave regular financial grants;  The fact that the govt does not fund RTL is not a negative
 State allowed NC to represent environmental factor. [presumably because otherwise, the govt can
concerns on advisory committees; manipulate bodies’ actions against them by ceasing to
 NC had conducted projects & conferences, & made fund them]
submissions on environmental matters  NC had a
keen interest in woodchipping operations for a # of Analysis
yrs;  Can interpret this case as saying: Mere special interest is not
 There is no other conservation body with a greater enough; must have a special interest within the purposes of
interest/commitment to the issue  NC is well- the relevant Act.
placed to represent the public on conservation issues.  Right to Life is hard to reconcile with other standing cases:
 [Note: Although govt funding is a factor in favour of  If apply North Coast, then RTL should have standing
standing, lack of funding should NOT disqualify because there is no-one better to represent the public’s
standing. If only govt funded bodies have representative interests. Lack of govt funding should not matter.
standing, then effectively excluding all representative  Analogous to Ogle v Strickland, because RTL’s vocation
bodies that the govt does not financially influence.] is to defend the right of life against abortion.
 Executive Council of Australian Jewry v Scully: The  Also, the case gives a lot of judicial discretion as to standing.
representative body need not have its operations confined to
the geographical region affected by the decision. Reform
 *S distributed anti-Jewish material in Launceston,
Tasmania.  ALRC 1985 Report: Recommended abolishing standing
 *Council & Exec VP of Council in Sydney made a requirements, leaving courts with simple discretionary power
complaint to HREOC. to exclude Pls who were “merely meddling”.
 Someone in Sydney can represent Tasmanian Jews. It is  ALRC 1996 Report: Any person should be able to commence
artificial to separate a State body from a National body. & maintain public law proceedings, unless:
 the relevant legislation indicates a contrary intention; or
 the litigation would unreasonably interfere with the
Statutory “Zone of interests”
ability of the person having a private interest in the
 Statute can modify the common law standing position. matter, to deal with it as he wishes.
 Courts are increasingly interpreting standing according to the  Rationales underpinning current “special interest” rules:
purpose of the statutory scheme (eg. “Who did P intend to be  Decreases review of decisions that fall within the sphere
able to challenge this decision?”, “What interests was it of govt.
intended to protect?”).  [but – court can refuse to consider political questions
 Under the “zone of interests” test, the Pl’s concern has to be on basis that they are non-justiciable]
within the concerns of the Act in order to have standing.  Prevents litigation brought only to delay/frustrate
 Right to Life Assn v Dept of Health: Pl has standing only if competitor’s commercial arrangements.
there is a relationship between (a) the subject matter of the  [but – in practice, competitors can delay competitor
decision (from the relevant Act’s objects), and (b) the matters by arguing anything, not just standing. Also, court
that the Pl alleges. has general powers to manage the litigation process]
 *Permission granted for importation & clinical trial of an  Ensures capable plaintiffs represent the public interest, &
abortion inducing drug was subject to the drug being used no futile litigation.
in compliance with legislation.  [but – plaintiffs who have no interest in the matter
 *Therapeutic Goods Act regulations Item 3(e)(ii): The may still be capable. Also, court can address this
drug cannot be used, if the Secretary becomes aware that issue by managing litigation process]
the trial would be contrary to the public interest.  They act as a filter. If abolish, then a flood of litigants
 *RTL advised Secretary that the trials were contrary to will go to court  undermines certainty of govt decision-
State laws against procuring abortions, and were thus making.
contrary to the public interest. But Secretary refused to  [But – (a) in practice, costs & risks of pursuing a
stop the trials. claim is enough deterrence; (b) if illegal, why should
 *RTL sought review of the decision not to stop 3 trials. it go unchallenged?; (c) TPA & NSW Environmental
 RTL was not a “person aggrieved” by the decision: legislation had open standing, yet there were not
 The Secretary’s decision was made under the TG excessive litigants].
Act. Its objects are to establish “quality, safety,  (not mentioned:) There are cases where unlawful
efficacy and timely availability of therapeutic administrative action is not of public concern.
goods”. RTL’s arguments were not based on quality  [but – any kind of unlawfulness by public bodies is
etc; rather, they were based on the trials being automatically of public concern]
contrary to law & loss of life.  Arguments in favour of relaxing/abolishing standing rules:
 Not sufficient that RTL was incorporated since 1984,  They inappropriately impose private litigation rules on
is a successor, and has objects concerned principally matters of public law. Should not need to show private
with protection of life from moment of conception. grievance in order to remedy a public wrong.
(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING
 Public illegality is a matter of public concern  should
not limit who can complain.
 Against rule of law.
 Substantive issues are not looked at by courts.
 Inconsistent.
 “special interest” is meaningless by itself – it is a flexible
concept that gives courts too much discretion.

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