LLB230 Lecture Notes - Lecture 6: Precedent, Australian Conservation Foundation, Joinder
WEEK 6: Standing; Locus Standi
- person must have a recognised interest/legal interest
oconcrete matter may be justiciable
- judicial review can be granted under the ADJR Act
- and through common law jurisdiction of the High Court or Federal Court
oCth Constitution s 75(v)
- State: inherent CL jurisdiction in state SC (in territories it’s created under
statute)
- Can be brought directly to the HC jurisdiction – s 75(v)
oMandamus is an order to do something
oGrant remedies sue or being sued
- Federal Court Judiciary Act s 39B(1)
oEquivalent jurisdiction to s 75(v) in order to hear same matters as the HC
All statutes come under the constitution
- can’t take away any HC power cause it’s under the Const
- FC is under statute so you can affect it’s jurisdiction powers with statute
Grounds for review; ultra vires
- use power within constraints but for wrong purpose
ohas power to ensure good use of pathway but use it to allow pathway
restaurants
Constitution s 75 remedies
- constitutional writs
- certiorari
- declaration
ADJR Act s 16(1) in essence the remedies are similar to the HC and FC remedies
ADJR Act Schedule 1
- ‘special cases’
- exclusions from the statutory review scheme
Federal Court’s associated and accrued jurisdiction
- SM and circs where it’s more efficient to deal with those cases in the same go
oFacts situation
oState matters
oCL doctrine
- Only matters in which Cth could have jurisdiction anyway i.e. license allowance
case of illegal logging; inappropriate logging
Justiciability
- non-justiciability is not judicially reviewable
-McBain
Standing
What is Standing?
The right to commence legal proceedings in a court or tribunal
A right to be heard? But who is entitled?
Interest required. 'Locus standi'
COMMON LAW TESTS
The following cases outline the core principles of standing in the common law. There is
no singular 'standing test'.
'ACF'
Issue: Did ACF have standing to seek a declaration & injunction to prevent a decision to
approve a tourist resort without complying with the environmental impact process?
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Principle: No. For a party to have standing it must have a 'special interest in the subject
matter of the action'. This interest must be more than a 'mere emotional or intellectual
concern'.
FINDING: ACF did not have a special interest despite its objectives relating to
environmental protection, the fact that it had made submissions and that some of its
members may have had an individual interest in the matter.
Australian conservation foundation v commonwealth (1980) 146 CLR 493
'Onus'
Issue: Did a group of indigenous Australians have standing to challenge a decision to
allow an aluminium smelter on land that contained some of its relics?
Principle: Yes. The group had an interest in the matter that was greater than other
members of the public. They were custodians of the relics, which had cultural and
spiritual importance and were used for education purposes.
Onus v Alcoa of Australia ltd (1981) 149 CLR 27
'Shop distributive'
Issue: Did a union representing retail workers have standing to challenge a decision to
extend trading hours?
Principle: yes. Any alteration of trading hours necessarily affects the terms of the
workers' employment. Therefore, the union has a special interest in the subject matter.
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA)
(1995) 183 CLR 552
Remedies
In most 'standing cases' the remedy being sought are equitable remedies, which are
injunctions or declarations.
Whilst the standing tests may differ according to the remedy sought, these core
principles are relevant to all the remedies.
We will look at this in more detail in week 9
Statutory Tests for Standing - The AAT
Merits review
The Administrative Appeals Act 1975 (Cth)
s 27(1)
(1) Where this Act or any other enactment (other than the Australian Security
Intelligence Organisation Act 1979 ) provides that an application may be made to the
Tribunal for a review of a decision, the application may be made by or on behalf of any
person or persons (including the Commonwealth or an authority of the Commonwealth
or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the
decision.
Note: The enactment may be regulations made for the purposes of subsection
25(2) (review of decisions made in the exercise of powers conferred by a Norfolk
Island enactment).
(2) An organization or association of persons, whether incorporated or not, shall be
taken to have interests that are affected by a decision if the decision relates to a matter
included in the objects or purposes of the organization or association.
(3) Subsection (2) does not apply in relation to a decision given before the organization
or association was formed or before the objects or purposes of the organization or
association included the matter concerned.
Merits review
The Administrative Appeals Act 1975 (Cth)
s 30(1A)
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find more resources at oneclass.com
Document Summary
State: inherent cl jurisdiction in state sc (in territories it"s created under statute) Can be brought directly to the hc jurisdiction s 75(v: mandamus is an order to do something, grant remedies sue or being sued. Federal court judiciary act s 39b(1: equivalent jurisdiction to s 75(v) in order to hear same matters as the hc. All statutes come under the constitution can"t take away any hc power cause it"s under the const. Fc is under statute so you can affect it"s jurisdiction powers with statute. Grounds for review; ultra vires use power within constraints but for wrong purpose: has power to ensure good use of pathway but use it to allow pathway restaurants. Constitution s 75 remedies constitutional writs certiorari declaration. Adjr act s 16(1) in essence the remedies are similar to the hc and fc remedies. Special cases" exclusions from the statutory review scheme.
