The Evolution and Reform of Standing in Australian Administrative Law
| Date | 01 June 2016 |
| Author | Matthew Groves |
| DOI | 10.1177/0067205X1604400201 |
| Published date | 01 June 2016 |
| Subject Matter | Article |
AUSTRALIAN ADMINISTRATIVE LAW
Matthew Groves*
ABSTRACT
The standing rule in administrative law requires parties to demonstrate that they have
a special interest in the subject matter of the decision they wish to challenge in judicial
review proceedings. This article examines the problems the special interest requirement
has presented in judicial review, particularly to environmental groups, and how it has
been liberalised in lower courts. The article then examines several possible reforms to
standing and concludes that a standing rule should be retained but relaxed.
I INTRODUCTION
Standing in judicial review proceedings is a stepping stone on which all else depends.
While other barriers can impede a case, such as costs or a lack of reasons,1 standing can
preclude litigants from gaining remedies against unlawful decisions. The restrictive
common law approach was affirmed at the start of the 20th century,2 and refined by the
High Court in Australian Conservation Foundation v Commonwealth.3 That approach has
been slowly chipped away in the lower courts, which have taken a more relaxed
approach to the standing of associations and representative groups in environmental
cases.4 But standing principles remain, and they remain unclear and very discretionary.
The High Court did little to resolve those uncertainties in Argos Pty Ltd v Corbell.5 The
Court held that a business owner who might suffer loss or detriment due to the greater
competition that might result from an administrative decision could be a ‘person
aggrieved’ for standing rules. This finding clarified standing in commercial cases but
gave little general guidance about standing.
This article examines the modern evolution of standing principles and how they
might be reformed. The article first considers the accepted reasons for standing rules
* Law Faculty, Monash University.
1 Reasons and standing are closely linked in statutory judicial review because judicial review
statutes typically grant a right to obtain reasons to those with standing. See, eg, Administrative
Decisions (Judicial Review) Act 1977 (Cth) s 13(1) (‘ADJR Act’), which enables people entitled
to make a substantive application for review of a decision to seek reasons for that decision.
2 The key case was Boyce v Paddington Borough Council [1903] 1 Ch 109 (‘Boyce’).
3 (1980) 146 CLR 493 (‘ACF’).
4 This subtle circumvention of ACF can be traced to North Coast Environment Council Inc v
Minister for Resources (1994) 55 FCR 492 (‘North Coast’), discussed in Part V.
5 (2014) 254 CLR 394 (‘Argos’).
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and then the key modern Australian case which upheld the ‘special interest’ requirement
for standing.6 The article also explains how the special interest requirement has been
eroded by lower courts. The final parts of the article conclude that some form of standing
requirement should remain. It considers the different forms that might take, such as the
wider standing test of the Administrative Appeals Tribunals Act 1975 (Cth) or the more
flexible common law of the United Kingdom. The article argues that a standing
requirement should remain in judicial review but it should not be a demanding or
obstructive one.
II WHAT IS THE PURPOSE OF STANDING?
Douglas argued that the reasons for standing are generally assumed rather than
explained and the few instances where courts try to justify standing are ‘rarely
persuasive’. 7 Douglas was right because courts typically presume, or note without
explanation, the rationale of standing.8 Some reasons for standing rules are, however,
apparent. One is functional. According to one member of the Federal Court, standing
rules are:
designed to ensure that applicants only litigate their own business. For an applicant to have
standing demands a connection between the applicant’s interests and the relief sought. As
a general rule the Court will not recognise busybodies who interfere in things that do not
concern them.9
Such statements indicate that standing rules keep people within their own business
and outside that of others. The role of the courts is to maintain those boundaries. This
conception of standing is both limited and limiting. It is limited because the main role of
the courts is to ensure that litigants do not unduly trespass into matters that do not affect
them in a direct or sufficient way.10 It is limiting because the requirement of a direct or
sufficient interest draws attention to the effect of a decision upon the person seeking to
challenge a decision, rather than the lawfulness of that decision. An unlawful decision
may therefore stand because of standing, or rather the failure of a party to satisfy the
court that it is sufficiently affected by the decision.11
That possibility seems at odds with the basis upon which Australian courts have
explained the entrenched nature of their supervisory judicial review jurisdiction, which
6 ACF (1980) 146 CLR 493.
7 Roger Douglas, ‘Use of Standing Rules 1980–2006’ (2006) 14 Australian Journal of
Administrative Law 22, 23.
8 See, eg, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd
(2000) 200 CLR 591, 599 [2]. Gleeson CJ and McHugh J stated that standing rules were ‘based
upon considerations of public policy which the legislature would not lightly disregard’ but
did not identify any such considerations.
9 Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs
(2006) 90 ALD 285, 294 [46] (Graham J).
10 In such cases, there is often no real controversy between the parties: Re McBain; Ex parte
Catholic Bishops Conference (2002) 209 CLR 372, 459 [253] (Hayne J).
11 This possibility has long concerned English courts. See, eg, Inland Revenue Commissioners v
National Federation of Self-Employed and Small Businesses [1982] AC 617, 644 (Lord Diplock);
AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, 951–2 [169]–[170] (Lord Reed);
Walton v Scottish Ministers [2012] UKSC 44, [94] (Lord Reed).
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is to detect and correct unlawful executive action.12 The High Court has stressed that its
constitutionally entrenched judicial review jurisdiction cannot be narrowed or excluded
by legislation,13 including ostensibly procedural limitations which may have the same
effect.14 The same general rules now apply to the supervisory jurisdiction of State
Supreme courts.15 These developments emphasise that access to the courts is a central
part of our constitutional arrangements. Standing rules seem at odds with these
principles because they suggest parliaments cannot restrict access to judicial review but
the courts can. The theoretical basis of standing rules would be stronger if the courts
explained clearly why standing rules should remain and how the Australian Constitution
prohibits parliaments from restricting access to the courts yet allows the courts to do so
in the guise of standing.
In Attorney-General (Cth) ex rel McKinlay v Commonwealth,16 Murphy J suggested that
standing could improve the quality of public law litigation because parties with a clear
personal stake in a case are more likely to gather and present the best possible case.17
That possibility was questioned by Wilcox J in Ogle v Strickland,18 who wondered if
matters of self-interest were stronger than the ideological motivations of many public
law claimants. Wilcox J explained that:
to assume that competitive instincts are aroused only by concern for material wealth would
be to ignore history. Much of the progress of mankind has been achieved by people who
have sacrificed their own material interests in order to champion ideals against fierce
resistance. The recent Australian experience is that, in cases where ideologues have been
able to gain access to the courts, cases have been hard fought and professionally
conducted.19
Another reason for standing rules arises from the traditional role of the Attorney-
General as guardian of the public interest. As that guardian, an Attorney-General does
not need to show the special interest or damage normally required to establish
standing.20 No such presumption applies to private parties, whether the party is an
individual or a representative group. The standing requirements applicable to private
12 The High Court has made clear this jurisdiction exists to control unlawful executive action.
See Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [100] (French CJ, Gummow, Hayne,
Crennan, Kiefel and Bell JJ), where it was held legislation preventing courts from issuing
relief against jurisdictional error was beyond the legislative capacity of State parliaments.
Gageler J has wondered if more underpins this principle: Stephen Gageler, ‘Impact of
Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian
Journal of Administrative Law 92, 104–5.
13 The most obvious example is Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
14 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.
15 By reason of Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
16 ...
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