Groves, Matthew --- "Standing and Related Matters" [2010] AdminRw 12; (2010) 59 Admin Review 62

• Standing and related matters
• Standing in judicial review
• A duty of consultation
• Fair outcomes in judicial review

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Standing and related matters

Dr Matthew Groves^[1]

Standing in judicial review

Although the last 30 years have witnessed an explosion of administrative review, Australia has not developed a culture of public interest litigation. One reason for this is that the rules of standing in judicial review retain some restrictive elements that make it difficult for representative groups to challenge government decisions. The requirement that, to have standing, a complainant must be able to show a special interest or be aggrieved by a decision does not equate with even the strong views or commitments of a group.^[2] As a consequence, the special interest test has yielded uneven results in environmental cases—particularly for representative bodies that seek to challenge decisions concerning their local area. Sometimes the courts accept that such groups have standing^[3]; sometimes they do not.^[4] These disparate results led one state court to suggest that some lower courts have ‘run ahead of both High Court authority, and of principle’.^[5] Justice Kirby has said the High Court should review the environmental cases in order to determine the correct approach to standing.^[6]

Although the High Court has not to date taken up that suggestion, it does appear that any reform to standing will have to come from the courts. The Australian Law Reform Commission’s repeated recommendations to relax standing tests and to introduce more uniformity in the various statutory tests have not been accepted by government.^[7] As a result, people seeking to vindicate their interests might have to navigate their way through the various ‘interested’ or ‘affected’ or ‘aggrieved’ standards, depending on the statute under which a matter is raised. This is unsatisfactory and undermines moves to simplify access to government.

A duty of consultation

The difficulties representative groups continue to face in the law of standing are reproduced in the requirements for natural justice. The rules of natural justice do not apply to decisions that affect the public at large, as opposed to individuals or particular groups.^[8] In the absence of any duty to provide natural justice—in the form of notice of a proposed decision and an opportunity to comment—it is difficult for representative groups and public interest bodies to participate in many decisions of broad public importance. There is, in effect, no duty of consultation on governments and their agencies. One consequence of this is that administrative rights often do not extend to decisions of general public importance.

The United Kingdom has adopted a novel solution in order to manage the increasing expectations of many people and groups in relation to participating in government decision making. The Government has adopted general guidelines for consultation that apply when no other procedures for consultation apply.^[9] Almost every government department in the nation and many agencies now follow these guidelines.^[10] The effect of the guidelines is that many decisions that might have a widespread effect, and that in Australia would be categorised as ‘policy’ or ‘political’ in character, are open to public comment as a matter of course. No Australian government has taken this approach, although some individual agencies have done so.

Fair outcomes in judicial review

The High Court has declared that s 75(v) of the Constitution does not enable the judicial branch of government to impose notions of good administration and other normative ideas on the executive branch of government.^[11] Under this approach the courts may enforce legal but not other values in their judicial review jurisdiction. Tribunals are not subject to the same constitutional limitations, so their focus on reaching the correct or preferable decision allows them to take account of principles of good administration such as consistency and fair outcomes. This is territory Australian courts cannot enter.

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^[1] Associate Professor, Law Faculty, Monash University.

^[2] These are liable to be branded as merely emotional or intellectual concerns, which are clearly insufficient to establish standing: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530–1.

^[3] North Coast Environmental Council Inc v Minister for Resources [1994] FCA 1556; (1994) 127 ALR 617.

^[4] Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114; (2006) 94 SASR 357; Friends of Elliston—Environmental & Conservation Inc v South Australia [2007] SASC 19; (2007) 96 SASR 246; Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615; (2007) 162 FCR 313.

^[5] Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 141 LGERA 106, 112 (Wheeler JA).

^[6] South-West Forest Defence Foundation Inc v Department of Conservation and Land Management [1998] HCA 34; (1998) 72 ALJR 837, 839.

^[7] Australian Law Reform Commission 1985, Standing in Public Interest Litigation, Report no. 27, ALRC, Sydney; ALRC 1996, Beyond the Door-keeper: standing to sue for public remedies, Report no. 78, ALRC, Sydney.

^[8] The authorities are usefully summarised in Geelong Community for Good Life Inc v EPA [2008] VSC 185 at [21]–[29] (Cavanough J).

^[9] See www.berr.gov.uk/files//file47158.pdf, viewed 28 October 2008.

^[10] The list of departments and agencies that observe the guidelines is available at www.berr.gov.uk/whatwedo/bre/consultation guidance/page44420.html/consultation guidance/page44420.html, viewed 29 October 2008.

^[11] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2002] HCA 28; (2003) 213 CLR 1, 12 (Gleeson CJ).