Any person or organisation seeking to challenge executive government decisions or enforce public duties must demonstrate either interference with a private right or special damage peculiar to themselves; a genuine concern for the environment or public interest, without more, is insufficient.
Later decisions that cite Australian Conservation Foundation v Commonwealth
Decisions cited by Australian Conservation Foundation v Commonwealth
AUSTRALIAN CONSERVATION FOUNDATION v. THE COMMONWEALTH (1980) 146 CLR 493
Administrative Law - Courts
High Court of Australia
Aickin J.(1);
Gibbs(2), Stephen(3), Mason(4) and Murphy(5) JJ.
CATCHWORDS
Administrative Law - Locus standi - Commonwealth legislation for protection of environment - Administrative procedures - Development application - Draft environmental impact statement - Conservation group commenting thereon pursuant to administrative procedures - Alleged non-compliance with administrative procedures - Whether conservation group entitled to challenge validity of decision - No private right violated - Absence of special damage - Environment Protection (Impact of Proposals) Act 1974 (Cth), ss. 5-10.Courts - Practice and procedure - Locus standi - No private right violated - Absence of special damage - Whether interest in preservation of environment a sufficient interest.
HEARING
Melbourne, 1978, December 13; 1979, February 16.DECISION
1979, February 16.2. The plaintiff, Australian Conservation Foundation Incorporated, is a body corporate under the laws of the Australian Capital Territory. The second defendant, the Honourable John Howard, is the Treasurer of the Commonwealth of Australia, the third defendant, the Honourable Ray Groom, is the Minister of State for Environment, Housing and Community Development, the fourth defendant, the Honourable Ian Viner, is the Acting Minister of State for Environment, Housing and Community Development and the fifth defendant, the Reserve Bank of Australia, is incorporated under the provisions of the Reserve Bank Act 1959-1973 (Cth). (at p496)
3. The statement of claim alleges that the third and fourth defendants are
the Ministers of State for the time being administering
the Environment
Protection (Impact of Proposals) Act 1974 ("the Act"). Paragraph 6A of the
statement of claim sets out the "objects
of the plaintiff", an expression
which I take to mean the
objects for which it was incorporated pursuant to the
relevant law of the
Australian Capital Territory. It is sufficient to quote
the first two paragraphs of those objects which are as follows:
"(i) to make every effort to ensure that the air, land and waters of
Australia are used with wisdom and foresight and that competing
demands upon
them are resolved in the best long-term interests of the nation;
(ii) to foster the conservation of the distinctive vegetation and fauna
and important natural and archaeological features of
Australia."
The remaining objects are concerned more with powers by which the first two
objects may be carried out or achieved and with the means
for carrying out and
achieving such objects. Paragraph 6B states that the plaintiff has some 6,500
members and that in the furtherance
of its objects has made submissions to
governments and public authorities in respect of environmental matters
including comments
made pursuant to the provisions of the Act and the
"Administrative Procedures" approved under the Act. Paragraph 6C states that
the
plaintiff has been paid annual grants by the Commonwealth which have been
authorized by the Minister of State for Environment, Housing
and Community
Development for its purposes "including for the making of comments by it as an
interested person in respect of draft
environmental impact statements made
pursuant to the provisions of the Act and of the Administrative Procedures".
(at p497)
4. Paragraph 7 of the statement of claim states that on 13th January 1978 pursuant to par. 3.1 of the Administrative Procedures the third defendant directed the preparation, obtaining and submission to him of an environmental impact statement in relation to the making of a decision by the fifth defendant whether to approve "exchange control transactions" in relation to the proposal by Iwasaki Sangyo Company (Australia) Pty. Ltd. ("Iwasaki") to establish and operate a resort and tourist area at Farnborough in the State of Queensland ("the proposal"). The expression "exchange control transactions" is not explained but I take it to mean transactions which require the consent of the Reserve Bank under the Banking (Foreign Exchange) Regulations. (at p497)
5. Paragraphs 7A-7Q, inserted by amendment, are as follows:
"7A. On or about 28th April 1978 Iwasaki applied to the Defendants or one
or other of them for approval of exchange control transactions
in respect of
the carrying into effect of the proposal.
7B. The said area of Farnborough the subject matter of the proposal
comprises both privately owned and public lands over which
members of the
public, including some members of the Plaintiff, have access and rights of
access and use which would be detrimentally
affected by the implementation of
the proposal.
7C. On or about 23rd June 1978 and pursuant to the Administrative
Procedures Iwasaki published what purported to be a draft environmental
impact
statement in respect of the proposal ('the Draft Impact Statement').
7D. The Draft Impact Statement did not comply with the provisions and
other requirements of the Act and of the Administrative
Procedures and did not
at any material time constitute a draft environmental impact statement made
pursuant to the Act and the Administrative
Procedures.
7E. On or about 23rd June 1978, and pursuant to par. 6 of the
Administrative Procedures, the Draft Impact Statement was made
available for
written comment by interested persons and bodies, including written comment by
the Plaintiff.
7F. The period during which interested persons and bodies were invited to
send written comments in respect of the proposal pursuant
to sub-par. 6.3.1
(d) of the Administrative Procedures ended on or about 20th July 1978.
7G. On or before 20th July 1978 and pursuant to the Act and the
Administrative Procedures as an interested person and body invited
to send
written comments in respect of the proposal, the Plaintiff delivered written
comments in respect of the proposal ('the Plaintiff's
comments') as did other
interested persons or bodies who also made written comments in respect of the
proposal.
7H. At all material times after 20th July 1978 each of Iwasaki and the
Defendants were required to comply with the Act and the
Administrative
Procedures to consider the written comments made in respect of the proposals,
including the Plaintiff's comments,
and in particular -
(a) Iwasaki thereafter was required to take the Plaintiff's written
comments into account by revising the Draft Impact Statement
and to prepare a
final environmental impact statement ('the Final Impact Statement') in respect
of the proposal; and
(b) each of the Defendants was under a duty to do all such things as could
be done by it or him for ensuring that the Final Impact
Statement in respect
of the proposal (including revisions of the Draft Impact Statement to take
into account the Plaintiff's comments
and any suggestions and recommendations
made under par. 9.3 of the Administrative Procedures) were taken into account
when making
the decision alleged in paragraph 8 hereof.
7J. In the premises and at all times since 20th July 1978 the Plaintiff
had and now has as an interested person or body a legitimate
interest or
expectation to ensure -
(a) that each of the Defendants would ensure that Iwasaki complied with
the requirements of the Act and the Administrative Procedures
alleged in
sub-par. 7H(a) hereof; and
(b) that each of the Defendants would comply with the Act and the
Administrative Procedures and discharge the duties owed by
it or him alleged
in sub-par. 7H (b).
7K. On 26th July 1978 and again on 9th August 1978, and as a person
authorised to do so pursuant to s. 10 of the Act, the Plaintiff
by notices in
writing required the thirdnamed Defendant to inform it as to what action, if
any, had been taken or was proposed to
be taken for ensuring consideration of
the environmental aspects in respect of the proposal.
PARTICULARSthe plaintiff dated 26th July and 9th August 1978 respectively.
The notices are comprised in two letters to the thirdnamed Defendant from
PARTICULARSuntil 11th September 1978, although the decision in respect of the proposal after purported consideration of its environment(al) aspects was made by the Defendants or one or other of them prior to 30th July 1978.
The thirdnamed Defendant did not reply to the Plaintiff's said notices
6. Paragraph 8 of the statement of claim then alleges that on or prior to
30th July 1978 the second, third, fourth or fifth defendants
or the servants
or agents of the Commonwealth purported to approve the proposal or
alternatively purported to approve exchange control
transactions in relation
to the proposal. Paragraph 9 alleges that the decision was made by the
defendants or one or other of them
prior to the formulation of and without
taking into account any final environmental impact statement prepared pursuant
to the Administrative
Procedures. Paragraph 10 alleges that the decision was
invalid and a nullity by reason of the fact that the procedures provided for
in the Act and the Administrative Procedures were not observed in certain
specified respects. Paragraph 11 alleges that the second,
third and fourth
defendants then had and now have a duty to give all such directions and do all
such things as can be given or done
for ensuring that the procedures under the
Act, including the Administrative Procedures, were and are given effect to.
Paragraph
12 alleges that the Reserve Bank had and has a duty to observe and
assist in giving effect to the procedures "under the Act including
the
Administrative Procedures". Paragraph 13 alleges that the second, third and
fourth defendants are in breach of their duty as
alleged in par. 11, and that
the Reserve Bank is in breach of its duties as alleged in par.12. (at p500)
7. The relief claimed in the proceedings comprises a number of declarations which it is not necessary for me to set out at length. They comprise a declaration that the decision was unlawful and invalid, that the delay by the third defendant (alleged in par. 7M.) constituted a breach of the duties imposed on him, and that the draft impact statement was not a draft environmental impact statement pursuant to the Act and the Administrative Procedures and that various provisions of the Act and the Administrative Procedures were not complied with. The relief claimed also includes an injunction restraining the defendants from acting on the decision and from purporting to authorize any person to implement the decision and also orders that the second, third and fourth defendants give directions to ensure that the procedures under the Act and the Administrative Procedures are given effect to, and ordering that the Reserve Bank observe and assist in giving effect to the Procedures under the Act, and an injunction restraining the defendants from making any decision or determination in relation to the proposal without taking into consideration or account the contents of a "proper final environmental impact statement". (at p500)
8. Essential to the claim made is a declaration that the decision was and is unlawful and invalid. The expression "the decision" is defined in par. 8 of the statement of claim as being "to approve the proposal or alternatively . . . to approve exchange control transactions in relation to the proposal". The expression "the proposal" is defined in par. 7 as "the proposal by Iwasaki . . . to establish and operate a resort and tourist area at Farnborough in the State of Queensland", but it is possible that it was intended to include in that definition the alternative meaning that the proposal was that the Reserve Bank should approve "exchange control transactions" in relation to the Iwasaki proposal. The form of declaration sought in respect of the "decision" suggests that these two meanings are to be taken as if expressed in the alternative, though in the end it does not appear to make any practical difference. (at p500)
9. It is necessary to refer briefly to the terms of the Act. Section 5 sets out a statement that the object of the Act is to "ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to" the formulation of proposals and carrying out of works, the making of decisions and recommendations and the incurring of expenditure by the Australian Government and authorities of Australia. The term "environment" is defined in s.3 as including "all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings, and 'environmental' has a corresponding meaning". Section 6 authorizes the Governor-General by order to approve "administrative procedures for the purpose of achieving the object of this Act, being procedures that are consistent with relevant laws, as affected by regulations under this Act". Sub-section (2) lists a number of matters for which the approved procedures may provide. They include the supplying of information to the Minister, authorizing the Minister to direct the preparation of statements to be known as environmental impact statements, the making of such statements available for public comment, the holding of inquiries in accordance with the Act, the examination of statements by or on behalf of the Minister, the making of recommendations, comments or suggestions including suggestions or recommendations concerning conditions to which approvals, agreements and other matters should be subject and for exemptions from all or any of the requirements of the procedures. Section 7 provides for orders made under s. 6 to be laid before each House of the Parliament and for the passing of resolutions disallowing such orders. Section 8 requires each Minister to give such directions and do all such things to ensure that the procedures are given effect to and that final environmental impact statements are taken into account in the Department administered by him. Section 9 authorizes the making of regulations which make provision for requiring or permitting a prescribed authority to take into account matters affecting the environment in the taking of any action or the making of any decision and prescribing matters necessary or convenient to be prescribed as incidental to the provisions so made, and it further provides that regulations so made have effect notwithstanding any other law. It appeared that no such regulations had been made. Section 10 makes provision for the obtaining of information from the Minister. Section 11 provides that the Minister may direct that inquiries be conducted by a Commissioner or Commissioners. Sections 12-23 contain machinery provisions relating to such inquiries. In the present case there is no allegation that any such inquiry was ordered. Section 25 provides that the Governor-General may make regulations under the Act. (at p502)
10. On 20th June 1975 the Governor-General approved "Administrative
Procedures" under the Act. It is not necessary to set out these
Procedures in
detail, but it is convenient to note some of the provisions, including the
definitions. The term "action Minister"
is defined in par. 1.1 as follows:
"'action Minister', in relation to a proposed action, means the Minister
of State for Australia responsible for the proposed
action."
while the term "the Minister" is defined as meaning the Minister of State for
Australia for the time being administering the Act.
The term "proposed action"
is defined as meaning "a matter referred to in any of the paragraphs of
section 5 of the Act". By par.
1.2.1 the action Minister is, as soon as
possible after a proposed action has been first formulated, to designate a
person or Department
as the proponent of the proposed action. Paragraph 1.2.2
provides that the action Minister shall have regard to the general principle
that, as far as convenient, the person or Department responsible for the
execution of the proposed action should be designated as
the proponent, while
par. 1.2.3 provides that, in relation to a proposed action to be executed by
an authority, the responsible authority
shall be the proponent of the proposed
action and it shall ensure that the Department is, as soon as possible,
informed of the proposed
action. Paragraph 1.3 provides that, "before a
proposed action is executed, the proponent shall do all things necessary to
ensure
that these procedures are complied with in relation to the proposed
action". Paragraph 2.1 provides for the provision of information
to the
Minister for the purpose of consideration by him or on his behalf of the
necessity for an environmental impact statement in
relation to the proposed
action and the nature of the information to be so provided is stated in par.
2.2. Paragraph 3.1.1 provides
that the Department shall determine on behalf of
the Minister that the preparation of an environmental impact statement is not
required
or refer the question of whether it is required to the Minister; in
relation to those determinations a number of matters there set
out are to be
taken into account. Paragraph 4.1 provides the nature of the information to be
given and the matters to be dealt with
by an environmental impact statement.
There is provision for consultation between the proponent and the Department
concerning the
matters to be dealt with in the statement. Paragraph 6.2.1
provides that subject to the procedures a draft environmental impact statement
shall be made available for public comment in accordance with the procedures
as set out. By par. 6.2.3 the Minister is to determine
whether the draft
environmental impact statement is to be made available for public comment.
Paragraph 7 deals with inquiries and
reports. Paragraph 8.1 provides that, if
written comments are received, the proponent shall revise the draft
environmental impact
statement to take them into account and by par. 8.2 the
proponent is thereafter to produce a final environmental impact statement
and
provide a copy of it to any person who has made written comments on the
proposed action under pars. 6.3.1 (d) or 6.4. Paragraph
9 provides for
examination of the final environmental impact statement by the Department and
for each Minister to give directions
for ensuring that any final environmental
impact statement and any suggestions or recommendations made by a Minister or
Department
are taken into account in matters to which they relate. (at p503)
11. The submission on behalf of the defendants was that the Act and the
Administrative Procedures fall into the area of public law
in that they deal
with the mode of the exercise of the executive power of the Commonwealth and
of the powers of authorities of the
Commonwealth as defined in the Act, and
that the Act enables the executive government to obtain information and to
consider any effect
which action by the executive or an authority might have
upon the environment. For the contention that the plaintiff has no standing
to
institute proceedings in relation to the performance of such public duties
imposed upon the executive government and statutory
authorities, reliance was
placed upon the principle stated in Boyce v. Paddington Borough Council (1903)
1 Ch 109, at p 114 by Buckley
J. where his Lordship said:
"A plaintiff can sue without joining the Attorney-General in two cases:
first, where the interference with the public right
is such as that some
private right of his is at the same time interfered with (e.g., where an
obstruction is so placed in a highway
that the owner of premises abutting upon
the highway is specially affected by reason that the obstruction interferes
with his private
right to access from and to his premises to and from the
highway); and, secondly, where no private right is interfered with, but
the
plaintiff, in respect of his public right, suffers special damage peculiar to
himself from the interference with the public right."
This principle has been most recently applied in England in Gouriet v. Union
of Post Office Workers [1977] UKHL 5; (1978) AC 435
where the authorities
are fully examined.
Lord Wilberforce there stated the general principle at pp. 480-481 and
at pp.
483F, 484B,
and see also pp. 477D-F
in which both proceedings for injunctions
and for declarations are dealt with. His Lordship
in his review
of the matter
referred
to the long-established rule that a private individual may launch a
prosecution for some breach
of the criminal
law, but pointed
out that no such
rule exists in relation to civil proceedings seeking civil remedies by way of
injunction
or declaration.
His Lordship
added that if private damage has been
suffered proceedings to recover such damage are always open to
an individual
plaintiff.
Viscount
Dilhorne at p. 494F-G stated the same principle. See also
per Lord Diplock at pp. 499G-500E. I
do not need to refer expressly
to
the
speeches of the other members of the House of Lords where the same general
conclusion was reached
after an examination of
the
authorities. (at p504)
12. There are however a number of cases in which it has been said that the principle involved is that the plaintiff must show that he has a "real interest" or a "substantial interest" in the action. It is true that the expression "real interest" has been used in a number of cases, particularly in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC 438, at p 448 in a speech of Lord Dunedin and some reliance was placed by the plaintiff upon the quotation of that passage by Gibbs J. in Forster v. Jodedex Aust. Pty. Ltd. [1972] HCA 61; (1972) 127 CLR 421, at pp 437-438 . It seems to me, however, that both Lord Dunedin and Gibbs J. were dealing with quite a different question from the question whether a private individual having no private interest in the observance of a public duty may institute proceedings for an injunction or for a declaration with respect to the existence or proper exercise of a public duty. In both cases the matter at issue was the protection or enforcement of a private right and not the enforcement of a public right or a public duty. Where a private right exists then the observations made in those cases provide guidance on the question of whether the discretionary remedy of a declaration of right, rather than some more direct remedy, may be granted; they do not appear to me to assist in the present problem at all. (at p504)
13. For the plaintiff it was argued in the first place that the proper course was to adjourn the application to strike out the statement of claim so that the matter might go to trial, reserving the question of the standing of the plaintiff to maintain the proceedings so that it might be decided in the light of all the detailed facts. It does not appear to me that that is a convenient course. The function of the statement of claim is to set out the ultimate facts which it is sought to establish by appropriate evidence or admissions. If the ultimate facts relied upon do not disclose any cause of action it is not in the interest of the parties or of the court that proceedings, possibly both lengthy and expensive, should proceed when the basis disclosed in the statement of claim is incapable of supporting the relief claimed. It is, of course, proper to proceed in such an application upon the basis that all that is required is a reasonably arguable case. In such circumstances it is proper that it should be permitted to proceed, but where a statement of claim and the ultimate facts asserted therein do not disclose even an arguable case, whether through lack of locus standi or some other defect, the interests of justice require that the proceedings should be dealt with at the earliest stage to determine whether that is so or not. (at p505)
14. The second argument advanced by the plaintiff was that the statutory provisions show an intention to give to a private plaintiff a cause of action. It was argued that because of this the first arm of the propositions in Boyce v. Paddington Borough Council (1903) 1 Ch 109 was satisfied, in that the plaintiff had a private right which was being interfered with. It was said that the plaintiff had made a submission to the Minister and therefore had an interest recognized by the Administrative Procedures. It was put in the alternative that the plaintiff had, pursuant to s. 10 of the Act, required the Minister to inform it as to what action was proposed to be taken with respect to the environmental aspects of the proposal and that the section entitled the plaintiff to a "prompt reply" which, as pleaded, it did not obtain. It was argued that this gave to the plaintiff an interest created by the Act sufficient to support these proceedings. I am satisfied, however, that the Act does not disclose an intention to give to members of the public generally, or to those who take either of, or both, the steps referred to, a right to institute proceedings to enforce the provisions of the Act or the Administrative Procedures. Neither those particular steps, nor the provisions under which they were taken are of the same kind as affect a plaintiff adversely in a manner greater than or different from the effect upon members of the public generally. They are not examples of the kind of "special interest" or effect on the person or property of an individual which fall within the established doctrine. Reference was made to s. 9 which provides that regulations override any contrary provisions in other laws of the Commonwealth or State, though the same provision is not made with respect to the Administrative Procedures. It was said that it would be contrary to the scheme of the Act if there were no possible plaintiff other than the Attorney-General. In support of this argument reliance was placed on the observations of Gibbs J. in Victoria v. The Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338, at p 383 concerning the locus standi of a State or the Attorney-General of a State to challenge Commonwealth legislation. It does not appear to me to throw any light on the present problem or on the position of private persons seeking to challenge or enforce Commonwealth legislation, a field in which it has long been settled doctrine that such a plaintiff must show some personal interest which is adversely affected, and not merely the same concern as all private citizens. (at p506)
15. The plaintiff also relied upon the decision of Helsham J. in Benjamin v. Downs (1976) 2 NSWLR 199 . In that case the plaintiff sought a declaration that the saying of the prayers, the singing of hymns and the saying of grace in schools conducted by the State of New South Wales constituted "dogmatic or polemical theology" and not "general religious teaching", contrary to the provisions of the Public Instruction Act, 1880 (N.S.W.). The plaintiff had applied to the Attorney-General for his fiat but it had been refused. It was held that he did have locus standi to bring the proceedings notwithstanding that he alleged no damage. The reasons for this conclusion were that he had applied for and had been refused a fiat by the Attorney-General and, secondly, that he had a "real interest" in the subject matter of the action which was "important" and that no other form of proceedings appeared to be available. The learned judge's decision was, as I read it, based primarily upon the dicta of Lord Denning M.R., concurred in by Lawton L.J., in Attorney-General; Ex rel. McWhirter v. Independent Broadcasting Authority (1973) QB 629, at pp 648-649 . Those observations were made, and the decision of Helsham J. given, prior to the decision of the House of Lords in Gouriet's Case [1977] UKHL 5; (1978) AC 435 . Lord Denning's observations were the subject of comment by each of their Lordships in that case and found acceptance by none - see per Lord Wilberforce (1978) AC, at p 483 , per Viscount Dilhorne (1978) AC, at p 495 , per Lord Diplock (1978) AC, at p 502 , per Lord Edmund-Davies (1978) AC, at pp 509, 511 , per Lord Fraser (1978) AC, at pp 521-522 . I respectfully agree with the views expressed by their Lordships, which I regard as equally applicable in Australia. The decision of Helsham J. is, with due respect, not reconcilable with Gouriet's Case nor with settled doctrine in Australia and the plaintiff in the present case can gain no support from it. (at p506)
16. Reliance was also placed on the decision of Perry J. (as he then was) in
New Zealand Institute of Agricultural Science v. Paparua
County (1969) NZLR
653 . In that case the defendant council was held to have approved a plan of
subdivision of county land which
was not in conformity with the council's
proposed district scheme. The plaintiff society, which had given notice of
opposition to
the council's proposed district scheme under the Town and
Country Planning Act 1953, was held to be a party to proceedings of a judicial
nature and for that reason entitled to seek the Court's assistance in regard
to the remedies claimed in the proceedings. Perry J.
treated that interest as
falling within the general principle stated in Boyce v. Paddington Borough
Council (1903) 1 Ch 109 . He
said (1969) NZLR, at p 660 :
"Here, the plaintiff is a party to proceedings of a judicial nature" (i.e.
under the Town and Country Planning Act) "and although
today some decision
thereon may have been given, nevertheless, it has rights of appeal. If the
balance of the land is to be subdivided,
or if dwellings are to be erected,
that would be in anticipation of an adverse result to its counter objection
and its position might
well be prejudiced. Had I thought otherwise, I would
have given leave to join the Attorney-General as a plaintiff if he is so
willing,
or as a defendant otherwise, as was done in Boyce v. Paddington
Borough Council."
That decision appears to me to be based upon factors which have no counterpart
in the present case, namely, rights of objection and
appeal under the Town and
Country Planning Act which would be lost or destroyed if the defendant
council's actions were allowed to
stand. In those circumstances I do not need
to consider whether it would otherwise fall within the scope of the decision
in Boyce
v. Paddington Borough Council, but I do not read it as extending or
intended to extend the ordinary operation of the general principle
there laid
down. The report appears to be in error in relation to the position of the
Attorney-General in Boyce's Case. In the proceedings
in the Court of Appeal he
was joined as a plaintiff, not as a defendant (1903) 2 Ch 556, at p 561 . With
due respect, however, I
cannot agree that if there were a defect it could be
cured by joining the Attorney-General as a defendant. (at p507)
17. In Robinson v. Western Australian Museum (1977) 138 CLR 283 the question of locus standi of the plaintiff was dealt with by all members of the Court. Barwick C.J. dealt with the matter at pp. 292-293 and took the view that the plaintiff had a greater interest than any other member of the public to seek the assistance of the Court to determine the validity of the legislation. Gibbs J. (1977) 138 CLR, at pp 301-303 applied the same test but pointed out that the plaintiff could not attack the legislation generally, but only so much of it as affected his interest. Stephen J. reached a different conclusion on the question of locus standi but applied the same general test (1977) 138 CLR, at p 315 . Mason J. (1977) 138 CLR, at pp 327-328 discussed a number of the authorities, saying, "The rule is generally expressed in the proposition that a person not affected in his private rights may not sue for declaratory relief", but pointed out that in Anderson v. The Commonwealth [1932] HCA 2; (1932) 47 CLR 50 the rule was expressed "more liberally" by saying that a plaintiff in the relevant circumstances cannot succeed "unless he establishes that he is 'more particularly affected than other people'". Jacobs J. (1977) 138 CLR, at p 340 said that: "But his right to claim" (salvage) "is sufficient to give him a standing to challenge the validity of the Western Australian legislation which stands in the way of such a claim." Murphy J. (1977) 138 CLR, at p 344 took a somewhat different view based on the decision in Baker v. Carr [1962] USSC 48; (1962) 369 US 186 (7 Law Ed 2d 663) . (at p508)
18. It appears to me that although the matter is expressed in slightly different ways in the various judgments there is a clear majority of the Court for the proposition that unless a plaintiff is adversely affected in some way to an extent greater than the public generally he may not maintain an action for an injunction or a declaration in respect of either the validity of a statute or some breach by the executive government or statutory authorities in respect of matters of public law and in particular of breaches of statute or regulations. (at p508)
19. The plaintiff sought to escape the consequences of this established view of the law by reliance upon the Administrative Procedures, as well as by reliance upon an argument that different rules apply with respect to standing in relation to different remedies. It was argued that Gouriet's Case [1977] UKHL 5; (1978) AC 435 was not material because it was concerned with the enforcement of the criminal law by injunction and that there was here no criminal sanction in the statute and no enforcement procedure laid down. It was said that the question of standing in relation to applications for prerogative writs was one of liberality and that a person aggrieved may apply even if he is a stranger to the proceedings, that the court maintains control only by the exercise of its discretion and that the procedure adopted as in the present case was analogous to the prerogative writs of prohibition and certiorari. In such a case the test was that the applicant must have a "real, substantial or special interest in the performance of the duty". However, it does not appear to me that the adoption of that view would assist the plaintiff in the present case because that expression amounts to saying that the applicant must have some interest in the matter complained of over and above, or different from, that of the general public. It is no doubt true that in relation to the prerogative writs of prohibition and certiorari there is some authority for the proposition that a stranger to the proceedings may apply. Some doubt has been expressed as to the correctness of this view, but it is not necessary to pursue this question here. If the proposition be correct, it is clearly based upon the special nature of those prerogative writs, their procedural requirements and their origin in protecting the jurisdiction of the common law courts from usurpation. Accordingly, I do not think that the cases relating to the prerogative writs have any application in the present case. (at p509)
20. I was also referred to two decisions of the Supreme Court of the United States - Sierra Club v. Morton [1972] USSC 84; (1972) 405 US 727 (31 Law Ed 2d 636) and United States v. Students Challenging Regulatory Agency Procedures [1973] USSC 148; (1973) 412 US 669 (37 Law Ed 2d 254) - in which questions arose as to the plaintiffs' standing to seek judicial review of administrative action under the Administrative Procedure Act (U.S.) which provides that a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" is entitled to judicial review thereof. The judgments make it clear that earlier decisions had adopted a broad view of standing under that section and that those who had suffered "injury in fact" or were "arguably within the zone of interests to be protected or regulated" had standing to sue. The application of that test in the earlier case produced a result not differing from that which would follow from the law as laid down in Gouriet's Case and in Robinson's Case (1977) 138 CLR 283 . In the latter case a much wider application was given to the provision and locus standi recognized as existing in a case in which it would be denied under the English and the Australian authorities. Those decisions provide no basis for departing from the law as expressed in Robinson's Case, even if I were at liberty to do so. (at p509)
21. I should also say expressly that I do not consider that the use of the expression "an interested person" in par. 6C of the statement of claim can improve the plaintiff's position. Even if that paragraph is intended to convey that the expression was used by some person on behalf of the Commonwealth such use cannot affect the legal standing of the plaintiff to maintain this action. (at p510)
22. I am unable to draw an inference from the provisions of the Act and the Administrative Procedures that they show a legislative intention that any private citizen may apply to the court to enforce compliance with their requirements by the executive government or by statutory authorities. It appears to me that the Act and the Procedures are directed towards the regulation of internal governmental procedures and the relations between different organs of government, whether exercising the executive power of the Commonwealth or performing functions as statutory authorities (as defined). (at p510)
23. The procedures are entirely within the control of the executive government and the object of the Act as set out in s. 5 is to ensure "to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account . . ." by the executive and by statutory authorities. By s. 8 each Minister is to give directions for ensuring that procedures are given effect to and that final environmental impact statements are taken into account. This demonstrates that "enforcement" of the Act and of the Administrative Procedures is placed primarily in the hands of the relevant Ministers and that the Act and the Procedures are concerned with the decision-making processes of government. Private citizens may be adversely affected by government decisions and in appropriate cases may resort to the Courts to challenge the power to make a particular decision having such an effect upon them, but that is a matter quite different from enforcement of these internal governmental procedures. If these are duties of an enforceable character placed on Ministers and others, they are enforceable only by the Attorney-General or by those who are themselves adversely affected more than or differently from the general public. It is, in my opinion, clear that a private individual, whether a person or a corporation, is not given, by the Act, either expressly or by implication, a status enabling him to apply to the Court to enforce compliance. (at p510)
24. Special reliance was placed on the fact that the plaintiff had under s. 10 of the Act required the Minister to inform it of what action had been taken for ensuring consideration of the environmental aspects of the matter and that the Minister had not promptly informed it accordingly. These provisions appear to me to reinforce the view that the enforcement of the procedures is in the hands of the relevant Minister and not in the hands of members of the public. The requirement that the Minister shall reply promptly appears to me to be directory, rather than mandatory and in any event to be quite unrelated to the relief claimed. (at p511)
25. This leads me to the final matter for consideration. In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The "interest" of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the relief claimed in the statement of claim. Here the primary relief is a declaration that whatever decision was made was unlawful and invalid. Thus, in the present case, if the decision was to grant exchange control approval to some transaction, that approval was null and void and the transaction if carried out was illegal, so that an offence was committed by persons who may well have known nothing of the procedural defects of which the plaintiff complains. There is, it seems to me, no relationship between that relief and the failure of the Minister to reply promptly to the plaintiff's request for information. The giving of such a reply is not made by the Act or the Administrative Procedures a condition precedent to the making of a decision by the Minister or anyone else. (at p511)
26. In my opinion, the failure to comply with the Administrative Procedures complained of does not give a person who makes a submission an enforceable right to have the relevant administrative decision, and action taken thereunder, declared void and illegal, or merely void. (at p511)
27. It would be one thing to say that a person requesting information is entitled under s. 10 to receive a prompt reply and that there is a corresponding obligation on the Minister to reply promptly, an obligation which might be enforced by mandamus. It is quite another thing to say where there is a failure to reply promptly, the inquirer may obtain from the court a declaration that the decision or decisions made by that Minister, some other Minister or some statutory authority, whether before or after the decision, are thereby null and void. Such a proposition is plainly insupportable. (at p511)
28. Paragraph 7N of the statement of claim alleges that by reason of the matters alleged in par. 7M (the failure of the Minister to reply promptly) it was denied the opportunity to make representations and take other action. This allegation overlooks the fact that neither the Act nor the Administrative Procedures attach any consequence to the making of, or the failure to make, a reply to an inquiry under s.10. No provision requires that action shall not be taken during any specified interval after the reply is received. This allegation is, in my opinion, quite unrelated to the relief claimed. (at p512)
29. I have dealt above with the absence of locus standi to claim the primary relief, the declaration that the "decision" was unlawful and invalid. The same reasons apply to the claim for the declarations set out in pars. A (2) and (3). Paragraph A (4) claims a general declaration in terms of the Act as to the duties of the second, third and fourth defendants, and for the same reasons the plaintiff has shown no locus standi to claim such relief. Paragraphs A (5) and (6) claim declarations that the provisions of the Act and the Administrative Procedures were not complied with and that the "decision" was not in conformity with the Act and the Administrative Procedures and for the same reasons no locus standi is shown in respect of that relief. The same is true of the mandatory order claimed in pars. D and F and the injunction claimed in par. E. (at p512)
30. I am, therefore, of opinion that the plaintiff has no locus standi to maintain these proceedings. This is not a mere defect in pleading which can be cured by amendment, but a defect which is fatal to the plaintiff's cause of action and its entitlement to the relief claimed. It is, therefore, a proper case not merely for striking out the statement of claim, but also for making an order dismissing the cause of action under O. 26,r. 17. (at p512)
31. It was submitted on behalf of the plaintiff that if it was unsuccessful, this would be a proper case for not making an order for costs. Kent v. Cavanagh (1973) 1 ACTR 43 was relied on in support of that submission. I do not need to consider whether the discretion as to costs was properly exercised in that case. The question for me is whether there is in the present case any sound basis for departing from the ordinary practice that a plaintiff who lacks locus standi to maintain proceedings which he has instituted should pay the costs of the defendant. The only reason advanced was the nature of the plaintiff's objects and its pursuit of them. I am unable to see that those objects and their pursuit, in this case by unfounded litigation, provide a reason why the plaintiff should not pay the costs of the defendants in resisting the plaintiff's claim which I have held so lacking in substance that it fails in limine. (at p512)
32. Accordingly, I order that the plaintiff's statement of claim be struck
out and that the action be dismissed and that the plaintiff
pay the taxed
costs of the defendants. I certify for counsel. (at p512)
33. Order that statement of claim be struck out and that action be dismissed.
(at p512)
34. Plaintiff to pay defendants' taxed costs. (at p512)
35. The Conservation Foundation appealed to the Full Court from the decision of Aickin J. (at p513)
36. M. R. Wilcox Q.C. (with him G. Griffith and J. H. Karkar), for the appellant. Australian courts have applied a more liberal test than that in Boyce v. Paddington Borough Council (1903) 1 Ch 109 and it has been held that persons who have a special interest to enforce a public law have standing. That special interest need not involve a legal right and need not be an interest peculiar to the plaintiff. It includes what might be called ideological interests such as beliefs or objectives shared by a number of people or a section of society on a moral, social or environmental question. The appellant has standing as a well-known and reputable conservation body with a brief throughout Australia. It also has standing as a person who commented on the draft environmental impact statement. The Australian decisions deal only with the question whether the particular interest in each case is sufficient and do not define the minimum interest for standing. They establish four propositions. (at p513)
37. (1) Special damage can be constituted by a mere apprehension of a disadvantage, be it commercial: Attorney-General (N.S.W.) v. Brewery Employe's Union of N.S.W. [1908] HCA 94; (1908) 6 CLR 469, at pp 491, 494-498, 519-520, 548 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 ; political: McDonald v. Cain [1953] VicLawRp 62; (1953) VLR 411, at p 420 ; Tonkin v. Brand (1962) WAR 2 ; Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 ; Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432 ; possible prosecution: Crouch v. The Commonwealth [1948] HCA 41; (1948) 77 CLR 339 ; Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [1912] HCA 94; (1912) 15 CLR 182 ; environmental: Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272 ; or a potential property disadvantage: Blanch v. Stroud Shire Council (1947) 48 SR (NSW) 37, at pp 44-45 . Ideological plaintiffs had standing in Benjamin v. Downs (1976) 2 NSWLR 199 and National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 . The genuineness of the plaintiff can be investigated in each case. It is proper to have regard to the plaintiff's identity, its purpose and its objects in determining whether it has suffered a grievance: National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 . (at p514)
38. (2) Standing has been denied in only the competitor cases: Helicopter Utilities v. Australian National Airlines Commission (1962) NSWR 747 ; California Theatres Pty. Ltd. v. Hoyts Country Theatres Ltd. (1959) 59 SR(NSW) 188 ; Grand Central Carpark Pty. Ltd. v. Tivoli Freeholders [1969] VicRp 9; (1969) VR 62 (these decisions are difficult to reconcile with the recognition of business advantage in the constitutional cases: Attorney-General (N.S.W.) v. Brewery Employe's Union of N.S.W. [1908] HCA 94; (1908) 6 CLR 469 ; British Medical Association v. The Commonwealth [1949] HCA 44; (1949) 79 CLR 201 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 ), and in the taxpayer cases where the plaintiff asserted a claim merely as a member of the public, Anderson v. The Commonwealth [1932] HCA 2; (1932) 47 CLR 50 ; Logan Downs Pty. Ltd. v. Federal Commissioner of Taxation [1965] HCA 16; (1965) 112 CLR 177, at p 187 . These latter cases merely reject an "open door" approach and do not delimit the interest required for a plaintiff who is affected in a manner different from the public generally. (at p514)
39. (3) The right given to a person to be notified of or object to a proposal is a basis for standing: Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272 ; S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [1964] VicRp 32; (1964) VR 229 ; Dajon Investments Pty. Ltd. v. Talbot [1969] VicRp 75; (1969) VR 603 ; National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 ; Scurr v. Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 ; Brettingham-Moore v. St. Leonards' Municipality [1969] HCA 40; (1969) 121 CLR 509 ; Port Louis Corporation v. Attorney-General (Mauritius) (1965) AC 1111 . The plaintiff does not have to establish that he will suffer actual damage. It is enough if he was entitled to have an objection considered. The appellant had a statutory entitlement to have its submission considered and reproduced in the final environmental impact statement and so has standing. (He also referred to Real Estate Institute of N.S.W. v. Blair [1946] HCA 43; (1946) 73 CLR 213 ; Forster v. Jododex Aust. Pty. Ltd. [1972] HCA 61; (1972) 127 CLR 421 ; Mutton v. Ku-ring-gai Municipal Council (1973) 1 NSWLR 233, at pp 249-255 ; Victoria v. The Commonwealth [1975] HCA 52; (1975) 134 CLR 338 ; Attorney-General (N.S.W.) v. Publishing and Broadcasting Ltd. (1977) 2 NSWLR 813 ; Green v. Daniels [1977] HCA 18; (1977) 13 ALR 1 .) (at p515)
40. (4) The question of standing should not have been dealt with as a preliminary issue. Although a trial judge has a discretion when to decide the question of standing, in most cases it has been convenient to get in the facts and determine standing when the merits and relief were considered. Only in Anderson v. The Commonwealth [1932] HCA 2; (1932) 47 CLR 50 was standing decided as a preliminary issue. (at p515)
41. The United States and Canadian courts adopt a flexible approach in environmental cases and determine matters on their merits where there are people with a real concern, though not necessarily in any property sense: Baker v. Carr [1962] USSC 48; (1962) 369 US 186 (7 Law Ed 2d 663) ; Sierra Club v. Morton [1972] USSC 84; (1972) 405 US 727, at pp 731-740(31 Law Ed 2d 636, at pp 640-646) ; United States v. Students Challenging Regulatory Action Procedures [1973] USSC 148; (1973) 412 US 669 (37 Law Ed 2d 254) ; Flint Ridge Development Co. v. Scenic Rivers Association [1976] USSC 175; (1976) 426 US 776 (49 Law Ed 2d 205) ; Thorson v. Attorney-General (Canada) (No. 2) (1974) 43 DLR (3d) 1 ; Stein v. City of Winnipeg (1974) 48 DLR (3d) 223 ; Nova Scotia Board of Censors v. McNeil (1975) 55 DLR (3d) 632 ; Rosenberg v. Grand River Conservation Authority (1976) 69 DLR (3d) 384 ; Attorney-General (Nova Scotia) v. Bedford Service Commission (1976) 72 DLR (3d) 639 ; Fraser v. Town of New Glasgow (1976) 76 DLR (3d) 79 . For the position in France, see Harding, "Locus Standi in French Administrative Law", (1978) Public Law, p. 144. Gouriet v. Union of Post Office Workers [1977] UKHL 5; (1978) AC 435 should be treated as an extreme case: the injunction sought might well have been denied as a matter of discretion. Prohibition and certiorari are available to a stranger to the proceedings but the fact that the applicant is a stranger may affect the exercise of the discretion whether to grant the remedy: Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) [1956] HCA 31; 96 CLR 317 ; Reg. v. Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77 . Mandamus is available in circumstances quite divorced from property interest and expectations: see cases listed in Whitmore & Aronson, Review of Administrative Action (1978), pp. 481-484. The same rule as to standing should be adopted for declarations and injunctions. Furthermore, Australian Attorney-Generals are in a different position from their English counterparts when considering whether to grant a fiat to a relator action, particularly when the constitutional validity of common law legislation is in issue. The floodgates argument was answered in Dyson v. Attorney-General (1911) 1 KB 410 and Phelps v. Western Mining Corporation Ltd. (1978) 33 FLR 327; 20 ALR 183 . (at p516)
42. W. F. Ormiston Q.C. (with him M. E. J. Black), for the respondents. The appellant has no standing as it does not possess any relevant private right which has been interfered with nor has any special damage peculiar to the appellant resulted: Boyce v. Paddington Borough Council (1903) 1 Ch 109 : Anderson v. The Commonwealth [1932] HCA 2; (1932) 47 CLR 50 ; Crouch v. The Commonwealth [1948] HCA 41; (1948) 77 CLR 339 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 . The principles stated in Gouriet v. Union of Post Office Workers [1977] UKHL 5; (1978) AC 435, at pp 477, 483, 501 should be applied. See also London Passenger Transport Board v. Moscrop (1942) AC 332, at pp 344-345 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 . The claim made by the appellant in respect of its members does not give rise to any relevant interest or special damage: Victorian Chamber of Manufactures v. The Commonwealth [1943] HCA 19; (1943) 67 CLR 335, at pp 341-343 ; Victorian Chamber of Manufactures v. The Commonwealth [1943] HCA 22; (1943) 67 CLR 413 . No right of the appellant has been affected nor has it suffered harm by reason of the acts of which it complains. The obligations imposed upon the Minister pursuant to the Act and the procedures relate to administrative procedures of government and do not give a right to individuals to bring actions for omissions to do any administrative act unless the right is expressly conferred: Wool Sliping and Scouring Co. Ltd. v. Central Wool Committee [1920] HCA 21; (1920) 28 CLR 51, at pp 61, 63, 64 . There is a presumption that in relation to administration of departments of state there is no duty which is capable of giving rise to a correlative right in a person who chooses to take part in the administrative procedures to enforce the observance of those procedures, unless he is a person directly affected by the particular procedures. The duty imposed by s. 8 is limited to Ministers of the Crown to whom mandamus does not ordinarily run: R. v. Arndel [1906] HCA 7; (1906) 3 CLR 557 . The procedures give directions to proponents and the Minister. The entitlement to comment does not create a right to see that all of the procedures are carried into effect. The appellant is interested only as a concerned bystander and that does not give it standing. The procedures are unlike those before the Town Planning Appeals Tribunals referred to in National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 and those in the Administrative Procedures Act referred to in the Sierra Club v. Morton (1972) 405 US, at p 733 (31 Law Ed 2d, at p 642) . A person who comments occupies a different position from a person who objects to a licensing application or participates in a mining inquiry because it is an administrative procedure and not a judicial or quasi-judicial proceeding. None of the appellant's cases gives the right it seeks. In a number of cases the parties had standing having suffered damage or being directly affected: S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [1964] VicRp 32; (1964) VR 229 ; Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272, at p 274 ; Dajon Investments Pty. Ltd. v. Talbot [1969] VicRp 75; (1969) VR 603, at p 614 ; Cambridge Credit Corporation Ltd. v. Parkes Development Pty. Ltd. (1974) 2 NSWLR 590 . In National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 a right to appear before the planning tribunal was provided. Standing has been refused in a number of cases in Australia: Thompson v. Randwick Municipal Council [1953] HCA 75; (1963) 90 CLR 449, at p 458 ; Seamen's Union of Australia v. Utah Development Co. [1978] HCA 46; (1978) 144 CLR 120, at p130 . To have standing, a person must have a right, if not of property, akin to property. The right to seek mandamus is different in kind from a right which is capable of being recognized or enforced by declaration or injunction: Sinclair v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 ; Reg. v. Bowman (1898) 1 QB 663 . One should be cautious before holding that a right to participate in a procedure gives rise to standing to sue for a declaration or injunction: see Sierra Club v. Morton (1972) 405 US, at p 739 (31 Law Ed 2d, at pp 645-646) . The United States cases are also distinguishable because of the system of responsible government in Australia: Reg. v. Lords Commissioners of the Treasury (1872) LR 7 QB 387 : R. v. Arndel [1906] HCA 7; (1906) 3 CLR 557 . Control should be exercised through the parliamentary process and not through the courts. (at p517)
43. G. Griffith, in reply. In cases where the Commonwealth and the executive
are to be defendants the court should not be too rigorous
in excluding a
plaintiff where there is no fear of the federal Attorney-General. The
Attorney-General may appear as counsel in cases
where he has granted his fiat:
Shore v. Wilson (1842) 9 Cl & Fin 355 (8 ER 450) . It is sufficient for the
appellant to establish
its standing that it seeks to vindicate a right
conferred by the Act and the procedures it provides. The Foundation is in the
same
position as an objector in a town planning case. A distinction cannot be
drawn between administrative and quasi-judicial procedures:
Twist v. Randwick
Municipal Council [1976] HCA 58; (1976) 136 CLR 106 . Prohibition or certiorari lies against
a Minister of the
Crown: R. v. Minister
of Health; Ex parte Davis (1929)
1 KB
619 ; Minister of Health v. The King (1931) AC 494 ; R. v. Electricity
Commissioners (1924)
1 KB 171 ; see also Judiciary Act,
s. 33 (1). The
appellant, having submitted its comments, is entitled to standing
to ensure
that
its comments are dealt with in accordance
with the administrative
procedures. That is sufficient to establish its
interest: see Robinson
v.
Western Australian Museum (1977)
138 CLR 283 ; Anderson v. The Commonwealth
(1932) 47 CLR,
at p 52 . There is no penalty provision
in the Act and, if
standing is
denied, there would be no procedure to ensure compliance with
it.
Cur. adv. vult.
1980, February 13.
The following written judgments were delivered: -
GIBBS J. The appellant, Australian Conservation Foundation Incorporated
("the Foundation"), is the plaintiff in an action brought
in this Court
against the present respondents - the Commonwealth, three Ministers of State
of the Commonwealth, and the Reserve Bank
of Australia. The main purpose of
the action was to challenge the validity of a decision allegedly made by some
of the respondents
on or prior to 30th July 1978 to approve of a proposal by
Iwasaki Sangyo Company (Australia) Pty. Ltd. ("Iwasaki") to establish and
operate a resort and tourist area at Farnborough in central Queensland or,
alternatively, to approve exchange control transactions
in relation to that
proposal. On the application of the respondents, Aickin J. made an order that
the statement of claim be struck
out and that the action be dismissed. This
appeal is brought from his decision. The principal question raised by the
appeal is whether
the Foundation has locus standi to maintain the action. (at
p518)
2. The Foundation is a body well-known for its involvement in the public
discussion of issues affecting the environment in Australia.
It is a body
corporate under the laws of the Australian Capital Territory. Its objects
include the following:
"(i) to make every effort to ensure that the air, land and waters of
Australia are used with wisdom and foresight and that
competing demands upon
them are resolved in the best long-term interest of the nation;
(ii) to foster the conservation of the distinctive vegetation and fauna
and important natural and archaeological features of
Australia;
. . .appropriate in the interests of promoting conservation . . . "
(viii) generally, to take such action as it considers necessary or
3. The facts alleged in the statement of claim are fully set out in the judgment of Aickin J., and it is enough for me to give an outline of the nature of the case which the statement of claim asserts. On or about 30th July 1978 one or other of the respondents, or the servants or agents of the Commonwealth, purported to approve the proposal by Iwasaki to establish and operate a tourist resort at Farnborough or, alternatively, to approve exchange control transactions in relation to the proposal. Although the statement of claim leaves it entirely vague what was approved, or who approved it, it appeared from argument that the decision challenged by the Foundation was made by the Reserve Bank under the Banking (Foreign Exchange) Regulations. The area at Farnborough, the subject of the proposal, comprises both privately-owned and public lands over which members of the public, including some members of the Foundation, have access and rights of access and use which would be detrimentally affected by the implementation of the proposal. On 13th January 1978 the Minister of State for Environment, Housing and Community Development had directed that there be prepared, obtained and submitted to him an environmental impact statement in relation to the proposal, and on or about 23rd June 1978 Iwasaki published what purported to be a draft environmental impact statement, which was made available for written comment by interested persons, including the Foundation. On or before 20th July 1978, the Foundation delivered written comments. On 26th July 1978, and again on 9th August 1978, the Foundation by notice in writing required the Minister to inform it as to what action, if any, had been taken, or was proposed to be taken, for ensuring consideration of the environmental aspects in respect of the proposal. No reply was sent to these notices until 11th September 1978. In the meantime, on or before 30th July 1978, there was given the purported approval which the Foundation claims was invalid. Subsequently, on 29th August 1978, Iwasaki delivered what purported to be a final environmental impact statement. (at p520)
4. The Foundation alleges that, in a number of respects, there has been a
failure to comply with the Act and the Administrative
Procedures. It seeks
declarations to that effect, and, in particular, seeks to have it declared
(inter alia) -
(i) that the delay by the Minister in replying promptly to the notices
from the Foundation constituted a breach of the duties
imposed upon the
Minister by s. 10 of the Act;
(ii) that the draft environmental impact statement published by Iwasaki
was not a draft environmental impact statement made pursuant
to the Act and
the administrative procedures;
(iii) that Iwasaki did not provide a final environmental impact statement
to take into account written comments received by it
in respect of the
proposal, including the Foundation's comments, and did not prepare a final
environmental impact statement in respect
of the proposal;
(iv) that the decision was not made in conformity with the Act and the
administrative procedures, in particular, because it was
made before the
preparation and consideration of a draft environmental impact statement and a
final environmental impact statement
in respect of the proposal and without
taking any such draft or final environmental impact statement into
consideration or account.
These declarations seem designed to provide a basis for making the primary
declaration sought, which is that the decision was and
is unlawful and
invalid. The Foundation further seeks an injunction restraining the
respondents from acting upon the decision and
from purporting to authorize
anyone else to act upon or implement the decision, orders that each of the
respondent Ministers of State
shall give all such directions and do all such
things as can be given or done for ensuring (inter alia) that the procedures
under
the Act and the Administrative Procedures are given effect, an order
that the Reserve Bank observe and assist in giving effect to
the said
procedures, an injunction restraining the respondents from making any decision
or determination in relation to the proposal
without taking into consideration
or account the contents of a proper final environmental impact statement
prepared in accordance
with the Act and the Administrative Procedures, and an
order directing the respondents to take all steps within their powers to
ensure
that the decision be not implemented until a proper decision is made
after taking into consideration and account the contents of
a proper final
environmental impact statement. (at p521)
5. The object of the Act is stated in s. 5 (1), which reads as follows:
"The object of this Act is to ensure, to the greatest extent that is
practicable, that matters affecting the environment to
a significant extent
are fully examined and taken into account in and in relation to -
(a) the formulation of proposals;arrangements (including agreements and arrangements with, and with authorities of, the States);
(b) the carrying out of works and other projects;
(c) the negotiation, operation and enforcement of agreements and
(e) the incurring of expenditure,Australia, either alone or in association with any other government, authority, body or person."
by, or on behalf of, the Australian Government and authorities of
(h) exemptions from all or any of the requirements of the procedures."Section 7 provides for an order made under s. 6 to be notified in the Gazette and to take effect from the date of publication, or, where another date is specified in the order, from the date specified. However, if an order is not laid before each House of the Parliament, in accordance with s. 7 (1), it shall be void. Either House may, by resolution, disallow the order. Section 8 provides as follows:
6. Pursuant to the power given by s.6, Administrative Procedures have been
approved and have taken effect. It is unnecessary to
state in full detail the
provisions of the Administrative Procedures but it is necessary to refer to
some of them. A person who desires
action to be taken by an authority of the
Commonwealth in any case falling within s. 5 of the Act - "the proponent" as
he is called
- must supply information which will enable the Minister to
determine whether an environmental impact statement is required: par.
2.1. If
an environmental impact statement is required, it shall contain the matters
prescribed by par. 4.1. Unless the Minister otherwise
directs, a draft
environmental impact statement is to be made available for public comment:
pars. 6.2.1., 6.2.3. Where the draft
environmental impact statement is made
available for public comment, the proponent is required to give notice of
(inter alia) "an
address to which interested persons and bodies are invited to
send written comments on the proposed action within a period, being
a period
of not less than 28 days after the date of publication of the notice": par.
6.3.1. (d). Within seven days after the period
specified under sub-par. 6.3.1.
(d), a copy of any written comments received shall be provided to the
Department and the proponent:
par. 6.5. The provisions of par. 8.1. so far as
relevant are as follows:
"If, having regard to . . . any written comments received under
sub-paragraph 6.3.1. (d) . . . it is still intended that the
proposed action
should be executed, the proponent shall revise the draft environmental impact
statement -
(a) to take into account -comments received under sub-paragraph 6.3.1. (d) . . . "
(i) any written comments received under sub-paragraph 6.3.1. (d) . . .
. . . ; and
(b) to summarize or to include in full (as appropriate) any written
7. It is clear that the provisions of the Act, with the possible exception of
s. 10, do not create private rights. With that possible
exception, the only
effect of the provisions now relevant is to enable the Governor-General to
approve of Administrative Procedures,
and to require every Minister of State
to do all he can to ensure that those procedures are given effect in matters
dealt with by
his department, and, in particular, to ensure that any final
environmental impact statement, and any suggestions or recommendations
made in
accordance with the procedures, are taken into account, in matters to which
they relate, in his department. In other words,
the Act does not expressly
create any rights, and the duty which it casts upon each Minister of State is
one which is to be performed
by him in the course of administering the affairs
of his department. That is a public duty, and it is not owed to any particular
person or persons. (at p524)
8. In my opinion, the Act does not have the effect that the administrative procedures create rights enforceable by private individuals. The Administrative Procedures are exactly what their name suggests - rules which lay down the procedure to be followed by persons seeking, considering or taking administrative action. They are not declared by the Act to have the force of law; on the contrary, they must be "consistent with relevant laws" (s.6), and in this respect they differ from regulations which, according to s. 9, "have effect notwithstanding any other law". Moreover, the Minister is not bound absolutely to see that the procedures are observed. He is to "give all such directions and do all such things as . . . can be given or done by him" to achieve that result: s. 8. That means that the Minister has to do everything possible, consistently with the law, to ensure that his officers, in carrying out their administrative duties, give effect to the administrative directions. The Act may affect the performance of administrative functions in many fields of governmental activity - it is intended to ensure that matters affecting the environment to a significant extent are taken into account by Commonwealth authorities in relation to such matters as the carrying out of works, the enforcement of agreements, the making of decisions, and the incurring of expenditure. In the absence of clear words it is impossible to impute to the Parliament an intention to confer on any private citizen the right to enforce the observance of the proper procedures of administration in the conduct of governmental activities over so wide an area, and there is no hint in the provisions to which I have referred of any such intention. (at p525)
9. If it were assumed, contrary to my opinion, that the Governor-General had power, by approving Administrative Procedures, to create legally enforceable rights, it does not appear to me that the Administrative Procedures which were approved have created such rights. It was submitted, on behalf of the Foundation, that a person who had furnished written comments in relation to a proposal on which a decision was sought stood in a special position, and had a right to ensure that his comments were taken into account in the final environmental impact statement, and that the final environmental impact statement was considered before a decision was made. As I have indicated, a proponent who has received written comments on his proposal and who wishes to proceed is required to revise the draft environmental impact statement so as to take the written comments into account: par. 8.1. After the draft environmental impact statement has been revised, the proponent must provide a copy of the final environmental impact statement to the person who made the written comments: par. 8.2. However, the Administrative Procedures do not allow the person who made the written comments to intervene further. No doubt if such person considered that the final environmental impact statement did not take the comments into account, he might inform the Minister or the department accordingly, and if the Minister was of the same opinion, it would seem proper for him to draw attention to that fact in comments made under par. 9.3., and it would be his duty to do whatever he could to ensure that the provisions of the Administrative Procedures were observed. However, there is nothing in the Administrative Procedures to suggest that a person who has furnished written comments has any right either to compel the Minister to take any particular action or to be heard further by the Minister or anyone else in relation to the matter. (at p525)
10. For these reasons, I conclude that the Foundation had no right to ensure that any, or all, of the Administrative Procedures were observed. The position is rather different under s. 10 of the Act. The duty of the Minister to "promptly inform" any person who has, by notice in writing, required the Minister to furnish information under that section might appear to imply a correlative right to receive a prompt reply. However, it is unnecessary to consider further the possible effects of s. 10, because counsel for the Foundation very properly abandoned any reliance upon it in argument before us. Any delay in replying to the letters requiring the Minister to furnish information occurred after the challenged decision had been made, and it was rightly acknowledged in those circumstances that any such delay could not affect the validity of the decision already reached. Moreover, the information was furnished - the Foundation has had its reply - and it is not suggested that it has standing to bring an action for the sole purpose of determining whether the reply was made promptly enough. (at p526)
11. For the reasons I have given, the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes, or threatens to cause, damage to the Foundation, or that affects, or threatens to affect, the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether, in these circumstances, it has standing to sue. (at p526)
12. It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so. (at p526)
13. The rules as to standing are the same whether the plaintiff seeks a
declaration or an injunction. In Boyce v. Paddington Borough
Council (1903) 1
Ch 109, at p 114 , Buckley J. stated the effect of the earlier authorities as
follows:
"A plaintiff can sue without joining the Attorney-General in two cases:
first, where the interference with the public right
is such as that some
private right of his is at the same time interfered with . . . ; and,
secondly, where no private right is interfered
with, but the plaintiff, in
respect of his public right, suffers special damage peculiar to himself from
the interference with the
public right."
The rule thus stated received the approval of the House of Lords in London
Passenger Transport Board v. Moscrop (1942) AC 332; esp
at pp 344-345 .
However in Attorney-General; Ex rel. McWhirter v. Independent Broadcasting
Authority (1973) QB 629, at p 649 , Lord
Denning M.R. suggested that an
individual member of the public can apply for a declaration or an injunction
"if the Attorney-General
refuses leave in a proper case, or improperly or
unreasonably delays in giving leave, or his machinery works too slowly". In
Gouriet
v. Union of Post Office Workers [1977] UKHL 5; (1978) AC 435 the House of Lords
disapproved of this dictum and, after a full consideration
of the
authorities,
rejected the notion
that the question of standing is one that lies within the
discretion of the court, and reaffirmed
that a private individual has standing
to seek a declaration or an injunction to enforce a public right or prevent a
public wrong
only in the cases mentioned in Boyce v.
Paddington Borough
Council: see particularly at pp. 483-484, 494-495, 501-502, 513-515, 518.
The
general principle stated in Gouriet
v. Union of Postal Workers, that a private
person, who is in the same situation as any other
member of the public, has no
standing
to claim either an injunction or a declaration to enforce a public
right or duty, has been
consistently applied in this Court. (at
p527)
14. Although the general rule is clear, the formulation of the exceptions to
it which Buckley J. made in Boyce v. Paddington Borough
Council is not
altogether satisfactory. Indeed the words which he used are apt to be
misleading. His reference to "special damage"
cannot be limited to actual
pecuniary loss, and the words "peculiar to himself" do not mean that the
plaintiff, and no one else,
must have suffered damage. However, the expression
"special damage peculiar to himself" in my opinion should be regarded as
equivalent
in meaning to "having a special interest in the subject matter of
the action". The words appear to have been understood in this sense
by
Viscount Maugham in London Passenger Transport Board v. Moscrop (1942) AC, at
p 345 , and by Lord Wilberforce and Lord Edmund-Davies
in Gouriet v. Union of
Post Office Workers (1978) AC, at pp 482, 514 . In this Court, the law was
stated in a way that supports that
view in Anderson v. The Commonwealth [1932] HCA 2; (1932)
47 CLR 50 . In that case, the plaintiff claimed that an agreement between
the
Commonwealth
and a State restricting the importation
of sugar into the
Commonwealth was illegal and invalid. He alleged that
he was interested
in the
matter as a member of the public.
It was held that he had no locus standi. In
a joint judgment delivered
by Gavan Duffy C.J.,
Starke and Evatt JJ., it was
said (1932)
47 CLR, at pp 51-52 :
"But the Agreement made by the Commonwealth, and its prohibition, affect
the public generally and the plaintiff has no interest
in the subject matter
beyond that of any other member of the public: he has no private or special
interest in it. Great evils would
arise if every member of the Commonwealth
could attack the validity of the acts of the Commonwealth whenever he thought
fit; and
it is clear in law that the right of an individual to bring such an
action does not exist unless he establishes that he is 'more
particularly
affected than other people' (see Brice on Ultra Vires, 2nd ed., p. 366)."
Again, more recently, the majority of this Court applied a similar test in
Robinson v. Western Australian Museum
(1977) 138 CLR
283,
at pp 292-293,
301-303, 327-328 . Although, in some cases (such as Thompson v. Randwick
Municipal Council [1953]
HCA 75; (1953) 90 CLR 449 ) the
formula of Boyce v. Paddington
Borough Council is, naturally enough, repeated, the broad test of
special
interest is, in my opinion,
the proper one to apply. (at p528)
15. The question whether a private person has standing in particular circumstances has been considered in many cases, which will be found discussed by Professor Heydon in Stein, Locus Standi, pp. 39-40, 45-54 and in Whitmore and Aronson, Review of Administrative Action, pp. 330-337, 480. It is not necessary for me to consider the manner in which the principle which I have stated should be applied in circumstances which do not now arise, and it would not be profitable to do so, because, as Mason J. said in Robinson v. Western Australian Museum (1977) 138 CLR, at pp 327-328 , the "cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another". (at p528)
16. Counsel for the Foundation frankly invited us to disregard the existing authorities and devise a new rule of our own, allowing standing to any private citizen to enforce public duties, unless the court in its discretion considered it inadvisable that the action should be allowed to proceed. It is by no means obvious that a rule which leaves it to the Crown (through its representative the Attorney-General) to enforce public duties, and denies standing to a citizen who has no special interest, is a bad one - something can be said on both sides of the question. The present case provides an example of the disadvantages entailed by the rule suggested by the Foundation: a decision to approve of an exchange control transaction, the precise nature of which is unknown to the plaintiff, and which, for all the plaintiff knows, has been carried through to completion, might be set aside at the instance of a complete stranger. In any case, if the law is settled, it is our duty to apply it, not to abrogate it. It is for the Parliament, whose members are the elected representatives of the people, to change an established rule if they consider it to be undesirable, and not for judges, unelected and unrepresentative, to determine not what is, but what ought to be, the law. (at p529)
17. In support of their argument, counsel for the Foundation referred us to cases decided in the Supreme Court of Canada and the Supreme Court of the United States. In Thorson v. Attorney-General (Canada) (No. 2) (1974) 43 DLR (3d) 1 , Laskin J. (as he then was), who delivered the judgment of the majority of the Supreme Court of Canada, accepted that, in cases where no question of constitutionality of legislation is involved, "a private person who seeks relief from what is a nuisance to the public must show that he has a particular interest or will suffer an injury peculiar to himself if he would sue to enjoin it" (1974) 43 DLR (3d), at p 10 . Laskin J., however, declined to apply this principle to cases where the validity of legislation was challenged, and said (1974) 43 DLR (3d), at p 18 : "where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, the court must be able to say that as between allowing a taxpayer's action and denying any standing at all when the Attorney-General refuses to act, it may choose to hear the case upon the merits." That decision was followed in Nova Scotia Board of Censors v. McNeil (1975) 55 DLR (3d) 632 , another constitutional case. There appears to be a difference of opinion between some of the provincial Supreme Courts on the question whether the principle of these cases can be extended to other than constitutional cases: compare Rosenberg v. Grand River Conservation Authority (1976) 69 DLR (3d) 384 with Stein v. City of Winnipeg (1974) 48 DLR (3d) 223 , and Attorney-General (Nova Scotia) v. Bedford Service Commission (1976) 72 DLR (3d) 639 . I do not understand - although it is not for me to say - that the Supreme Court resolved this controversy when Attorney-General (Nova Scotia) v. Bedford Service Commission was taken on appeal (1977) 80 DLR (3d) 767 . Laskin J., in Thorson v. Attorney-General (Canada) (No. 2) (1974) 43 DLR (3d) 1 , stated the law, in other than constitutional cases, much as I have stated it, and the facts of the present case do not call for any consideration of the development which the rule has undergone in Canada in constitutional cases. (at p530)
18. Although we naturally regard the decisions of the Supreme Court of the United States with the greatest respect, it must never be forgotten that they are often given against a different constitutional, legal and social background from that which exists in Australia. The decisions of the Supreme Court on the question of standing often depend upon the effect of Art. III s. 2 of the Constitution of the United States which limits federal jurisdiction to "cases" and "controversies". However, it is interesting to observe that the test which was stated in Baker v. Carr [1962] USSC 48; (1962) 369 US 186, at p 204 (7 Law Ed 2d 663, at p 678) , and adopted by Murphy J. in Robinson v. Western Australian Museum (1977) 138 CLR, at p 344 , appears to be similar to that which, as I have said, should be applied in Australia. That test, according to a statement in Warth v. Seldin [1975] USSC 138; (1975) 422 US 490, at pp 498-499 (45 Law Ed 2d 343, at p 354) approved in Simon v. Eastern Kentucky Welfare Rights Organization [1976] USSC 95; (1976) 426 US 26, at p 38 (48 Law Ed 2d 450, at p 460) , "is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf". (at p530)
19. In New Zealand, the statement of principle in Boyce v. Paddington Borough Council (1903) 1 Ch 109 and London Passenger Transport Board v. Moscrop (1942) AC 332 has been followed: see Collins v. Lower Hutt City Corporation (1961) NZLR 250, at p 254 ; New Zealand Institute of Agricultural Science v. Paparua County (1969) NZLR 653, at p 660 . (at p530)
20. I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, 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 a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it. (at p531)
21. It is quite clear that when the rule is thus understood, the Foundation has no special interest in the preservation of the environment at Farnborough, and of course none in Iwasaki's exchange control transactions. Counsel for the Foundation sought to show an interest in two alternative ways - first, because of the nature of the Foundation and its objects and, secondly, because of the fact that it had sent written comments when the draft environmental impact statement was made available for public comment. The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest - and it is most unlikely that any would have a special interest to challenge the exchange control transaction - it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it: see Victorian Chamber of Manufactures v. The Commonwealth ("Prices Regulations") [1943] HCA 19; (1943) 67 CLR 335, at p 343 ; Real Estate Institute of N.S.W. v. Blair [1946] HCA 43; (1946) 73 CLR 213, at pp 224, 226, 228 ; British Medical Association v. The Commonwealth [1949] HCA 44; (1949) 79 CLR 201, at p 257 . (at p531)
22. The fact that the Foundation had sent written comments which Iwasaki was
required to take into account in revising its draft
environmental impact
statement did not give the Foundation standing to bring the present action. A
person who is concerned enough
about proposed action to furnish his comments
on it does not necessarily have any interest in the proposed action in the
relevant
sense. The fact that the Foundation sent the written comments, as
permitted by the administrative procedures, is logically irrelevant
to the
question whether it has a special interest giving it standing. That fact would
only have some significance in relation to
this question if the administrative
procedures revealed an intention that a person who sent written comments
thereby acquired further
rights. As I have endeavoured to show, that is not
the case. In support of this branch of the argument, we were referred to
Sinclair
v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 . In that case, a
person who had been an objector on the hearing
of certain applications
before
a mining warden
sought, and in this Court obtained, mandamus requiring the
warden to hear the application
and objections according
to law. The objector
had no special interest, but represented a section of the public. However, it
was not
in question that he had
a right to have his
objection heard before the
warden. Barwick C.J. said (1975) 132 CLR, at p 478 :
"The appellant, having been an objector before the warden, had a right
to have the hearing of the application conducted, and
the warden consider the
application and the objections and make his recommendation according to law.
If the application has not been
so heard and determined, he is a proper party
to seek a mandamus to compel the hearing to be had according to law . . . "
That passage clearly brings out the point of distinction between that case and
the present - there the objector had a right which
he was entitled to enforce;
here, the person submitting the written comments had no further right. Other
cases concerning the position
of objectors are similarly distinguishable. One
such case, National Trust of Australia (Vict.) v. Australian T. & G. Mutual
Life
Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 , raised the question whether the
National Trust of Australia (Vict.) came within the description
of any person
"who,
being an objector, feels aggrieved" within the meaning of s. 19 of the
Town and Country Planning Act 1961 (Vict.).
The Full Court of the Supreme
Court of Victoria, which answered this question in the affirmative, took into
consideration
the fact
that the objects of the Trust were public and general,
and that it had been accorded recognition in a number of statutes,
including
the Historic Buildings Act 1974 (Vict.), and was "thus regarded as
representative of cultural interests centred upon buildings of
historical,
architectural, or other
special interest of a like nature" (1976) VR, at p 605
. This case turned on the construction
of a statute different from that in
question in the present case. Moreover, the Foundation has not been accorded
recognition by any
statute comparable to the Historic Buildings Act. For these
reasons this decision is of no assistance in deciding the present case.
(at
p532)
23. Finally, it was submitted that the question of standing should not be dealt with as a preliminary issue, but should await decision until the merits of the case have been examined. In Robinson v. Western Australian Museum (1977) 138 CLR, at p 302 , I pointed out that the court has a discretion whether to determine the question of standing immediately or to proceed to deal with the merits without first resolving the question of standing. In the present case, in my opinion, it was clearly more convenient to deal with the question of standing, as Aickin J. did, before proceeding to consider the merits. (at p533)
24. For these reasons, Aickin J. was correct in holding that the Foundation had no locus standi to maintain the proceedings, and in striking out the statement of claim. (at p533)
25. I would dismiss the appeal. (at p533)
STEPHEN J. This is an appeal from an order of Aickin J., which he made on the application of the present respondents. His Honour struck out the appellant's statement of claim and dismissed the action instituted by it against the respondents. His Honour so ordered because of what he regarded as the lack of standing of the appellant to maintain the proceedings which it had instituted. (at p533)
2. The appellant is a body corporate. Its main object, as appearing in its constitution, may compendiously be described as concern with conservation of the environment. The proceedings it instituted related to an environmental impact statement ("an E.I.S."), the preparation of which was associated with the proposed development of a resort and tourist area at Farnborough, near Yeppoon in Queensland. (at p533)
3. Iwasaki Sangyo Company (Australia) Pty. Ltd. is the intending developer and operator of this Farnborough project. It apparently found it necessary in 1978 to seek the approval of the Reserve Bank of Australia in relation to some aspect of the financing of this project. The details of this neither appear in the material before this Court nor are they of relevance; suffice it to say that approval was sought for certain "exchange control transactions". The third named respondent, as Commonwealth Minister of State for Environment, thereupon directed the preparation of an E.I.S. in relation to the decision to be made by the Reserve Bank whether or not to grant that approval. (at p533)
4. The preparation of such statements is envisaged by the Environment Protection (Impact of Proposals) Act 1974 (Cth). The object of that legislation is described at length in s. 5; broadly speaking, it is to ensure that the Commonwealth government and its authorities take full account of matters affecting the environment when making and carrying out decisions. Section 6 (1) provides in some detail for the making of orders-in-council approving administrative procedures relating to E.I.S.'s so as to achieve the object of the Act. (at p533)
5. Such an order has been made under s. 6 (1); it is entitled Administrative Procedures under the Environment Protection (Impact of Proposals) Act 1974-1975 ("the Procedures"). Under the Procedures the responsible Minister, the Minister of State for Environment, designates a person or Department as the proponent of any "proposed action" by the Commonwealth, or by an authority of the Commonwealth. The proponent, who may not be the person who is to take the proposed action, must, once designated, thereafter ensure compliance with the procedures. He must supply information to the Minister about the proposed action and the Minister or his Department may then conclude, for a variety of specified reasons, that the proposed action calls for the preparation of an E.I.S.; if so, the proponent is directed to prepare it in conformity with the procedures. This may, and did in the present case, first involve the preparation of a draft E.I.S., which is made available for public comment. The proponent must give notice by advertisement of where the public may examine the draft E.I.S. and of an address to which "interested persons and bodies are invited to send written comments on the proposed action". (at p534)
6. All this occurred during the first half of 1978 in relation to the decision that was to be made concerning exchange control transactions affecting the Farnborough project. By 23rd June 1978 what purported to be a draft E.I.S. was made available for public inspection. The appellant examined it and had, by 20th July 1978, submitted written comments upon it. The appellant makes no complaint of what occurred to this stage save that it says that the purported draft E.I.S. did not comply with the requirements of the Procedures, being so inadequate as not properly to constitute such an E.I.S. as is contemplated by those Procedures. (at p534)
7. The Procedures require a proponent to revise its draft E.I.S. so as to take into account the written comments which it may receive. The E.I.S., as thus revised, must also contain a summary of, or must include in full, such written comments as have been received. Upon such revision it becomes a final E.I.S., which must, "as soon as possible after revision", be made available to the Department and also to any person who has supplied written comments. (at p534)
8. What next occurred, so far as the appellant was concerned, was that on 26th July 1978, soon after it had submitted its written comments, the acting Minister for Environment made a press statement, the effect of which appears to have been that some so-called environmental clearance would be granted for the Farnborough project. This was followed, on 30th July 1978 and before any final E.I.S. had been submitted, by the making of the relevant decision approving of the exchange control transactions, despite the fact that the E.I.S. was originally sought only so as to permit of matters affecting the environment being taken into account before the making of that decision. (at p534)
9. The appellant immediately wrote to the Minister for Environment complaining that the requirements of the Act and Procedures were not being observed and threatening legal action. It was not until 29th August 1978 that either the appellant or the Minister received a copy of what purported to be the final E.I.S. By letter dated 11th September 1978 the Minister replied at some length to the appellant's complaints. From that letter it would seem that, when the draft E.I.S. and comments upon it had been received, discussion had taken place between the intending developer and officers of the Department. As a result, those officers had concluded that there was "no objection, from the environmental viewpoint, to the proposal receiving overall approval in principle"; hence, apparently, the Ministerial press statement of 26th July. (at p535)
10. Argument upon the respondents' application to strike out the statement of claim and dismiss the action proceeded, as it has upon this appeal, upon the footing of the allegations contained in the appellant's pleading. In fact some of these allegations are borne out by the Minister's letter of 11th September and it seems clear that there did occur some substantial departures from what the Procedures prescribe. The purported final E.I.S. is said by the appellant to be as inadequate as was the earlier draft E.I.S. and to lack either a summary of, or the full text of, the appellant's comments. Neither document is in evidence and the correctness of this allegation, were it material on the present application, must remain open. However the appellant's complaints go deeper. The appellant not only complains that it was a month after the relevant decision was made that for the first time it received from the proponent anything, however inadequate, which might answer the description of a final E.I.S.: more importantly, it draws attention to the date upon which that document was received by it, 29th August 1978, which was also, according to the Minister's letter of 11th September 1978, the date upon which the Department itself first received the final E.I.S. from the proponent. It follows, so says the appellant, that the Minister's decision, which should have been reached only after consideration of the final E.I.S., in fact preceded it by almost two months and, so it is said, must necessarily have been made without regard to it. It is upon this that the appellant's principal contentions are founded. It contends that the consequence must be that the decision itself is a nullity. (at p535)
11. The relief which the appellant sought consisted of declarations, injunctions and other orders. The first declaration sought was that the decision approving of the exchange control transactions was void. There followed claims to other declarations, most of which related to the obligations said to be imposed upon various of the respondents by the Act and Procedures and to their failure to perform those obligations. The injunctions sought to restrain the respondents from acting upon the decision and also from making any further decision unless there had first been prior compliance with the Act and Procedures: the orders were designed to ensure such compliance. (at p536)
12. In striking out the appellant's statement of claim and dismissing its action for want of standing to sue, Aickin J. applied the well known principle stated by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 and recently applied in Gouriet v. Union of Post Office Workers [1977] UKHL 5; (1978) AC 435 . After reference to other authorities his Honour concluded that neither the Act nor the Procedures gave to a private plaintiff such as the appellant any cause of action and that, unless the appellant was in some way adversely affected to an extent greater than the public generally, it could not maintain the present proceedings. His Honour distinguished the position in relation to certain of the prerogative writs and concluded that questions of standing must relate to the particular relief which is claimed. The primary relief which the appellant claimed being a declaration that the decision made was invalid, it had, he thought, no standing to seek that remedy because it had suffered no special damage peculiar to itself. The same might be said of the remainder of the relief sought. His Honour concluded that he should not deny to the respondents, even at this interlocutory stage, the relief they were entitled to, that it would be wrong to allow the matter to go to trial. Accordingly his Honour made the orders sought by the respondents in their summons, striking out the statement of claim and dismissing the action. (at p536)
13. One particular aspect of the matter not yet mentioned should be shortly referred to. Section 10 of the Act entitles any person to require the Minister to inform him in writing of what action has been taken or is proposed for ensuring consideration of environmental aspects and the Minister is required promptly to inform the person in writing accordingly. The appellant's statement of claim alleged breach of this duty and sought a declaration accordingly. His Honour held the provision as to prompt reply to be only directory and to be, in any event, quite unrelated to the other relief claimed. That it is unrelated and, in the event, inconsequential is, I think, clear. I mention it only to dispose of it. It is to the subject matter of what his Honour described as the primary relief claimed, the invalidation of the decision, that I will confine myself. (at p536)
14. As a result of what is alleged to have occurred the appellant has not suffered, nor can it apprehend, any loss or injury to its property. Indeed nothing could be further from its mind. Its concern is not to protect or advance its own material interests or those of its members. It is, on the contrary, a disinterested body concerned to protect the environment from insult, doing so in what it regards as the interests of the community at large. It views the Farnborough proposal as environmentally unsound and the decision to approve the enabling "exchange control transactions" as wrong accordingly. It no doubt suspects that departure from the course prescribed by the Procedures has prejudiced the prospect of its adverse comments receiving adequate consideration from the proponent or, more importantly, from the Minister and his advisers. At all events, it seizes upon that alleged departure from the course prescribed as providing a ground of invalidity of the decision. The question is whether in the circumstances it has standing to have the decision declared invalid or otherwise to obtain any of the relief which it seeks. (at p537)
15. It is, I think, common ground on this appeal that the general law recognizes no private right of the appellant that has been interfered with. The appellant will accordingly, in the current state of the law, only have standing to sue on one or other of two bases: either because it falls within the principle stated by Buckley J. in Boyce v. Paddington Borough Council or some development of that principle; or because standing has been conferred upon it by statute, in this case by a combination of the Environment Protection (Impact of Proposals) Act and of the Procedures. (at p537)
16. In Boyce v. Paddington Borough Council Buckley J. said (1903) 1 Ch, at p
114 :
"A plaintiff can sue without joining the Attorney-General in two cases:
first, where the interference with the public right
is such as that some
private right of his is at the same time interfered with (e.g., where an
obstruction is so placed in a highway
that the owner of premises abutting upon
the highway is specially affected by reason that the obstruction interferes
with his private
right to access from and to his premises to and from the
highway); and, secondly, where no private right is interfered with, but
the
plaintiff, in respect of his public right, suffers special damage peculiar to
himself from the interference with the public right."
The mode of expression suggests a proposition composed of two limbs, two cases
in which "a plaintiff can sue without joining the
Attorney-General". But his
Lordship's first limb involves no more than that a plaintiff may, without
joining the Attorney-General,
sue for interference to some private right of
his own, regardless of whether there has at the same time been an interference
with
a public right. That this is all that his Lordship intended is clear from
his treatment of the facts and their legal consequences
both in Boyce's Case
(1903) 1 Ch, at pp 113-114 , and in his earlier decision in W.H. Chaplin & Co.
Ltd. v. Westminster Corporation
(1901) 2 Ch 329 . It would, of course, be
surprising if the law were otherwise than as his Lordship stated it, so that
one who suffered
from the infringement of his private right was denied relief,
otherwise than in a relator action, because the wrongdoer had also
infringed a
public right. (at p538)
17. It is his Lordship's second limb which is of significance in the present case. It deals with those cases in which "no private right is interfered with". In such cases, according to his Lordship, a private plaintiff has standing only if he suffers "special damage peculiar to himself from the interference with the public right". The private remedy arises because of infringement of the public right but is dependent upon the suffering of special damage peculiar to the plaintiff. The principle stated in Boyce's Case was approved and relied upon by Viscount Maugham in London Passenger Transport Board v. Moscrop (1942) AC 332, at p 345 and the general rule concerning the enforcement of public rights has very recently been restated by their Lordships in Gouriet v. Union of Post Office Workers. There Lord Wilberforce said (1978) AC, at p 477 , that "in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out." It is to this general rule that Boyce's Case states the exception, dependent upon special damage suffered by an individual. Lord Wilberforce refers to this (1978) AC, at p 483 , as does Viscount Dilhorne (1978) AC, at p 494 , Lord Edmund-Davies (1978) AC, at pp 506, 513 , and Lord Fraser of Tullybelton (1978) AC, at p 518 . (at p538)
18. Only two aspects of the appellant's circumstances in any way relate to what might be thought to answer the description of "special damage peculiar to himself". First is the concern which the appellant has for Australia's environment and what it regards as the particular threat to its preservation represented by the Farnborough development: the question being whether such a concern, coupled with such a perceived threat, can be treated as involving damage to the appellant or at least apprehension of such damage. Secondly, the appellant's role as commentator upon the draft E.I.S., coupled with what is seen as a failure to give proper consideration to those comments, might also be argued as involving an element of special damage peculiar to the appellant. (at p539)
19. As to the first of these aspects, there is no support to be found in existing Australian or English law for regarding it as giving standing to sue. An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern. That it is a body corporate rather than an individual which seeks to do so cannot of itself alter that position; the fact that that body corporate has as its main object the voicing, and encouragement in the community, of just such a concern no doubt ensures that what it does to give effect to such an object will not be ultra vires; it will not otherwise improve its position. To say this is not merely narrowly to rely upon the precise limits to standing suggested by what was said by Buckley J. in Boyce's Case. Let it be assumed that the damage need be no more than apprehended, that it need not be damage to a property right recognized by the law and that it need not be so peculiar to the would-be plaintiff that no-one else suffers it. Even so, the appellant clearly enough fails to establish standing to sue on the basis of damage suffered by itself. For it to succeed upon this particular ground the law must be that any person with genuinely held convictions upon a topic of public concern thereby acquires standing to enforce a public right to breach of which it takes exception. That is not the current state of the law. To hold otherwise would be radically to alter the existing law as it now stands. (at p539)
20. In the United States a deal of judicial consideration has been given to the standing to sue of groups possessing just such a concern for the environment as that affecting the appellant. There Congress has expressly conferred standing upon those suffering "legal wrong because of agency action, or adversely affected or aggrieved" by such action - Administrative Procedure Act, s. 10 (5 U.S.C., par. 702) and perhaps the most celebrated recent cases on the question of standing, cases such as Sierra Club v. Morton [1972] USSC 84; (1972) 405 US 727 (31 Law Ed 2d 636) , and United States v. Students Challenging Regulatory Agency Procedures [1973] USSC 148; (1973) 412 US 669 (37 Law Ed 2d 254) , have turned upon the meaning of that section. Those cases have held that more than a general concern for the environment is necessary to come within the section, there must be "injury in fact" to an interest "arguably within the zone of interests to be protected or regulated" by the statutes breach of which is sought to be complained of - Sierra Club (1972) 405 US, at p 733 (31 Law Ed 2d, at p 642) . However, threatened injury, in the sense of harm to be suffered in the use and enjoyment by the plaintiffs of particular national resources, is enough to constitute "injury in fact", and this regardless of whether many others will also suffer that harm - United States v. Students Challenging Regulatory Agency Procedures (1973) 412 US, at pp 686-687 (37 Law Ed 2d, at p 269) . But that apprehended harm must be perceptible and must be harm which will be suffered by the plaintiffs themselves, otherwise the judicial process becomes "no more than a vehicle for the vindication of the value interests of concerned bystanders" (1973) 412 US, at p 687 (37 Law Ed 2d, at p 269) . (at p540)
21. In cases in which United States courts have been concerned with questions of standing unaided by a legislative provision such as the Administrative Procedure Act it has been said that the applicant must have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions": Baker v. Carr [1962] USSC 48; (1962) 369 US 186, at p 204 (7 Law Ed 2d 663, at p 678) . As appears from that case itself, which arose in a constitutional setting, this requires that the applicant should be seeking to protect or vindicate an interest of his own. (at p540)
22. It follows that, as I understand the relevant United States decisions, they would not go so far as to entitle the appellant to standing where the basis for standing is confined to a concern regarding threatened detriment to the environment. A review of the Canadian authorities cited in argument indicates that, at least where no constitutional challenge to the validity of provincial or federal legislation is in question, the position is no different in Canada. (at p540)
23. If the present state of the law in Australia is to be changed, it is pre-eminently a case for legislation, preceded by careful consideration and report, so that any need for relaxation in the requirements for locus standi may be fully explored and the limits of desirable relaxation precisely defined. Just such an investigation is at present being undertaken by the Australian Law Reform Commission. (at p540)
24. The facts which give rise to the second possible source of special damage, the appellant's role as a commentator whose comments have not been properly dealt with, may also form some foundation for what I have described as the quite distinct alternative basis for standing, founded not upon public wrong with special damage but upon the existence of rights conferred by statute, the exercise and enjoyment of which the law will protect by according standing to sue. Statutes may of course confer standing in express terms: a recent example is the provision of the Trade Practices Act 1974 (Cth) which was considered in Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Pty. Ltd. [1978] HCA 11; [1978] HCA 11; (1978) 140 CLR 216 and again in Phelps v. Western Mining Corporation Ltd. (1978) 33 FLR 327; 20 ALR 183 . But they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J. spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. My examination of the effect of the statute and the Procedures is made primarily with this preferred approach in mind. (at p541)
25. In the present case it must be largely in the Procedures that any such right is to be looked for. Sections 11 to 24 of the Act are of no present relevance, being concerned only with inquiries by Commissioners; only ss. 5 to 8 are directly concerned with E.I.S. Of these four sections the principal provision is s. 6, which confers wide powers to create administrative procedures. Because of the width of that grant of power, it is in the particular mode of its exercise, by means of Procedures, that such a right, if it exists, will be found. I put aside for the moment the question of whether those Procedures are legislative in character and perhaps capable of conferring rights enforceable at law, or are merely administrative rules, laid down by the Executive to govern the conduct of officers in carrying out matters of administration. Instead I assume for the moment that the Procedures are of such a nature as to be inherently capable of containing provisions which may confer rights enforceable at law. (at p541)
26. The first relevant provision of the Procedures is that in par. 6.2.1, which requires the E.I.S. to be "made available for public comment". Par. 6.3.1. then goes on to require a proponent, inter alia, to give notice both of the draft E.I.S. having been made available for public comment and of an address to which "interested persons and bodies are invited to send written comments on the proposed action". It was in response to such an invitation that the appellant supplied its comments. (at p541)
27. Paragraph 6.5 requires copies of any written comments "received" to be provided to "the Department and the proponent". This provision is obscure in meaning. But for its last words the reference to "received" would suggest that it was for the proponent to provide those copies. However it cannot be intended that it should provide them to itself: seemingly it is the person making the comments who is to supply copies to the Department; yet, if so, why must he also supply a copy to the proponent, having already sent his comments to the address notified for that purpose by the proponent under par. 6.3.1? These obscurities need not now be resolved. It is enough to note that by one means or another the written comments reach not only the proponent but also the Department. (at p542)
28. Once a commentator upon a draft E.I.S. has supplied his comments, he has no further active role: the only further reference made to him is in par. 8.2 (c), which requires the proponent to provide a copy of the final E.I.S. to, inter alia, any person who has made written comments. A commentator has conferred upon him no right to be heard or to make further representations. He is in no sense made a party to any lis. This is not to say that his role is not an important one: it is by means of his comments that the Department, and through it the Minister, may be exposed to submissions made from a point of view different from that of the proponent. The proponent, too, may thus learn of aspects of the proposal of which it was insufficiently or inaccurately informed. However the commentator's role is fulfilled once the comments are received by the proponent and by the Department. (at p542)
29. In these circumstances it is not easy to see what right or status is created by the Procedures which would enable a commentator, once his comments have been received both by proponent and Department, to have standing to complain of matters occurring thereafter. The Procedures suggest that what happens thereafter is no particular affair of his, his having supplied comments does not of itself seem to confer upon him any right or interest in subsequent events greater than that of any other member of the community. (at p542)
30. The appellant points, by way of analogy, to cases in which a statutory entitlement to notice is said to have been sufficient to give standing to sue. In S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [1964] VicRp 32; (1964) VR 229 an applicant for a permit to use land in a particular way failed to observe statutory requirements as to the form of notice to be given to owners and occupiers of land in the vicinity. Notice was required to be given because the proposed use had been held to be one which might cause substantial detriment to others. The plaintiff was an owner or occupier of land in the vicinity and it was upon such notices that he and others in the vicinity depended both for knowledge of the proposed use and for the opportunity, through knowledge of the application, of objecting to the grant of any permit. The plaintiff as a person within the range of possible detriment was thus very substantially concerned with the form of notice and with the extent of disclosure which it effected. As Gillard J. observed (1964) VR, at p 245 , its purpose was to give "clear information" to those who might be prejudiced by the proposal so that a "proper understanding of the effect of the permit" might be gained from it. It was in these circumstances that his Honour held that the plaintiff had standing since the statute gave it the right to notice of the application for a permit "and to object thereto". The contrast between such a case and the present is immediately apparent, the one is in no sense analogous to the other. Likewise in Dajon Investments Pty. Ltd. v. Talbot [1969] VicRp 75; (1969) VR 603, at p 613 , where Pape J. held that neighbouring landowners had standing to complain of failure to observe statutory requirements which were designed to confer "protection upon those who are likely to suffer a substantial detriment by the grant of a permit". There was, his Honour said, a statutory duty imposed in favour of "individuals who may suffer a substantial detriment". So too in Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272, at p 275 where Bowen C.J. in Eq. said, "the plaintiffs would be directly affected by the proposed development and do have locus standi". (at p543)
31. Other cases, such as National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 , turn upon the quite different question whether, a statute having expressly conferred a right to appeal against the grant of a permit upon a person who "feels aggrieved", the plaintiff was such a person. (at p543)
32. Although a number of other authorities were cited the foregoing appear to me to most nearly make the appellant's point, but, as I have said, they do not come near enough to the mark. Whether they be looked at as, in the context of Boyce's Case (1903) 1 Ch 109 , instances of the taking of a broad view of what may constitute sufficient "special damage" or, perhaps more profitably, as cases where statute has conferred rights the enforcement of which involves standing to sue, the result must be the same: they provide no basis for standing in the present case. (at p543)
33. The appellant did, of course, involve itself in the processes contemplated by the Procedures when it commented upon the draft E.I.S. and it no doubt considers that its comments have not been given that due consideration which the Procedures contemplate. However the appellant does not allege in its pleading (nor perhaps could it do so successfully on the facts of this case so far as they are known) that either the proponent or the Department and the Minister failed to consider those comments. It is of course clear that they failed to give effect to them, but that they were not bound to do. The appellant's complaint, as pleaded, is instead restricted to failure to comply with the Procedures and with the Act, a failure which does not, however, necessarily involve any want of consideration of the appellant's comments. Those comments may, for good or bad reasons, have been considered to call for no alteration to the draft E.I.S. and to constitute no obstacle to the ultimate grant of consent by the Reserve Bank. While none of this may excuse whatever disregard of the Procedures may have occurred, it does, I think, reflect upon the appellant's interest in the proceedings: even if the appellant had an enforceable right to have its comments considered, the disregard of the Procedures is not shown to have deprived it of that right. (at p544)
34. Again, the subject matter of the Procedures is such as to suggest that
the appellant has no standing to enforce compliance with
them. They are not a
code of procedure, such as is familiar in town planning legislation, designed
to ensure that those who are likely
to be affected by the grant of some permit
or the rezoning of some land are given a right to object and to have their
objection heard
and determined. On the contrary, s. 5 (1) of the Act makes it
quite clear what Parliament was about when it enacted this legislation.
The
sub-section speaks for itself:
"The object of this Act is to ensure, to the greatest extent that is
practicable, that matters affecting the environment to
a significant extent
are fully examined and taken into account in and in relation to:"
(the various actions and decisions which are there specified in its five
subparagraphs).
"by, or on behalf of, the Australian Government and authorities of
Australia, either alone or in association with any other government,
authority, body or person." (at p544)
35. As already noted, it is "for the purpose of achieving the object of this
Act" that s. 6 provides for the approval of "administrative
procedures" by
order-in-council. The whole concept is, then, that "administrative procedures"
should be established so as to achieve
the object of ensuring, in relation to
actions and decisions of government, as full an examination as is practicable
by the Department
and the Minister of matters affecting the environment. This
is to be achieved with the aid of environmental impact statements. But
the
ultimate decision of the Minister or of his Department of Environment is not
in any way shackled by the E.I.S. procedure, still
less by such comments as
others may contribute: on the contrary the E.I.S. is only an aid to
decision-making. When a final E.I.S.
emerges from the process prescribed by
the Procedures there then follow Ministerial and Departmental "comments,
suggestions and recommendations
concerning the proposed action" - Procedures,
par. 9.3; these may prove to be directly contrary either to the conclusion of
the E.I.S.
or of the comments of third parties. And in the upshot all that
must occur is that all Government Ministers must ensure that the
E.I.S. and
any such Ministerial or Departmental suggestions or recommendations are "taken
into account" - Procedures, par. 9.5 and
s. 8. Environmental considerations
are made of mandatory relevance to the decision-making process, but compliance
with such conclusions
concerning the environment as emerge from the process is
not made a condition precedent to government action. The only role for members
of the public who make comments on a draft E.I.S. is that of providing
information and expressing views, the decision-making function
remaining
wholly that of government. (at p545)
36. That this is so is no more than a consequence of the nature of the proposed actions with which the Act and Procedures are concerned. As the terms of s. 5 of the Act and the definition of "proposed action" in the Procedures make clear, it is action proposed by the Executive arm of government with which an E.I.S. is concerned. Occasionally, as in the present case, that executive action will consist of the granting of some executive consent, the grant of which is itself incapable of direct environmental detriment but which may produce that result at second-hand, by permitting some development by private enterprise which could not proceed without it. But it is executive action generally that is aimed at. As the long title to the Act describes it, this is legislation "to make provision for Protection of the Environment in relation to Projects and Decisions of, or under the control of, the Australian Government". The Minister's concern is to ensure that, "to the greatest extent that is practicable", matters affecting the environment are taken into account in the taking of executive action. (at p545)
37. This legislation, and the role of the Minister under it, is, therefore, entirely different from legislation under which a Minister, or tribunals appointed by him, adjudicate as between parties, an applicant and objectors to that application, in town planning or local government matters or adjudicate as between a citizen and some government department which has denied him a benefit to which he lays claim. Here no quasi-judicial function is in question, nor any dispute involving a private individual and calling for resolution. The Minister is charged, rather, with wholly executive functions, in the performance of which he has the assistance thought to be provided by an E.I.S. If that E.I.S. is less informative than it should be, due either to its initial inadequacy or to its failure to reflect in its final form those comments critical of it which may have been made, it is the Minister who is to that extent the loser since the assistance he receives from the E.I.S. is the less. It is his loss and not that of any third party, whether or not it may have been the supplier of critical comments. (at p546)
38. When the legislation is regarded in this light, as I think its true light, the absence of any standing to sue on the part of the appellant becomes self-evident. (at p546)
39. There remain three matters to which I should make brief reference. The first concerns the appellant's submission that Aickin J. was in any event wrong to entertain the challenge to standing without a hearing on the merits. It was conceded in argument that this was properly a matter for the exercise of discretion but it was said that in this instance the exercise of the discretion miscarried. All I wish to say as to this is that in my view this was a proper case in which to hear the objection as to standing as a preliminary issue; both cost and convenience pointed in that direction and there were, I think, no aspects relevant to the issue of standing which would depend, either for their existence or for some added weight, upon a full hearing on the merits. (at p546)
40. The second matter concerns the juristic nature of the rules of conduct prescribed in the Procedures. To ask whether they are delegated legislation or only mere rules of executive conduct perhaps does not much advance matters: see Pearce, Delegated Legislation (1977), pp. 1-2. The important question is whether breach of the rules which they prescribe results in a justiciable issue, in the sense of an issue which, given a plaintiff having locus standi, the courts will entertain. If not, this would provide a short answer to the present appeal: I imagine that no court would, even at the suit of the Attorney-General, entertain proceedings which complain of breach of, for example, some rule made by a departmental head concerning procedures to be followed within his department. (at p546)
41. An article by R. J. Fowler in the Melbourne University Law Review, vol. 11(1977), pp. 1-31, contains, at pp. 4-6, an interesting examination of this question. Since the question was but barely touched upon in argument and as I am in any event, and on other grounds, in favour of dismissing this appeal I have thought it proper to assume in favour of the appellant that a justiciable issue is here involved, a view which, as at present advised, I in any event prefer and which I think, also accords with the preference expressed by Mr Fowler in his article. (at p547)
42. The third matter which may call for passing mention is, no doubt, obvious enough. It is that all that I have said as to standing to sue is to be understood in the particular context of the present proceedings, which neither challenge constitutional validity nor seek relief by way of prerogative writ. (at p547)
43. I would dismiss this appeal. (at p547)
MASON J. I agree for the reasons given by Gibbs J. that, apart from s. 10 on which ultimately the appellant placed no reliance, neither the Environment Protection (Impact of Proposals) Act 1974 ("the Act") nor the Administrative Procedures confers any rights on an individual or corporation which has furnished comments pursuant to sub-par. 6.3.1 (d) of the Administrative Procedures. Consequently, the appellant's action was brought, not to enforce a private right or interest, but to prevent a public wrong arising from a failure on the part of one or more of the respondents and Iwasaki Sangyo Company (Australia) Pty. Ltd. to comply with the prescribed procedures. (at p547)
2. I also agree with Gibbs J. that, apart from cases of constitutional validity which I shall mention later, a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty. (at p547)
3. Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests (as to which see New South Wales Fish Authority v. Phillips (1970) 1 NSWR 725 ) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v. Western Australian Museum (1977) 138 CLR, at pp 327-328 : "The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another." (at p548)
4. In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. I entirely agree with Gibbs J. when he says that "A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi". (at p548)
5. Nowhere in the common law world is authority to be found for the appellant's wide-ranging proposition. It finds no support in the Australian, United Kingdom, New Zealand and Canadian decisions. The United States decisions, upon which the appellant chiefly relied, though they concede locus standi to a broader range of interests than those thus far recognized in Australia and the United Kingdom, explicitly deny the appellant's proposition. In denying it they also reject the appellant's related proposition that a corporation whose primary object is to protect and preserve the environment has, by virtue of that characteristic alone, a locus standi to challenge any decision which may produce direct or indirect consequences adverse to the environment. (at p548)
6. In Sierra Club v. Morton [1972] USSC 84; (1972) 405 US 727 (31 Law Ed 2d 636) , the Sierra
Club, a corporation which, in accordance with its
objects, took a special
interest
in conservation and sound maintenance of national parks, game refuges
and forests, sought a declaration
and an injunction to restrain
the approval
of a ski-ing development in the Mineral King Valley. The petitioner did not
allege that
the proposed development would
affect the club or its members in
their activities or that they used Mineral King. The essence of
the claim was
that the club was
formed with an object giving it a special interest in
environmental protection, that it pursued this
object and that the proposed
development would adversely affect the environment. The Supreme Court held
that the petitioner lacked
standing to seek judicial review
because it did not
allege that it had suffered or was likely to suffer injury, economic or
otherwise.
Stewart J., delivering the
opinion of the Court, said (1972) 405
US, at pp 739-740 (31 Law Ed 2d, at pp 645-646) :
"But a mere 'interest in a problem,' no matter how longstanding the
interest and no matter how qualified the organization is
in evaluating the
problem, is not sufficient by itself to render the organization 'adversely
affected' or 'aggrieved' within the
meaning of the APA. . . . But if a
'special interest' in this subject were enough to entitle the Sierra Club to
commence this litigation,
there would appear to be no objective basis upon
which to disallow a suit by any other bona fide 'special interest'
organization,
however small or short-lived. And if any group with a bona fide
'special interest' could initiate such litigation, it is difficult
to perceive
why any individual citizen with the same bona fide special interest would not
also be entitled to do so. The requirement
that a party seeking review must
allege facts showing that he is himself adversely affected does not insulate
executive action from
judicial review, nor does it prevent any public
interests from being protected through the judicial process. It does serve as
at
least a rough attempt to put the decision as to whether review will be
sought in the hands of those who have a direct stake in the
outcome." (at
p549)
7. In Simon v. Eastern Kentucky Welfare Rights Organization [1976] USSC 95; (1976) 426 US 26
(48 Law Ed 2d 450) , Powell J., in delivering the opinion
of the Court, after
observing (1976) 426 US, at p 39
(48 Law Ed 2d, at p 461) ,
"But, as this Court emphasized in Sierra Club v. Morton (1972) 405 US, at
p 738 (31 Law Ed 2d, at p 645) , 'broadening the categories
of injury that may
be alleged in support of standing is a different matter from abandoning the
requirement that the party seeking
review must himself have suffered an
injury.' See also United States v. Richardson [1974] USSC 150; (1974) 418 US 166, at p 194 (41
Law Ed 2d 678,
at p 698) , (Powell J., concurring). The necessity that the
plaintiff who seeks to
invoke judicial power stand to profit in some
personal
interest remains an Art. III requirement. A federal court cannot ignore this
requirement without overstepping its assigned
role in our system of
adjudicating only actual cases and controversies."
later said (1976) 426 US, at p 40 (48 Law Ed 2d, at p 461) :
"Our decisions make clear that an organization's abstract concern with a
subject that could be affected by an adjudication does
not substitute for the
concrete injury required by Art. III. Sierra Club v. Morton; see Warth v.
Seldin [1975] USSC 138; (1975) 422 US 490 (45 Law
Ed 2d 343) . Insofar as these organizations
seek standing based on their special interest in the health
problems of the
poor their
complaint must fail. Since they allege no injury to themselves as
organizations, and indeed could not
in the context of this suit,
they can
establish standing only as representatives of those of their members who have
been injured
in fact, and thus could have
brought suit in their own right.
Warth v. Seldin (1975) 422 US, at p 511 (45 Law Ed 2d, at p 362) .
The
standing question in this
suit therefore turns upon whether any individual
respondent has established an actual injury, or whether
the respondent
organizations
have established actual injury to any of their indigent
members." (at p550)
8. These passages make it clear that the case now put forward by the
appellant has been emphatically rejected by the Supreme Court
of the United
States, despite the acceptance by that Court of a broader range of interests
sustaining locus standi than those thus
far accepted in Australia. (at p550)
9. Two additional comments should be made about the Sierra Club and the Simon decisions. They both turn on s. 10 of the Administrative Procedure Act (U.S.) which gives a right to judicial review to any person "adversely affected or aggrieved by agency action". However, the judgments do not indicate that the language of s. 10 has been regarded by the courts as imposing a statutory limitation or restriction on a wider common law concept of locus standi. (at p550)
10. But the judgments do indicate that to concede locus standi to a mere belief or concern on the part of a plaintiff would involve an inconsistency with the provisions of Art. III.2 of the United States Constitution which limit the exercise of the judicial power to the "cases" and "controversies" mentioned in that Article. The presence of this constitutional limitation dictates the acceptance of a concept of locus standi which requires that the plaintiff has a concrete interest, a "personal stake in the outcome of the controversy" (Baker v. Carr (1962) 369 US, at p 204 (7 Law Ed 2d, at p 678) ) and that he should "stand to profit in some personal interest" (the Simon Case (1976) 426 US, at p 39 (48 Law Ed 2d, at p 461) ). (at p550)
11. Although there are obvious similarities between the United States Constitution in its provisions as to judicial power and Ch. III of the Australian Constitution, there are variations. The critical words "cases" and "controversies" do not appear in ss. 75 and 76. Instead, we have the word "matter" which has a different and perhaps, for relevant purposes, a larger meaning (see In re Judiciary Act 1903-1920 and In re Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR 257, at pp 265-266 ; Felton v. Mulligan [1971] HCA 39; (1971) 124 CLR 367, at pp 382, 388, 408-409, 419 ). It is conceivable that a similar limitation may be distilled out of the very nature of the judicial power, for some interpretations which have been placed upon it seem to imply the existence of a right or interest in the plaintiff (see Huddart, Parker & Co. Pty. Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330, at p 357 ), though the United States constitutional limitation seems to have been grounded on the words "cases" and "controversies", not on considerations arising from the nature of the judicial power. (at p551)
12. The possibility that Ch. III of our Constitution does not import the constitutional limitation that underlies the United States decisions is not a ground for rejecting the assistance which they provide. Plainly enough the view of standing which they embrace rests as much on a general legal concept of locus standi and relevant practical considerations as on Art. III. The consequence is that I regard the United States decisions as providing persuasive guidance to the extent to which they decide that the concept of locus standi does not extend to embrace a mere belief on the part of a plaintiff who suffers no injury or damage in consequence of the executive action of which he complains. But my application of this principle to the present case which involves the exercise of federal jurisdiction under Ch. III does not indicate that a limitation similar to the constitutional limitation arising from Art. III.2 bars a legislative expansion of the concept of locus standi in federal jurisdiction under Ch. III. I say nothing on the question whether the Parliament can legislate so as to provide that a mere belief or concern is a sufficient locus standi in federal jurisdiction. I merely note that the decisions which accord to s. 80 (1) (c) of the Trade Practices Act 1974, as amended, a wide interpretation do not examine the constitutional aspects of locus standi - see Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Pty. Ltd. [1978] HCA 11; (1978) 140 CLR 216 ; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [1978] HCA 60; (1978) 142 CLR 113 ; Ex parte Soul Pattinson (Laboratories) Pty. Ltd. [1978] HCA 60; (1978) 142 CLR 113 ; Parish v. World Series Cricket Pty. Ltd. (1977) 16 ALR 172 ; Phelps v. Western Mining Corporation Ltd. (1978) 33 FLR 327; 20 ALR 183 . (at p551)
13. The constitutional cases do not require discussion. They turn on distinct considerations. In Canada it has been decided that "where all members of the public are affected alike . . . and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayer's action and denying any standing at all when the Attorney-General refuses to act, it may choose to hear the case on the merits" (Thorson v. Attorney-General (Canada) (1974) 43 DLR (3d) 1, at p 18 ). But in Australia it has been held so far that a taxpayer has no locus standi to challenge the validity of a statute which authorizes appropriation or expenditure of funds in a suit for declaratory relief (Logan Downs Pty. Ltd. v. Federal Commissioner of Taxation [1965] HCA 16; (1965) 112 CLR 177, at p 187 : cf. Flast v. Cohen [1968] USSC 133; (1968) 392 US 83 (20 Law Ed 947) ). This conflict in approach is not relevant to the issue in this case. (at p552)
14. The court would exceed its function if it accepted the invitation issued by the appellant's counsel to jettison the settled principle of law relating to locus standi and substitute for it a new rule recognizing a mere belief as an adequate special interest on the part of the plaintiff. There are limits to what the courts can and should do by way of altering the law. The court is not a legislature and has no general charter to reform or change the existing law. The court can and does elaborate the common law by judicial decision. This is an evolutionary and continuing process. It is a process which allows little scope for radical reform of a rule of law which, except in some aspects which are not of present importance, has long been settled, when it has not been demonstrated that the foundation on which the rule is based has fundamentally changed. (at p552)
15. This is particularly so when we find that the settled rule which we are invited to cast aside is one which (a) is accepted not only in Australia, but in other common law jurisdictions; (b) governs the locus standi of a citizen to challenge the validity of decisions made and actions taken by the executive government and (c) is the subject of a reference by the executive government to the Australian Law Reform Commission for investigation and report. What is more, this reference follows the enactment of the Act and the introduction of the Administrative Procedures under that Act. As I have construed them, neither the Act nor the Administrative Procedures contain any indication of a departure from the settled rule of law governing locus standi. It is evident that they assume the existence of the rule as it has been settled. (at p552)
16. There is no rule that the plaintiff's standing should be determined at the trial and not before. Where there is an arguable case for standing, it may be preferable to have it determined along with other issues at the trial (Nova Scotia Board of Censors v. McNeil (1975) 55 DLR (3d) 632, at pp 633-634 ). Whether it should be so decided will depend on other factors as well. Here, considerations of cost and convenience favoured an early determination of the issue. Aickin J. was clearly right to deal with it as a preliminary question. (at p552)
17. I would dismiss the appeal. (at p552)
MURPHY J. This appeal arises from an action by the appellant, the Australian Conservation Foundation Incorporated, against the respondents in which Aickin J. ordered that the statement of claim be struck out and the action dismissed because the Foundation had no standing to maintain it. The only question is whether the Foundation has standing. (at p553)
2. The Foundation had challenged the validity of a decision by some of the respondents made in July 1978 approving a proposal by Iwasaki Sangyo Company (Australia) Pty. Ltd. to establish and operate a resort and tourist area at Farnborough, Queensland, or, alternatively, approving exchange control transactions in relation to that proposal. The Foundation claims that the Reserve Bank (the authority alleged to have made the purported decision) failed to comply with provisions of the Environment Protection (Impact of Proposals) Act 1974 (Cth), as amended, and the Administrative Procedures approved under the Act, and seeks declarations that the decision approving the company's proposal is invalid. The Foundation also seeks an injunction restraining the respondents from acting on the decision or purporting to authorize anyone else to act upon or implement the decision, orders relating to Administrative Procedures under the Act, and a further injunction restraining the respondents from making any decision relating to the proposal without taking into account the contents of an environmental impact statement prepared in accordance with the Act. (at p553)
3. The Act (with its regulations) is concerned with the protection of the environment and to allow those concerned with the environment to comment on proposals which may affect it. (at p553)
4. Section 5 (1) states:
"The object of this Act is to ensure, to the greatest extent that is
practicable, that matters affecting the environment to a
significant extent
are fully
examined and taken into account in and in relation to -
(a) the formulation of proposals;arrangements (including agreements and arrangements with, and with authorities of, the States); (d) the making of, or the participation in the making of, decisions and recommendations; and
(b) the carrying out of works and other projects;
(c) the negotiation, operation and enforcement of agreements and
(e) the incurring of expenditure,The regulations provide a detailed code for receipt of submissions from interested persons and their consideration in arriving at a decision. (at p553)
by, or on behalf of, the Australian Government . . . "
5. The Foundation was well-established long before these proceedings
commenced. It is a well-known and reputable conservation organization
incorporated under the laws of the Australian Capital Territory. Its objects
include:
"(1) to make every effort to ensure that the air, land and waters of
Australia are used with wisdom and foresight and that competing
demands upon
them are resolved in the best long-term interests of the nation;
(2) to foster the conservation of the distinctive vegetation and fauna and
important natural and archaeological features of Australia;
. . . ;dissemination and interchange of information and bibliographical and other material relating to conservation;
(6) to act as a clearing house for the collection, evaluation,
. . . "The Foundation has about 6,500 members in each of the States and Territories of the Commonwealth of Australia and, to further its objects, has made submissions to governments and public authorities in respect of environmental matters, including comments made pursuant to the provisions of the Act and the Administrative Procedures under it. It has been paid annual grants by the Commonwealth which were authorized by the Minister of State for Environment, Housing and Community Development to be paid to it for its purposes which include its comments as an interested person or body in respect of draft environmental impact statements made pursuant to the provisions of the Act and Administrative Procedures. (at p554)
6. The Foundation claimed that some of its members would be affected in their activities or pastimes by the projected development. The area of Farnborough, the subject matter of the proposal, comprises private and public lands over which members of the public, including some members of the Foundation, have access and rights of access and use which would be detrimentally affected by the implementation of the proposal. The Foundation made detailed submissions in accordance with the regulations but claims that these were not dealt with according to the Act and regulations and proposals have been implemented in breach of the Act and regulations. (at p554)
7. Standing may be founded in many ways. The concept is closely tied to
justiciability and to notions of judicial power. In Flast
v. Cohen (1968) 392
US, at pp 98-100 (20 Law Ed 2d 947, at p 961) , Warren C.J., delivering the
opinion of the Supreme Court said:
"Standing is an aspect of justiciability and, as such, the problem of
standing is surrounded by the same complexities and vagaries
that inhere in
justiciability. Standing has been called one of 'the most amorphous (concepts)
in the entire domain of public law'.
(Hearing on S. 2097, supra, n. 6, at 498
(statement of Prof. Paul A. Freund).) Some of the complexities peculiar to
standing problems
result because standing 'serves, on occasion, as a shorthand
expression for all the various elements of justiciability'. (Lewis,
Constitutional Rights and the Misuse of 'Standing', 14 Stan. L. Rev. 433, 453
(1962).) In addition, there are at work in the standing
doctrine the many
subtle pressures which tend to cause policy considerations to blend into
constitutional limitations.
. . . The 'gist of the question of standing' is whether the party seeking
relief has 'alleged such a personal stake in the outcome
of the controversy as
to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely
depends for illumination of difficult
constitutional questions'. Baker v. Carr (1962) 369 US, at p 204 (7 Law Ed, at
p 678) . In
other words, when standing is placed in issue in a case, the
question is whether the person whose standing is challenged is a proper
party
to request an adjudication of a particular issue and not whether the issue
itself is justiciable." (. . . See Bickel, Foreword:
The Passive Virtues, The
Supreme Court, 1960 Term, 75 Harv. L. Rev. 40, 75-76 (1961).) (at p555)
8. A special relationship between parties on either side of the record is not always required for standing, for example, a stranger may institute many kinds of criminal proceedings, or apply for prohibition (see Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia [1957] HCA 96; (1957) 100 CLR 312 ; Reg. v. Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77 ; R. v. Licensing Court; Ex rel. Marshall (1924) SASR 421 ; Greater Wollongong City Council v. Dunn (1973) 1 NSWLR 36 ) or an injunction (see s. 80 of the Trade Practices Act 1974 (Cth), as amended). Even where it is necessary to show that a particular interest of the plaintiff is involved, the interest need not be peculiar to the plaintiff. The tendency has also been to recognize a wider range of interests than property interests - for example, political and environmental interests (see Sierra Club v. Morton (1972) 405 US, at pp 735-740 (31 Law Ed 2d, at pp 643-646) ; S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [1964] VicRp 32; (1964) VR 229 ; Tonkin v. Brand (1962) WAR 2 ; Mutton v. Ku-ring-gai Municipal Council (1973) 1 NSWLR 233 ; Benjamin v. Downs (1976) 2 NSWLR 199 ). (at p556)
9. In the United States, the fact that access and use by members of the body whose standing is challenged would be detrimentally affected by implementation of the proposals has been held to be a sufficient basis for standing (see United States v. Students Challenging Regulatory Agency Procedures [1973] USSC 148; (1973) 412 US 669 (37 Law Ed 2d 254) ; Sierra Club v. Morton). The idea that corporations can represent interests of members is familiar in Australia (for example, organizations of employers and employees under the Conciliation and Arbitration Act 1904 (Cth), as amended, Reg. v. Graziers' Association of New South Wales; Ex parte Australian Workers' Union [1956] HCA 31; (1956) 96 CLR 317 ; but see Roughley v. New South Wales (1928) 42 CLR 162 ; Victorian Chamber of Manufactures v. The Commonwealth [1943] HCA 19; (1943) 67 CLR 335 . In my opinion, the Act, particularly in s. 5 (1), discloses a legislative intent to give standing to persons and groups interested in the environment who allege that factors affecting it are not being properly considered by those with authority to make decisions affecting the environment (see Citizens Committee for Hudson Valley v. Volpe [1969] USCA2 801; (1970) 425 F 2d 97 ). (at p556)
10. A person who has a statutory or common law right to be heard before a
decision is made has standing to bring proceedings to
require the observance
of the relevant provisions (see Vanderwolf v. Warringah Shire Council (1975) 2
NSWLR 272, at pp 274-275 ;
National Trust of Australia (Vict.) v. Australian
T. & G. Mutual Life Assurance Society Ltd. [1976] VicRp 60; (1976) VR 592 ). To allow standing
to
such persons furthers the object of the Act stated in s. 5 (see National
Trust of Australia
(Vict.) v. Australian T. & G.
Mutual
Life Assurance Society
Ltd.; Benjamin v. Downs; see also Reg. v. Bowman (1898) 1 QB 663
; Reg. v.
Cotham (1898) 1 QB 802 ,
referred
to in Sinclair v. Maryborough Mining Warden
[1975] HCA 17; (1975) 132 CLR 473 ). In Reg. v. Bowman (1898) 1 QB, at p 666
, Wills J.
said:
"It is clear that any member of the public has a right to be heard in
opposition to an application for a licence, and, having
such a right, he is
entitled to be heard according to legal principles. If the justices allow
themselves to take into consideration
matters which have no bearing upon the
merits of the case before them, and which influence their minds in arriving at
their decision,
it cannot be said that the objector has been heard according
to law."
In Sinclair v. Maryborough Mining Warden (1975) 132 CLR, at p 478 , Barwick
C.J. said:
"The appellant, having been an objector before the warden, had a right to
have the hearing of the application conducted, and
the warden consider the
application and the objections and make his recommendation, according to law.
If the application has not
been so heard and determined, he is a proper party
to seek a mandamus to compel the hearing to be had according to law: Reg. v.
Bowman
(1898) 1 QB, at p 666 and Reg. v. Cotham (1898) 1 QB 802 ."
Here the appellant contends that the provisions of the legislation which
condition the authority of the respondents have been disregarded.
If a member
of the public has the right to be heard (or to make a submission or to comment
in opposition to, or in support of, an
administrative decision or proposal),
he is entitled to be heard or have his submission or comment dealt with
according to legal
principles, that is, according to the procedure laid down
by law. It is not sensible to deny standing to members of the public to
enforce rules under the Act by which Parliament has provided they shall be
consulted. (at p557)
11. Even if it is necessary to show that the plaintiff is "more particularly affected than other people" (see Mason J. in Robinson v. Western Australian Museum (1977) 138 CLR 283, at p 327 , here the plaintiff is more particularly affected as it has gone to the trouble of submitting comments. It is entitled to have these dealt with legally, not passed over or dealt with irregularly. (at p557)
12. The respondents raised the "floodgates argument" that the courts will be
overwhelmed with litigants if bodies such as the appellant
are allowed
standing. The references which the appellant submitted show that this has not
happened in the United States:
1. "People are not keen to rush to the Courts. It is in their interest to
avoid the inconvenience and expense of litigation rather
than to commence
proceedings on trivial matters." (Zamir, The Declaratory Judgment (1962).)
2. "The apprehension that a congestion of the judicial and administrative
processes would result if judicial review were widely
available seems to be
exaggerated." (Thio, Locus Standi and Judicial Review (1971); see also
Schwartz, French Administrative Law
and the Common Law World, (1954), at pp.
189-190.)
3. While the floodgates argument may in theory apply, in practice "there
are no such horrendous possibilities". (Associated Industries
v. Ickes (1943)
134 F 2d 694, at p 707 .) 4. ". . . the figment about floods of litigation if
taxpayer suits are allowed is demonstrably
false . . . Opening the judicial
doors to taxpayers suits does not cause floods: it hardly causes trickles."
(Davis, "Standing Taxpayers
& Ors", University of Chicago Law Review, vol. 35
(1968), 601, at p. 634.)
5. "A steady progression of cases through the Courts has demonstrated the
real contribution of citizen suits to the growth of
environment protection,
without as some feared, alienating industry or clogging the judicial process."
(Haynes, "Michigan's Environment
Protection Act in its 6th year: Substantive
Environment Law from Citizens Suits", Environment Law Review, vol. 6, (1976)
50-092.)
6. "In contrast to the normal three and a half year wait for trials in
most Michigan civil cases, M.E.P.A. cases are quickly
brought to trial within
six months of filing." (Haynes, "Michigan's Environment Protection Act in its
6th year: Substantive Environment
Law from Citizens Suits", Environment Law
Review, vol. 6, (1976) 50-092.) (at p558)
13. The Foundation has standing to claim the orders sought. The appeal should be allowed. (at p558)
ORDER
Appeal dismissed with costs.