Australian Conservation Foundation Inc v Commonwealth

High Court of Australia|1980-07-01|Before: Aickin J, Murphy JJ

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.

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.

The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction. In Boyce v. Paddington Borough Council [16] , 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 [17] . However in Attorney-General; Ex rel. McWhirter v. Independent Broadcasting Authority [18] , 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 [19] 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. 1. [1903] 1 Ch. 109, at p. 114. 2. [1942] A.C. 332; esp. at pp. 344-345. 3. [1973] Q.B. 629, at p. 649. 4. [1978] A.C. 435.

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 [20] , and by Lord Wilberforce and Lord Edmund-Davies in Gouriet v. Union of Post Office Workers [21] . In this Court, the law was stated in a way that supports that view in Anderson v. The Commonwealth [22] . 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 [23] :

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 [24] . Although, in some cases (such as Thompson v. Randwick Municipal Council [24a] ) 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. 1. [1942] A.C., at p. 345. 2. [1978] A.C., at pp. 482, 514. 3. (1932) 47 C.L.R. 50. 4. (1932) 47 C.L.R., at pp. 51-52. 5. (1977) 138 C.L.R. 283, at pp. 292-293, 301-303, 327-328. 6. (1953) 90 C.L.R. 449.

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 [25] , 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".

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.

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] [26] , 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" [27] . Laskin J., however, declined to apply this principle to cases where the validity of legislation was challenged, and said [28] : "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 [29] , 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 [30] with Stein v. City of Winnipeg [31] , and Attorney-General (Nova Scotia) v. Bedford Service Commission [60] . 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 [61] . Laskin J., in Thorson v. Attorney-General (Canada) [No. 2] [62] , 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.

(1974) 43 D.L.R. (3d) 1. 2. (1974) 43 D.L.R. (3d), at p. 10. 3. (1974) 43 D.L.R. (3d), at p. 18. 4. (1975) 55 D.L.R. (3d) 632. 5. (1976) 69 D.L.R. (3d) 384. 6. (1974) 48 D.L.R. (3d) 223. 7. (1976) 72 D.L.R. (3d) 639. 8. (1977) 80 D.L.R. (3d) 767. 9. (1974) 43 D.L.R. (3d) 1.

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 [63] , and adopted by Murphy J. in Robinson v. Western Australian Museum [64] , 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 [65] approved in Simon v. Eastern Kentucky Welfare Rights Organization [66] , "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".

(1962) 369 U.S. 186, at p. 204 [7 Law. Ed. 2d 663, at p. 678]. 2. (1977) 138 C.L.R., at p. 344. 3. (1975) 422 U.S. 490, at pp. 498-499 [45 Law. Ed. 2d 343, at p. 354]. 4. (1976) 426 U.S. 26, at p. 38 [48 Law. Ed. 2d 450, at p. 460].

In New Zealand, the statement of principle in Boyce v. Paddington Borough Council [67] and London Passenger Transport Board v. Moscrop [68] has been followed: see Collins v. Lower Hutt City Corporation [69] ; New Zealand Institute of Agricultural Science v. Paparua County [70] .

[1903] 1 Ch. 109. 2. [1942] A.C. 332. 3. [1961] N.Z.L.R. 250, at p. 254. 4. [1969] N.Z.L.R. 653, at p. 660.

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.

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") [71] ; Real Estate Institute of N.S.W. v. Blair [72] ; British Medical Association v. The Commonwealth [73] .

(1943) 67 C.L.R. 335, at p. 343. 2. (1946) 73 C.L.R. 213, at pp. 224, 226, 228. 3. (1949) 79 C.L.R. 201, at p. 257.

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 [74] . 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 [75] :

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. [76] , 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" [77] . 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. 1. (1975) 132 C.L.R. 473. 2. (1975) 132 C.L.R., at p. 478. 3. [1976] V.R. 592. 4. [1976] V.R., at p. 605.

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 [78] , 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.

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.

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.

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.

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.

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.

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".

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.

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.

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.

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.

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.

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.

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 [79] and recently applied in Gouriet v. Union of Post Office Workers [80] . 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.

[1903] 1 Ch. 109, at p. 114. 2. [1978] A.C. 435.

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.

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.

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.

In Boyce v. Paddington Borough Council Buckley J. said [81] :

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 [82] , and in his earlier decision in W. H. Chaplin & Co. Ltd. v. Westminster Corporation [83] . 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. 1. [1903] 1 Ch., at p. 114. 2. [1903] 1 Ch., at pp. 113-114. 3. [1901] 2 Ch. 329.

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 [84] 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 [85] , 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 [86] , as does Viscount Dilhorne [87] , Lord Edmund-Davies [88] , and Lord Fraser of Tullybelton [89] .

[1942] A.C. 332, at p. 345. 2. [1978] A.C., at p. 477. 3. [1978] A.C., at p. 483. 4. [1978] A.C., at p. 494. 5. [1978] A.C., at pp. 506, 513. 6. [1978] A.C., at p. 518.

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.

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.

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 [90] , and United States v. Students Challenging Regulatory Agency Procedures [91] , 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 [92] . 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 [93] . 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" [94] .

(1972) 405 U.S. 727 [31 Law. Ed. 2d 636]. 2. (1973) 412 U.S. 669 [37 Law. Ed. 2d 254]. 3. (1972) 405 U.S., at p. 733 [31 Law. Ed. 2d, at p. 642]. 4. (1973) 412 U.S., at pp. 686-687 [37 Law. Ed. 2d, at p. 269]. 5. (1973) 412 U.S., at p. 687 [37 Law. Ed. 2d, at p. 269].

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 [95] . 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.

(1962) 369 U.S. 186, at p. 204 [7 Law. Ed. 2d 663, at p. 678].

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.

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.

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. [96] and again in Phelps v. Western Mining Corporation Ltd. [97] . 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.

(1978) 140 C.L.R. 216. 2. (1978) 33 F.L.R. 327; 20 A.L.R. 183.

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.

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.

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.

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.

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.

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. [98] 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 [99] , 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 [1] , 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 [2] where Bowen C.J. in Eq. said, "the plaintiffs would be directly affected by the proposed development and do have locus standi".

[1964] V.R. 229. 2. [1964] V.R., at p. 245. 3. [1969] V.R. 603, at p. 613. 4. [1975] 2 N.S.W.L.R. 272, at p. 275.

Other cases, such as National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [3] , 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.

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 [4] , 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.

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.

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.

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 otherf 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 [5] ) 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 [6] : "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."

[1970] 1 N.S.W.R. 725. 2. (1977) 138 C.L.R, at pp. 327-328.

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".

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.

In Sierra Club v. Morton [7] , 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 [8] :

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.

(1972) 405 U.S. 727 [31 Law. Ed. 2d 636]. 2. (1972) 405 U.S., at pp. 739-740 [31 Law. Ed. 2d, at pp. 645-646].

In Simon v. Eastern Kentucky Welfare Rights Organization [9] , Powell J., in delivering the opinion of the Court, after observing [10] ,

But, as this Court emphasized in Sierra Club v. Morton [11] , "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 [12] , (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 [13] : 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 [14] . 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 [15] . 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. 1. (1976) 426 U.S. 26 [48 Law. Ed. 2d 450]. 2. (1976) 426 U.S., at p. 39 [48 Law. Ed. 2d, at p. 461]. 3. (1972) 405 U.S., at p. 738 [31 Law. Ed. 2d, at p. 645]. 4. (1974) 418 U.S. 166, at p. 194 [41 Law. Ed. 2d 678, at p. 698]. 5. (1976) 426 U.S., at p. 40 [48 Law. Ed. 2d, at p. 461]. 6. (1975) 422 U.S. 490 [45 Law. Ed. 2d 343]. 7. (1975) 422 U.S., at p. 511 [45 Law Ed. 2d, at p. 362].

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.

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.

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 [16] ) and that he should "stand to profit in some personal interest" (the Simon Case [17] ).

(1962) 369 U.S., at p. 204 [7 Law. Ed. 2d, at p. 678]. 2. (1976) 426 U.S., at p. 39 [48 Law. Ed. 2d, at p. 461].

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 [18] ; Felton v. Mulligan [19] ). 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 [20] ), 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.

(1921) 29 C.L.R. 257, at pp. 265-266. 2. (1971) 124 C.L.R. 367, at pp. 382, 388, 408-409, 419. 3. (1909) 8 C.L.R. 330, at p. 357.

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. [21] ; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [22] ; Ex parte Soul Pattinson (Laboratories) Pty. Ltd. [22] ; Parish v. World Series Cricket Pty. Ltd. [24] ; Phelps v. Western Mining Corporation Ltd. [25] .

(1978) 140 C.L.R. 216. 2. (1978) 142 C.L.R. 113. 3. (1978) 142 C.L.R. 113. 4. (1977) 16 A.L.R. 172. 5. (1978) 33 F.L.R. 327; 20 A.L.R. 183.

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) [26] ). 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 [27] : cf. Flast v. Cohen [28] ). This conflict in approach is not relevant to the issue in this case.

(1974) 43 D.L.R. (3d) 1, at p. 18. 2. (1965) 112 C.L.R. 177, at p. 187. 3. (1968) 392 U.S. 83 [20 Law. Ed. 947].

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.

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.

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 [1] ). 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.

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.

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.

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.

(c) the negotiation, operation and enforcement of agreements and 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

by, or on behalf of, the Australian Government The regulations provide a detailed code for receipt of submissions from interested persons and their consideration in arriving at a decision.

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;

(6) to act as a clearing house for the collection, evaluation, dissemination and interchange of information and bibliographical and other material relating to conservation;

(7) to co-operate with, or promote co-operation by any means among persons, trusts, corporations, firms, associations, governments, instrumentalities of government, municipal authorities, and other bodies in Australia or elsewhere concerned with or interested in conservation;

(8) generally, to take such action as it considers necessary or appropriate in the interests of promoting conservation

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.

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.

Standing may be founded in many ways. The concept is closely tied to justiciability and to notions of judicial power. In Flast v. Cohen [2] , 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". (Hearings 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 [3] . 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).)

(1962) 369 U.S., at p. 204 [7 Law. Ed., at p. 678].
1. (1968) 392 U.S., at pp. 98-100 [20 Law. Ed. 2d 947, at p. 961].
2. (1962) 369 U.S., at p. 204 [7 Law. Ed., at p. 678].

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 [4] ; Reg. v. Watson; Ex parte Australian Workers' Union [5] ; R. v. Licensing Court; Ex rel. Marshall [6] ; Greater Wollongong City Council v. Dunn [7] ) 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 [8] ; S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [9] ; Tonkin v. Brand [10] ; Mutton v. Ku-ring-gai Municipal Council [11] ; Benjamin v. Downs [12] ).

(1957) 100 C.L.R. 312. 2. (1972) 128 C.L.R. 77. 3. [1924] S.A.S.R. 421. 4. [1973] 1 N.S.W.L.R. 36. 5. (1972) 405 U.S., at pp. 735-740 [31 Law. Ed. 2d, at pp. 643-646]. 6. [1964] V.R. 229. 7. [1962] W.A.R. 2. 8. [1973] 1 N.S.W.L.R. 233. 9. [1976] 2 N.S.W.L.R. 199.

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 [13] ; 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 [14] ; but see Roughley v. New South Wales [15] ; Victorian Chamber of Manufactures v. The Commonwealth [16] . 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 [17] ).

(1973) 412 U.S. 669 [37 Law. Ed. 2d 254]. 2. (1956) 96 C.L.R. 317. 3. (1928) 42 C.L.R. 162. 4. (1943) 67 C.L.R. 335. 5. (1970) 425 F. 2d 97.

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 [18] ; National Trust of Australia (Vict.) v. Australian T. & G. Mutual Life Assurance Society Ltd. [19] ). 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 [20] ; Reg. v. Cotham [21] , referred to in Sinclair v. Maryborough Mining Warden [22] ). In Reg. v. Bowman [23] , 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 [24] , 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 [25] and Reg. v. Cotham [26] 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. 1. [1975] 2 N.S.W.L.R. 272, at pp. 274-275. 2. [1976] V.R. 592. 3. [1898] 1 Q.B. 663. 4. [1898] 1 Q.B. 802. 5. (1975) 132 C.L.R. 473. 6. [1898] 1 Q.B., at p. 666. 7. (1975) 132 C.L.R., at p. 478. 8. [1898] 1 Q.B., at p. 666. 9. [1898] 1 Q.B. 802.

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 [27] , 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.

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:

"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).)

"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.)

While the floodgates argument may in theory apply, in practice "there are no such horrendous possibilities". (Associated Industries v. Ickes [28] .)

" 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.)

"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.)

"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.)

The Foundation has standing to claim the orders sought. The appeal should be allowed.

High Court of Australia Aickin J. Gibbs, Stephen, Mason and Murphy JJ. Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53

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