Australian Conservation Foundation v Commonwealth

Federal Court of Australia|1994-06-30|Before: Sackville J

The applicant in these proceedings is North Coast Environment Council Incorporated. I shall refer to it as "North Coast". North Coast seeks a declaration against the Respondent

"([Tjhat the Applicant was entitled, in respect of the decision...of the Respondent to grant an export licence pursuant to the Export Control Act to Sawmillers Exports Pty Limited so as to allow that company to export wood chips for a period of three months from 30 June 1994, by notice in writing dated 11 July 1994, to the Respondent to request...the Respondent to furnish a_ statement...in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision."

-2- Minister provide a statement of reasons in answer to North

Coast's request, as required by s.13(1) and (2) of the

Administrative Decisions (Judicial Review) Act 1977 (the

The relevant provisions of s.13 of the ADJR Act are as

"13.(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

(3) Where a person to whom a request is made under sub-section (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request -

(a) give to the second-mentioned person notice in writing of his opinion; or

(4) Where a person gives a notice under sub-section (3), or applies to the Court under sub-section (4A), with respect to a request, the person is not required to comply with the request unless -

(a) the Court, on an application under sub-section (4A), declares that the person who made the request was entitled to make the request; or

-3- and, in either of those cases, the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who made the request within 28 days after the decision of the Court. (4A) The Court may, on the application of- (a)...

(b) the person who has received a notice under sub- section (3);

make an order declaring that the person who made the

request concerned was, or was not, entitled to make the request."

The reference in s.13(1) to "any person who is entitled to make an application to the Court under section 5 in relation to the decision" is to the introductory words of s.5(1) of the ADJR Act. These provide that

"[a] person who is aggrieved by a decision to which

order of review in respect of the decision" on eight enumerated grounds. Section 3(4) provides that in the ADJR Act "(a) a reference to a person aggrieved by a decision includes a reference -

(i) to a person whose interests are adversely affected by the decision..."

The only substantial issue debated in this appeal was whether North Coast answered the description of a "person aggrieved" by the Minister's decision. North Coast argued that it had a sufficient interest to make it a "person aggrieved" or, to put it slightly differently, to give it standing to pursue its

claim for relief. Mr Heydon QC, who appeared with Mr Comans

4- on behalf of the Minister, submitted, principally in reliance

on the authority of Australian Conservation Foundation inc v

Commonwealth (1980) 146 CLR 493, that North Coast was not "a

person who is aggrieved by a decision" of the Minister and

thus was unable to claim relief under s.13 of the ADJR Act.

As appears from the form of declarations sought by the Minister, the Minister's decision was to grant a licence to allow Sawmillers Exports Pty Ltd ("Sawmillers") to export woodchips for a period of three months from 30 June 1994. The case was argued after the licence had expired. At an earlier stage of the proceedings the Minister filed a notice of motion seeking an order that the proceedings be dismissed on the ground of lack of utility. On 7 October 1994 I delivered

reasons for refusing to dismiss the proceedings at that stage.

On 14 November 1990, the Minister for Resources designated Sawmillers as the proponent for proposed action relating to the production of woodchips intended for export. The Minister took the action under the Administrative Procedures, issued under the Environment Properties (Impact of Proposals) Act 1974 ("the Environment Protection Act"). Sawmillers was designated as the proponent in relation to a proposal to extend its woodchip operations to include material from private property and silvicultural reserves from Crown

forests. The Minister's designation did not include the

5 - export of woodchips produced from sawmill and logging residues because these activities were assessed not to have a

significant impact on the environment (compare s.5 of the

I infer that Sawmillers held a licence to export woodchips prior to 1992. That licence was issued pursuant to reg.8 of

the Export ontrol nprocessed Wood Regulations, made pursuant to the Export Control Act 1982. The Minister for Resources renewed Sawmillers' licence for 1992, while the environmental assessment was conducted. In a letter of i0 April 1992 to North Coast, the Minister for Resources stated that he had taken this action because the export of woodchips from silvicultural residues had been the subject of lengthy consideration by State and Commonwealth authorities and no substantial reason had been shown why Sawmillers should be prevented from exporting woodchips from this source pending the environmental assessment, particularly having regard to the commercial, economic and employment implications of

In October 1993 Sawmillers completed a draft environmental impact statement ("EIS") in response to a direction from the Minister for the Environment under the Administrative Procedures. It appears that, while the draft EIS was being completed, Sawmillers received a renewal (or renewals) of its export licence until the end of 1993. The draft EIS focussed

upon the environmental effects of exporting woodchips produced

-6- from silvicultural residue operations in State forests and from foresting and clearing operations on private property over the period 1993 to 2003. Sawmillers itself, according to the draft EIS, was not to undertake woodchipping. Rather, it purchased woodchips from suppliers who chip sawmill residues and roundwood for sale to Sawmillers. The designated operations were to extend over a large part of the central and

On 15 November 1993, the then Minister for Resources granted

Sawmillers a further licence under reg.8 of the Export Control (Unprocessed Wood) Requlations to export up to 500,000 tonnes

of hardwood woodchips from the port of Newcastle during 1994. The licence provided (cl.3(c)) that the exporter could export woodchips derived from silvicultural residues from New South Wales State forests and materials sourced from private

property only until 30 June 1994. This was the then expected

On 20 June 1994 Sawmillers applied for a licence to export woodchips until completion of the EIS. For this purpose it surrendered the then current licence held by it. On 30 June 1994, the Minister for Resources (Mr Beddall) issued Sawmillers with a further licence under the Export Control (Unprocessed Wood) Regulations. This licence permitted the

export of up to 125,000 tonnes of woodchips from the port of

Newcastle during the period from 1 July 1994 to 30 September 1994.

-7J- One of the conditions of the licence provided that logging residues and silvicultural -residues should be processed only when supplies of sawmill residues available to Sawmillers were being utilised to the fullest extent possible. Logging and silvicultural residues were to be derived from routine Managerial operations in New South Wales Crown forests, specified by State Forests of New South Wales. (The expression "sawmill residues" was defined to mean waste material from sawn timber production; "logging residues" to mean the heads, limbs and butts of trees felled for sawlogs and trees felled for sawlogs but found to be faulty; and "silviculture residues" to mean material resulting from thinning of regrowth forest and plantations, tree clearing for

road making and salvage logging following natural disasters.)

On 11 July 1994 the solicitors for North Coast requested the Minister for Resources, pursuant to s.13 of the ADJR Act, to provide a statement in writing setting out findings and giving the reasons for the decision to vary Sawmillers' export licence so as to allow the export of woodchips for a further three month period from 30 June 1994. On 9 August 1994 the solicitors for North Coast advised the Minister that the period of 28 days provided for in s.13(2) for the provision of reasons had expired. The letter requested the reasons as a

On 15 August 1994 the Minister replied. He indicated that he

did not accept that North Coast was an aggrieved party for the

g - purposes of the ADJR Act and accordingly did not accept that North Coast was entitled to a statement of reasons under that Act. Nevertheless, the Minister provided certain limited information to North Coast. The letter pointed out that the former Minister had approved, in 1993, an application by Sawmillers to export up to 500,000 tonnes of hardwood woodchips during 1994. The letter stated that that licence was consistent with an earlier decision that the export of woodchips produced from sawmill and logging residues from material harvested in northern New South Wales did not have a significant environmental impact. The letter went on to say that Sawmillers had been asked to prepare an EIS on the designated operations and that the previous licence covered only the period until 30 June 1994, the then expected date for finalisation of the EIS; that following delays in the EIS process, the Minister had decided to issue Sawmillers with an export licence in June 1994 to enable the company to continue export of woodchips from designed sources until 30 September 1994; and that this period was required for the EIS to receive

On 13 September 1994 North Coast commenced the principal

As I have previously noted, the licence granted to Sawmillers, in respect of which North Coast sought relief in these proceedings, expired on 30 September 1994. Thus the licence

is no longer in force. On 30 September 1994 the Minister

9 - granted Sawmillers a further licence to export hardwood

woodchips pursuant to the Export Control (Unprocessed Wood) Regulations. The licence was for the export of up to 500,000 tonnes of woodchips and was for the period commencing on 1 October 1994 and ending on 31 December 1995. On 1 November 1994 the solicitors for the applicant sought reasons from the Minister, pursuant to s.13 of the ADJR Act, for the issue of this licence. The entitlement of the applicant to make this request is not directly in issue in the present proceedings. However, the decision in the present case will presumably have

some bearing on the fate of that further request for reasons.

North Coast, which was originally called the North Coast Conservation Council, was formed in 1977 following a meeting of nine unincorporated societies from the North Coast and New England areas. The major issues prompting the formation of North Coast included sandmining, forestry issues and proposals for the export of woodchips from the Coffs Harbour area.

North Coast's current name was adopted in 1981, and it was

incorporated under the Associations Incorporation Act 1984 (NSW) in April 1989.

North Coast is a non-profit body and its property and income must be applied to its objects. North Coast's rules provide that its prime aim and object is to promote the cause of conservation throughout the "defined area" or elsewhere as may

be determined from time to time. The "defined area" covers a

region from Newcastle in the south to the Queensland border in

the north, and from a line west of the New England highway in

that the defined area included the areas from which Sawmillers

was to obtain woodchips to be exported pursuant to the licence

At 30 June 1994 North Coast had forty eight members.

"(1) To work for the better conservation of the physical environment of the defined area, its landscape, its flora and fauna, its waters and foreshores and coasts, to work for the

maintenance and improvement of its human amenities, and the wise use of its natural

resources, and to engage in any and all conservation, environmental, ecological or planning activities and in such ways as_ the

(2) To represent generally the views of such bodies aS may be engaged in any aspect of the conservation of the defined area; to foster optimum liaison between such bodies in the inter-change of information and views; and in particular to support as requested, the conservation activities of its member organisations.

representations and submissions to any person, Organisation, public authority or instrumentality on such conservation matters as apply generally to the defined area or to other areas excepting that in any matter of prime concern to a member body and specifically affecting only the local area covered by that member body the agreement of that member body

must be gained before such Council actions are taken."

-11- as the Coffs Harbour Environment Centre, the Clarence Valley

Conservation Coalition and the Nambucca Valley Conservation Society. North Coast is governed by a committee of ten councillors elected by delegates of the member groups. The member organisations must agree to the objectives of the Council. In this sense, and having regard to North Coast's role as spokesperson on conservation matters, it is aptly described as the peak environmental organisation for Northern New South Wales. Its own literature describes North Coast as "the regional umbrella organisation for community conservation and environmental groups on the North Coast of N.S.W." North Coast is itself a member group of the Nature Conservation Council ("NCC"), which is the peak conservation body for New South Wales. From time to time an officer of North Coast has been an office bearer of the NCC. The NCC, which was established in 1955, describes itself as the umbrella organisation for about eighty environmental and scientific societies promoting the cause of conservation

North Coast does not employ paid staff. Decisions are implemented by the secretary, committee members and delegates. North Coast has received grants from the Commonwealth's program for voluntary conservation organisations. The recent grants have been modest in comparison with grants to national or State "peak" environment organisations. The assistance

received by North Coast for the past three financial years

12 - from the Department of Environment, Sport and Territories

The comparable figures for the Australian Conservation

1991/52 1992/93 2993/94 $179,655 $193,248 $197,463 NCC

In 1993 North Coast was registered as a charity under the Charitable Collections Act 1934. As from June 1994 it is one of some 53 organisations listed in the Register of Environmental Organisations maintained by the Department of Environment, Sport and Territories for the purposes of s.78(1)(a)(cix) of the Income Tax Assessment Act 1936. Thus donations to the Council are deductible from assessable income for income tax purposes. There was, however, no evidence of the extent of donations made to the North Coast before or after it was listed in the Register. North Coast's accounts

North Coast has nominees on a number of committees, as a representative of the environment and conservation movement in northern New South Wales. Its role includes membership of the Northern Rivers Regional Planning Advisory Committee, an advisory committee to the State Minister for Planning convened under s.22 of the Environmental Planning and Assessment Act 1979 (NSW), and of the Forestry Policy Advisory Committee, convened by the Director-General of the New South Wales Department of Conservation and Land Management ("CALM"). The role of the Forestry Policy Advisory Committee is to advise the Minister for Land and Water Conservation on all matters relating to forestry policy in New South Wales. The terms of reference require the Committee to advise the Minister, inter alia, on the allocation of land to State forests; the management of State forests; Crown timber lands and private forests; measures taken to support ecologically sustainable forest operations; and the outcome of forestry industry

North Coast has also appointed representatives to a management committee jointly established by three State Ministers to provide advice on contaminated cattle dips. Meetings take place from time to time between representatives of North Coast and the Chief Executive Officer of State agencies, such as CALM, the Forestry Commissioner of New South Wales, the National Parks and Wildlife Service and the Environment

Protection Authority. At least one meeting has also occurred

with the State Minister for Land and Water Conservation.

North Coast representatives participate in workshops and conferences including, for example, a workshop on "Soil Erosion Mitigation Guidelines for Logging" convened by CALM in June 1993. Less frequently, North Coast organises its own conferences, one of which was held in July 1990 on the topic of "Politics and the Conservation Movement". None, however, appears specifically to have been on forestry issues. In December 1993 the Department of Environment, Sport and Territories approved a special purpose grant of $8,000 to North Coast to assist with travel and administrative costs of holding the 1994 National Conference of Conservation Councils and Environment Centres. This conference is held annually and hosted each year by a different conservation council. The conference hosted by North Coast was held in March 1994 at Coffs Harbour and attracted about 40 delegates from five

North Coast has made submissions to a variety of governmental bodies on environmental matters, including forestry issues. In April 1990 it presented a 25 page submission to the Resource Assessment Commission, in connection with the Commission's Inquiry into Forest and Timber Resources. The submission addressed "forest values...in the context of activities in North East NSW native forests". The document discussed forest management issues relating to national parks,

State forests and private lands and, among other topics, dealt

15 - with proposals for woodchipping and its effect on old growth and regrowth trees. Representatives of North Coast gave

evidence before the Resource Assessment Commission in October

In January 1990, North Coast made a submission to the Department of State Development arguing against the establishment of pulp and paper mills in New South Wales as recommended by a task force. Submissions have also been made by North Coast to State agencies in connection with draft environmental impact statements prepared for State purposes. The submissions related to forests in the Glen Innes, Dorigo,

In 1992 North Coast provided $1,000 to co-fund a pilot study to devise a methodology for identifying and assessing the value of old growth forests. The site chosen was the Wild Cattle Creek State Forest in the Dorrigo Management Area. The report, which is a detailed document of 83 pages, was publicly

In 1989 the then Department of the Arts, Sports, the Environment, Tourism and Territories agreed to pay North Coast $14,000 to conduct a project on community based approaches to land/resource use management. In January 1990 the same Department paid $41,975 to North Coast to undertake a regional chemical use data base project. The project was undertaken by

a research group known as Bio-Region Computer Mapping,

~ 16 - although the precise relationship between North Coast and that group is not entirely clear on the evidence. In January 1994 the Minister for Environment approved a grant of $5,000 to enable the Council to develop and implement an information program on the National Estate for aboriginal land councils

The evidence showed that North Coast has engaged in correspondence with State and Commonwealth authorities concerning woodchipping in northern New South Wales. Much of this correspondence was exchanged with the Commonwealth Minister for Resources in relation to the woodchip export

In February 1992, North Coast sought reasons from the then Minister, pursuant to the ADJR Act, for the decision to issue a woodchip export licence to Sawmillers in December 1991. In the letter, North Coast described itself as a "public interest, community based environment group". The letter stated that North Coast and its 40 local and district based member bodies were committed to protecting the region's environmental heritage and North Coast itself "has a long standing interest in forestry issues within this region, including woodchipping". Without conceding its entitlement to make the request, the Minister provided reasons in the letter dated 10 April 1992, to which I have already referred. Later

in 1992 North Coast sought reasons for what was described in

17 - evidence as the Minister for the Environment's decision not to designate Sawmillers as the proponent of proposals for woodchip exports pursuant to the Administrative Procedures issued pursuant to s.6 of the Environment Protection Act. The Minister replied to the request, explaining that the Minister for Resources had decided that the export of woodchips sourced from the sawmill or logging residues would not affect the

In December 1992 North Coast notified the Minister for Resources that it had resolved to oppose the renewal of export licences for woodchips on the ground that there had been no proper EISs. In 1993 and 1994 the Council continued to correspond with the Minister for the Environment urging (among other things) intervention to stop the export of woodchips by Sawmillers and the scrutiny of an interim assessment conservation order pursuant to s.79 of the Endangered Species Protection Act 1992. In May 1994 a letter on behalf of the Minister advised that obligations under that Act could be and

had been met by attaching conditions to the woodchip export

Earlier, in January 1994, North Coast, in conjunction with the North East Forest Alliance, prepared a submission on Sawmillers' draft EIS. The author of the submission was Mr D. Pugh, one of North Coast's nominees on the Forestry Policy Advisory Committee. The project appears to have been

supported from the Council's general funds. The thrust of the

18 - submission - which is a substantial document of 359 pages - is that the Sawmillers' draft EIS was superficial and inadequate and failed to provide a clear assessment of the activities or impact associated with woodchipping. (In this connection, I should make it clear that it is no part of my function to determine whether the criticisms in the submission are well- founded or not. The relevance of the material is that it evidences the interest of North Coast in, and its commitment to, the environmental issues raised by woodchipping activities

North Coast's Submissions It is convenient to commence with a summary of the applicant's submissions to support the contention that it is a "person

Mr Basten argued that since 1981 the common law rules as to standing have been approached in a flexible manner. The authorities recognise that applicants have standing to enforce a public right or duty if they have "a special interest in the subject matter of the action". In Mr Basten''s submission, QOnus_v Alcoa of Australia Ltd (1981) 149 CLR 27, supports the proposition that a non-material interest in the preservation of land can suffice to establish a special interest in the subject matter of action. What is required is an analysis of the importance of the applicant's concern with the particular subject matter and the closeness of the applicant's

relationship to that subject matter: Onus_v_ Alcoa, at 42.

19 - Mr Basten submitted that decisions of the Federal Court showed that organisations whose constitutions formulated particular objects, were doing more than voicing mere emotional or intellectual concerns when pursuing those objects (compare ACF v_The Commonwealth, at 530, 548, 552). In particular, the interest of the applicant was similar to that upheld by Davies

in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 (FCA/Davies J.). In that case, his Honour upheld the standing of the ACF to challenge the decision of the Minister to grant a licence to export woodchips, which were to be obtained from State Forests

forming part of the National Estate under 5.31 of the

Mr Basten also relied on the fact that the processes

contemplated by the Administrative Procedures had been

invoked. In particular, the draft EIS had been prepared by Sawmillers as the designated proponent of the "proposed action" under cl.1.2.1 of the Administrative Procedures. The final EIS had to be made publicly available and a _ copy provided to any body making written comments (cl.8.2). The Department of Environment could at any time review the environmental aspects of the proposed action and, if it did, the Minister for the Environment would be bound to inform the proponent and the Minister for Resources of the review (c1.10.2.1). Furthermore, since the proposed action of Sawmillers fell within s.5 of the Environment Protection Act

(as a "matter affecting the environment to a significant

20 - extent"), the rights of members of the public under s.10 of that Act were enlivened. Section 10 allows "any person" to require the Minister to inform him or her as to what action, if any, has been taken to ensure consideration of the

As I understood Mr Basten's argument, he submitted that the principles of open decision-making reflected in the Environment Protection Act supported the claim of the applicant to have a special interest in obtaining reasons for the decision to grant Sawmillers a licence. The nature of the relief sought by the applicant was limited to requiring a statement of reasons on a matter in respect of which legislation had provided for open decision-making. This provided a reason for taking a broader view to the interpretation of "person aggrieved" than might apply in

The Minister submitted that North Coast had no special interest within the principles stated by the High Court in ACF vy Commonwealth. North Coast had no more than a strongly held

Mr Heydon submitted that North Coast's actions in making representations to government and commenting on the draft EIS were insufficient to elevate its position beyond a mere

intellectual or emotional concern, which the High Court had

21 - held to be insufficient to establish standing. There was therefore no satisfactory basis for distinguishing ACF v

Mr Heydon submitted that ACF v_ Minister for Resources should not be followed. Even if the decision was correct, the present case was different. For example, the ACF was the major conservation organisation in Australia, while North Coast was only a regional organisation, and was one of 82 members of the NCC, the State peak environmental organisation. North Coast had very limited funding, no employees and very restricted support from government. For these and other reasons, North Coast did not meet the criteria specified by Davies J. as justifying according it standing to challenge a

decision to grant an export licence in respect of woodchips.

Mr Heydon also submitted that any reliance on _ the Administrative Procedures and the Environment Protection Act was misplaced. He pointed out that the present proceedings involved no challenge to acts or decisions under either the Administrative Procedures or the Act. Rather the relevant

decision was the grant of the export licence under the Export

Control _(Unprocessed Wood) Requilations. In any event ACF v

Commonwealth had decided that a challenge based on non- compliance with the Administrative Procedures could not rely on any recognition of standing contained either in the Environment Protection Act or the Administrative Procedures.

The only possible exception to this was s.10 of the

~ 22 - Environment Protection Act, which gave "any person" a statutory entitlement to information, but North Coast was not challenging any decision under s.10, nor asking for reasons for any decision relating to s.10. Furthermore, participation in the environmental assessment machinery provided for in the Administrative Procedures could not elevate North Coast's interest above that of the public at large. So much had been

There is much to be said for the view that the focus of attention where decisions of public authorities are challenged or reasons for those decisions are sought should not be any benefit that might accrue to the plaintiff or the applicant. On this view, the focus should be on those "who can represent the public interest [in litigation] most effectively and faithfully": M. Allars, "Standing: The Role and Evolution of the Test" (1991) 20 Federal Law Review 83, at 95. Indeed the law, at least for the purposes of the ADJR Act, appears to be in a state of transition, although it is fair to say that there has been a progressive widening of the law of standing and of the concept of "person aggrieved" over the last century: Coles Myer Ltd v O'Brien (1992) 28 ALD 555 (NSW CA), at 556-558, per Kirby P; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 (FCA/Gummow J.), at 130-132. The question in this case is, perhaps, how far the latest transitional process has

The starting point is ACF v Commonwealth. This was not a case arising under the ADJR Act, which did not come into force until 1 October 1980. The plaintiff sought declaratory and injunctive relief in the High Court in relation to an approval to an exchange control transaction granted under the Administrative Procedures. The transaction was to facilitate a proposal by a company to establish a resort and tourist area at Farnborough in Queensland. The statement of claim alleged that the decision was invalid because the Administrative

Procedures were not followed and, in particular, a final EIS

The statement of claim set out the objects of the ACF, the first two of which were 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 interest of the nation;

(ii) to foster the conservation of the distinctive vegetation and fauna and important natural and archaeological features of Australia".

It was alleged in the statement of claim that the ACF had 6,500 members; that it had made submissions to governments and public authorities in respect of environmental matters; and

that it had received annual grants from the Commonwealth for

24 - The defendants applied to strike out the statement of claim and to dismiss the proceedings on the ground that the plaintiff had no standing. The application succeeded before Aickin J. at first instance and the appeal to the Full Court was dismissed by a 3:1 majority (Gibbs, Stephen and Mason JJ;

On appeal the ACF took a broad approach, arguing that ideological interests such as beliefs or objectives shared by a group of people on moral, social or environmental questions was enough to give standing (at 513). Gibbs J. rejected this

",,ethe 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. w

25 - Gibbs J. then reformulated the second limb of the test of standing stated by Buckley J. in Boyce v_ Paddington Borough Council [1903} 1 Ch 109. That limb gave standing, where a public right was interfered with, only if the plaintiff suffered "special damage peculiar to himself". The restatement by Gibbs J. specified the requirement as having to show 'a special interest in the subject matter of the action"

"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."

Gibbs J. also held that the fact that the ACF had made written comments on the draft EIS was irrelevant to standing. In his view, the Administrative Procedures were not intended by the Environment Protection Act to create rights enforceable by private individuals (at 524-525, 531). In any event, even if the Governor-General had power, by approving the

Administrative Procedures, they did not have that effect.

26 - Stephen J. observed that the ACF's concern was not to protect or advance its own material interests. "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" (at 537). There were two bases on which the ACF could possibly establish "special damage peculiar to himself", within the test formulated in Boyce. The first was the concern it had for Australia's environment and the particular threat posed by the Farnborough development. This was not enough. Stephen J. concluded (at 539):

breach of which it takes exception. That is not the

be radically to alter the existing law as it now stands."

The second basis might be founded upon rights conferred by the Administrative Procedures. However, a commentator, once his or her comments had been received, had no further right under the Administrative Procedures over and above any available to other members of the community "The only role for members of the public who make comments on a draft EIS is that of providing information and expressing views, the decision- making function remaining wholly that of government" (at 545). Mason J. expressed agreement with Gibbs J. that, apart from

s.10 of the Environment Protection Act, neither that Act nor

the Administrative Procedures conferred any rights on an individual or corporation which had furnished comments. His Honour said this (at 547-548):

special interest in the subject matter of the action

over and above that enjoyed by the public generally,

injunction to prevent the violation of a public right or to enforce the performance of a public

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....

Nowhere in the common law world is authority to be found for the appellant's wide-ranging proposition."

Mr Basten submitted that ACF v_ Commonwealth must be understood as a response by the majority to the breadth of the arguments put by the appellant to the High Court. I think there is some force in that submission. Gibbs J., for example, while rejecting the appellant's broad argument, expressly acknowledged that a person could have a "special interest" in the preservation of a particular environment. Of course, viewing the decision in this light does not mean that it is devoid of binding effect. Clearly, it is insufficient to constitute a special interest to assert the same concerns as members of the public generally or to rely on "mere intellectual or emotional concerns". I return later to the

principles for which the case stands. However, it does leave

28 - open the precise circumstances that will suffice to enable an applicant to demonstrate a special interest in the

Qnus_v_ Alcoa of Australia Ltd In Qnus _v Alcoa, the plaintiffs claimed to be descendants and

members of the Gournditch-jmara aboriginal people and custodians of the relics of those people according to their laws and customs. They brought proceedings in the Supreme Court of Victoria to restrain the defendant from carrying out work that would interfere with relics of their people, allegedly in breach of the Archaeological and Aboriginal

It is perhaps hardly surprising that the plaintiffs were held by a unanimous High Court to have standing. This was a very

different case from ACF v Commonwealth. As Mason J. said (at

"The relics here have great cultural and spiritual significance for the Gournditch-jmara community. The members of that community are the guardians of the relics according to their laws and customs and they use the relics. I agree with Gibbs C.J. in thinking that in these circumstances the appellants have a special interest in the preservation of the relics, sufficient to support locus standi."

Nonetheless, Stephen J. made some observations in Qnus v_ Alcoa that have proved influential in later cases. After noting that the possession of intellectual or emotional concern is no disqualification from standing to sue (at 41), his Honour said

"Thirdly, the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of "special interest" supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a_ special interest exists as will be found standing to sue."

Brennan J, who had not been a member of the Court in A.C.F. v Commonwealth, expressed approval of the "special interest" test, formulated by Gibbs J. in that case, and noted that it was broader than the "special damage" test put forward in

Boyce (at 69-70). His Honour elaborated the concept of

"special interest", pointing out that it could embrace non-

"A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests

interests in the environment, in historical

heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement....

A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner. This will be the case where a_ statute protects the interests of a class, stopping short of

conferring personal rights upon the members of the class."

While Onus_v Alcoa involved a very different factual situation from that in ACF v Commonwealth, the observations of Stephen J. emphasise the need to assess the nature of the applicant's concern with and relationship to the subject matter. The observations of Brennan J. accept that modern legislation often protects non-material interests, and that an applicant will have standing to complain of an alleged breach if there

is an "affection or threatened affection" of the applicant's

interests by the apprehended breach of duty. (See also Re McHatten and Collector of Customs (NSW) (1977) 1 ALD 67 (AAT/ Brennan J.), at 69-70.) These formulations require a close

examination of the circumstances of an individual case and are inconsistent, in my opinion, with any rigid or easily

The authorities interpreting the phrase "person aggrieved" in the ADJR Act have taken a generous view of its scope, certainly no less broad than that articulated in Qnus_v_ Alcoa, The authorities have recently been reviewed by Lindgren J. in Right to Life Association NSW Inc v_ Secretar of the Commonwealth Department of Human Services and Health, (1994) 125 ALR 337 (FCA/Lindgren J.), at 347 ff. I have drawn in

The term "person aggrieved" is not to be given a narrow meaning. It covers a person who can show a grievance which will be suffered as a result of the decision, beyond that which he or she has as an ordinary member of the public:

Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 (FCA/Ellicott J.), at 79; Ricegrowers Co-

Qperative Mills Ltd v Bannerman (1981) 38 ALR 535 (FCA/Full Court), at 539-540. In considering the scope of s.13 of the

ADJR Act, it is appropriate to take into account that it is a remedial provision, contrasting with the limited common law obligation of a decision maker to give reasons; it is not "to

be construed grudgingly or with a penchant for technicality":

Australian Institute of Marine and Power Engineers _v

Secretary, Department of Transport (1986) 13 FCR 124 (FCA/Gummow J.), at 130, per Gummow J. The ADJR Act should

not be read as formulating a narrower criterion than the

principles governing legal and equitable remedies in public

law. As Gummow J. said in Institute of Marine Engineers (at

132-133): "the ADJR Act is ambulatory in its operation and draws within its scope a diverse and extensive collection of decision making processes, truly an unclosed class. Too rigid a criterion of locus standi will threaten to stultify the utility of the procedures the ADJR Act offers...[M]Juch depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public."

See also Ogle v Stickland (1987) 13 FCR 306 (FCA/Full Court),

The requirement that an applicant be a "person aggrieved" stipulates an involvement in the case greater than the concern of a person who is a mere ""intermeddler or busybody". The reason why the expression "person aggrieved" does not extend to a person who has no greater grievance than he or she would suffer as an ordinary member of the public is that anyone at all would apply for relief under the ADJR Act, at considerable cost to government: Ogle v Strickland, at 315, per Lockhart J. (although his Honour was careful not to embrace the "floodgates" argument). But the ADJR Act employs the broadest of technical terms, indicating that the required interest need not be legal, proprietary, financial or otherwise tangible. Nor need it be peculiar to the particular applicant: United States Tobacco Co v Minister for Consumer Affairs (1988) 83

It is the application of these statements of general principle

that gives rise to difficulty. However, the extent to which

~ 33 - non-financial and non-proprietary interests can suffice to

establish a special interest is illustrated, in my opinion, by

Ogle v Strickland In Qgle v Strickland, an Anglican priest and a Roman Catholic

priest sought to challenge the decision of the Censorship Board relating to the importation into Australia of an

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