Davis v Commonwealth [1986] HCA 66;

Davis v Commonwealth [1986] HCA 66; - HCA 1986 case summary — Zoe

[33]

8. The question that then arises is whether it is at least arguable that the fact that the plaintiffs are Aborigines, or are taxpayers, if proved, will be sufficient to give them standing to challenge the validity of the Act. The traditional view is that a member of the public has standing to bring an action challenging the validity of an Act of Parliament only if he establishes that the statute affects his private rights or interests or, on a rather more liberal view of the matter, only if he establishes that he is more particularly affected than other people. A recent discussion of the question is to be found in Robinson v. Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283, at pp 292, 301-302, 315, 327, 344-345. An analogous question, what interest is sufficient to enable a plaintiff to bring an action to prevent the violation of a public right or to enforce the performance of a public duty, was more recently considered in Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493 and Onus v. Alcoa of Australia Ltd. [1981] HCA 50; (1981) 149 CLR 27. The view of the majority in each of those cases was that a person has standing to bring an action of that kind if he has a special interest in the subject-matter of the action, but that a mere intellectual or emotional concern would not suffice to give locus standi: Australian Conservation Foundation v. The Commonwealth, at pp 526-531, 537-540, 547-552; Onus v. Alcoa of Australia Ltd., at pp 35-38, 41-43, 43, 44, 60-62, 72-74; cf. at pp 49-56. A strong belief on the part of the plaintiffs that the Act is offensive and undesirable as well as unconstitutional would not in itself give them standing to challenge its validity. However it was submitted on behalf of the plaintiffs that as Aborigines, descendants of the indigenous inhabitants of this country, they have a special interest in objecting to a statute which is designed to assist the celebration of the settlement and occupation of Australia by peoples who were not indigenous to this continent. It was further submitted that this interest goes beyond a mere emotional or intellectual concern, and that the cultural and civic interests of the plaintiffs are affected. As at present advised, although I agree that the plaintiffs, as Aborigines, are members of a class which may have a special interest in challenging the validity of the Act, I find difficulty in accepting that the interest is other than emotional or intellectual. Having regard to the principles which govern applications of this kind it is not necessary for me to express any concluded view whether the plaintiffs have an interest sufficient to give them standing; it is enough to say that it seems to me that the plaintiffs' argument cannot be dismissed as frivolous or hopeless - opinions may differ upon its acceptability and it is not plain and beyond debate that it must fail. It would therefore be wrong to strike out pars.6 and 41 of the statement of claim.

[36]

11. The final ground on which the plaintiffs base their standing to sue is that they are taxpayers. In Attorney-General (Vict.); Ex rel. Black v. The Commonwealth [1981] HCA 2; (1981) 146 CLR 559, at pp 588-590 I left open the question whether the fact that the plaintiffs in that case were taxpayers, and in some instances parents of children at government schools, gave them a special interest to challenge a law under which financial aid was given to the educational activities of church schools. Murphy J., on the other hand, at p.634, expressed the wide view that "Any one of the people of the Commonwealth has the standing to proceed in the courts to secure the observance of constitutional guarantees". As Mr Colquhoun-Kerr pointed out in his helpful address on behalf of the plaintiffs, there has in recent years been a marked relaxation of the rules regarding standing in both England and Canada. In Reg. v. H.M. Treasury, Ex parte Smedley [1984] EWCA Civ 7; (1985) QB 657 it seems to have been accepted that an interest as a taxpayer and an elector is enough to give standing to challenge delegated legislation under which public moneys would be disbursed. That case, and Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd., turned on the meaning of the words "sufficient interest" in O.53 r.3 of the Rules of the Supreme Court (U.K.), although that does not mean that they are of no assistance in deciding the present question. In Canada the majority of the Supreme Court has taken the view that a person who is not directly affected by legislation may nevertheless have standing to challenge it if he has a genuine interest as a citizen in its validity and if there is no other reasonable and effective manner in which the issue may be brought before the court: Minister of Justice of Canada v. Borowski (1981) 130 DLR (3d) 588. On the other hand, the tendency in the United States seems to be towards restricting rather than relaxing rules as to standing: see Valley Forge College v. Americans United [1982] USSC 16; (1982) 454 US 464 (70 L Ed 2d 700). It would not be right for me on this application to decide whether the fact that the plaintiffs are taxpayers gives them standing to challenge the validity of the Act under which public moneys have been and will be disbursed. The question is arguable and that is enough. I shall not strike out pars.5 and 29 which are material to this question.

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Davis v Commonwealth [1986] HCA 66; (1986) 68 ALR 18; (1986) 61 ALJR 32 (13 November 1986)

Parties

Legislation Cited (6)

Cases Cited (6)