Nth Qld Conservation Council Inc v Executive Director, Qld Parks & Wildlife Service [2000] QSC 172

Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70

Australian Conservation Foundation v The Commonwealth (1978 - 1980) 146 CLR 493

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefits Fund Pty Ltd [1998] HCA 49; (1998) 72 ALJR 1270

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 ALJR 490

North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; 127 ALR 617

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50

[1] CHESTERMAN J: The Executive Director, Queensland Parks and Wildlife Service ("the Director") has applied for an order pursuant to s 48(1)(a) and (b) of the Judicial Review Act 1991 ("the Act"), dismissing the Application for a Statutory Order of Review filed by the North Queensland Conservation Council Inc ("NQCC").

[2] The Director advances two grounds. The first is that NQCC is not a "person aggrieved" by the decision which is the subject of the Order for Review, as the term is defined in s 7 of the Act. The second is that NQCC did not file its Application for review within a reasonable time.

[3] The decision referred to was made by the Director who, by permit No. G99/194 issued on 14 February 2000, allowed the State of Queensland ("the State") to develop a harbour and associated works at Nelly Bay on Magnetic Island. The proposed development included the construction of a breakwall and safe harbour, as well as a residential estate and other public facilities. Part of the proposed development is located within the Great Barrier Reef Marine Park.

[4] The proposal has drawn criticism from environmental groups in the region, particularly NQCC, which has consistently objected to it. NQCC campaigned to prevent the development and to have the area returned to its natural state.

[5] A number of grounds are advanced in the application for the review of the decision but, essentially, NQCC contends that the Director had no power to permit the proposed works because they will remove an area of the Great Barrier Reef Marine Park by reclaiming part of the sea bed and alienating it from Crown ownership. This is said to constitute a revocation of part of the Marine Park which can only be done with the express consent of Parliament - See s 22 of the Marine Parks Act 1982.

[6] In order to challenge the decision of the Director NQCC must have standing. It must be a "person aggrieved" by the decision of the Director for the purposes of the Act.

[7] NQCC has no private rights or proprietary interests which are infringed by the decision. Instead it seeks to enforce the 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 protect".

[8] The test for determining who has standing to challenge the decision of a government or public authority has been considered frequently in recent years. It is, I think, possible to discern some relaxation in the strictness with which the test was earlier applied. There appears to be a greater readiness on the part of courts to permit challenges to the decisions of executive government. A second general observation is that the formulation of the test does not allow any very precise understanding of what criteria confer standing. It is clear that if the decision affects some proprietary or financial interest the person affected would be recognised as an appropriate challenger. Beyond that the test provides no specific guidance.

[9] The proposition that an applicant must have a special interest in the subject matter of the action is founded upon the judgment of Gibbs J in Australian Conservation Foundation v The Commonwealth (1978-1980) 146 CLR 493 at 527. His Honour said, at 530,

" . . . 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."

[10] This passage seems, with respect, to describe what is not a special interest but provides no real assistance in determining what is. The rationale for the rule appears in a later judgment of the same judge, then Gibbs CJ, in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 35:

"If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the court should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busy bodies and cranks and persons actuated by malice, but also the persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to a very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. . . . a plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one . . . the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation."

[11] The conventional approach to determine whether a party has standing has become to consider the nature of the "special interest" which is asserted as justifying standing. According to Stephen J in Onus the criterion of "special interest"

". . . 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 the plaintiff's relationship to that subject matter."

Such a criterion is vague in content and uncertain of application. It provides little practical assistance in determining the sufficiency, or even the existence, of a special interest in a particular case.

The sorts of interests that will suffice to give standing will depend on the individual facts of each case. As Mason J said in ACF (at 547) quoting from his judgment in Robinson v. Western Australian Museum (1977) 138 CLR 283 at 327-328:

" the cases are so 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."

[12] The rationale for limiting standing as explained by Gibbs CJ in Onus suggests a solution to the problem. The plaintiff should have standing if it can be seen that his connection with the subject matter of the suit is such that it is not an abuse of process. If the plaintiff is not motivated by malice, is not a busy body or crank and the action will not put another citizen to great cost or inconvenience his standing should be sufficient. The difference in approach is that the former looks to the plaintiff's interest in bringing the suit. The latter looks to the effect of the proceedings on the defendant. One is, in a sense, the obverse of the other. If a plaintiff's interest is insufficient the proceedings will be abusive. It is, however, probably easier to identify a proceeding which is an abuse of process than to recognise a "special interest". The distinction which must be drawn is between those who seek to prevent an abuse of process and those who seek to abuse the process itself.

[13] Whether this approach is helpful or not, it appears now to be established that courts should not be too strict in their assessment of what constitutes special interest. As Lockhart J noted in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 at 64-65 the determination of questions of standing in public interest proceedings should not be approached in a rigid or inflexible manner.

"The words "person aggrieved" or like words . . . derive their meaning and take their colour from the context in which they appear and in the light of the particular statute concerned. . . . courts have shown an increasing tendency, not always consistent, to construe expressions such as "person aggrieved" liberally. . . . the meaning . . is not encased in any technical rules; much 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."

[14] In a case much debated in submissions, North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; 127 ALR 617 Sackville J said at 627:

"There is much to be said for the view that the focus of attention where decisions of public authorities are challenged . . . should not be (the) benefit that might accrue to the plaintiff or the applicant. . . (but) should be on those "who can represent the public interest [in litigation] most effectively and faithfully" . . . 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 to the concept of "person aggrieved" over the last century".

[15] The "liberalising tendency" appears to have been endorsed by the joint judgment of Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 72 ALJR 1270. Their Honours noted (para 34) that:

"The evolution of the . . . doctrine of "sufficient special interest" represents an attempt to alleviate that state of affairs (that the Attorney General is the only proper plaintiff) whilst keeping at bay "the phantom busy body or ghostly intermeddler". The result is an unsatisfactory weighting of the scales in favour of a defendant public body. Not only must the plaintiff show the abuse or threatened abuse of public administration . . . but . . . also . . . some special interest in the subject matter of the action in which it is sought to restrain that abuse."

In para 46 their Honours pointed out that the rule requiring special interest is flexible and that the nature and subject matter of the litigation will dictate what amounts to a special interest. They went on:

"This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for special interest . . . where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support the public interest in due administration which enlivens equitable intervention in public law . . . it would be recalled that, in Onus . . . Brennan J warned that to deny standing may be to "deny to an important category of modern public statutory duties an effective procedure for curial enforcement"."

[16] A more emphatic statement of the point occurs in the judgment of Gaudron J in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 ALJR 490 at para 56. The case did not involve questions of standing or special interest so the passage I am about to quote was not written with that in mind. Nevertheless it expresses a philosophy which appears apposite in the present context. Her Honour said:

"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less."

[17] It would seem to follow from the express recognition of a public interest in ensuring that governmental decision making occurs lawfully that an application for the review of an administrative decision will not be an abuse of process unless it is officious or is the product of some collateral motive. The law may be moving towards a statement that the public interest in ensuing the lawful exercise of executive power is itself a special interest.

[18] There are two decisions of the Federal Court which suggest that, at least in some circumstances, associations concerned with the protection of the physical environment have a sufficient standing to question executive decisions which have an impact on that environment. I have already mentioned one case, North Coast. The other, earlier, case was Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70 in which Davies J held that the plaintiff had standing to challenge the minister's grant of a licence for the export of woodchips from two State forests. The permission to log the forests was described by his Honour as "one of the major environmental issues of the present time". In distinguishing ACF v Commonwealth Davies J said (at 73)

". . . the present issue is not a local issue such as might have been involved in the ACF case. And, in the decade that has past since the ACF was denied standing to protect the wetlands . . . in central Queensland, public perception of the need for the protection and conservation of the natural environment and for the need of bodies such as the ACF to act in public interest has noticeably increased ..."

"The ACF is not just a busy body . . . it was established and functions with governmental financial support to concern itself with such an issue . . . if the ACF does not have a special interest in the South East Forest, there is no reason for its existence. . . . the community at the present time expect that there will be a body such as the ACF to concern itself with this particular issue and expects the ACF to act in the public interest to put forward a conservation view point as a counter to the view point of economic exploitation."

[19] In the second case, North Coast, an association concerned with environmental conservation was held to have standing to ask the relevant minister for his reasons for granting an export licence for woodchips processed from forests in the north eastern New South Wales. Sackville J found five factors "demonstrating . . . the importance of (the Council's) concern with the subject matter of the decision and the closeness of its relationship to that subject matter". The five factors were that the applicant

(a) Was the peak environmental organisation in the north coast region of New South Wales, having forty -four environmental groups as members. The forests were within the area of its concern.

(b) Had been recognised by the Commonwealth Government since 1977 as a significant and responsible environmental organisation. Recognition took the form of financial grants.

(c) Had been similarly recognised by the New South Wales State Government affording it membership on the Forestry Policy Advisory Committee.

(d) Had conducted or coordinated projects and conferences on matters of environmental concern for which it had received Commonwealth funding.

(e) Had made submissions on several occasions to State Government instrumentalities concerning forestry management issues.

[20] A great deal of time was occupied during the hearing by NQCC attempting to prove that factually its position was identical to that of the North Coast Environmental Council, and by the Director attempting to distinguish NQCC's status and activities from those of the New South Wales body. In my opinion this was a barren exercise. Controversies of the present kind are not to be resolved by a minute comparison of the facts of one case with those of another. The principle which determines whether a party has standing is very broadly expressed and is said to be flexible depending upon the circumstances of each case and the nature of the legal proceedings in which standing is claimed. Accordingly, other decisions which turn upon the application of the principles to particular facts can be of limited assistance. Having said that, it must be accepted that the two conservation cases are of assistance in showing the kinds of considerations which have been accepted as establishing a sufficient special interest to confer standing and as indicative of the court's approach to cases of this kind.

[21] NQCC claims to be the peak environmental body in the area between Proserpine in the south, Tully in the north, the Great Barrier Reef to the east and the Northern Territory border to the west. The claim to "peak" status was seen as important in assimilating its position to that of the North Coast Council.

[22] The coordinator of NQCC, Mr Tager, argues that the peak status of the body is evidenced by its funding from the State. Every application for funding has referred to NQCC's campaign for the conservation of Nelly Bay and funding has been provided during the period in which the proposed development has been the subject of controversy.

[23] The funding which NQCC received varied between $9,500 and $13,000 per annum for the years 1995 -2000. Most grants have been service based and represent between 5 and 6.8% of the total funding distributed to conservation groups in those years. Eligibility for these grants does not require an applicant to have status as a "peak" representative body. Grants to voluntary environment and heritage organisations have totalled between $9,000 and $20,500 in the years 1996 to 2000. Again, eligibility criteria do not provide peak status as a requirement.

[24] These figures were tendered to show firstly, that NQCC does not attract large proportions of the grants available and secondly, that peak status is not a requirement for eligibility. However, it not correct to draw from these facts the conclusion that NQCC is not a significant conservation group. I doubt that the funding figures are necessarily indicative of the size or importance of the organisation. "Peak" status is as ephemeral as "special interest". Its importance lies only in showing that the organisation is serious and responsible. The evidence shows that NQCC answers this description.

[25] Recognition of NQCC by the State is evidenced by its participation in Queensland Regional Conservation Organisation Forums the purpose of which is to meet with relevant Ministers and their advisors. NQCC attends the annual State Conservation Conference. Some of the costs of attending are funded by the State. This participation continued throughout the time that NQCC was opposing the Nelly Bay development.

[26] NQCC has also received funding from the Commonwealth government through the grants for voluntary conservation organisation scheme. All applications for funding by NQCC have referred to its involvement in Nelly Bay conservation.

[27] NQCC is involved in a number of committees concerned with conservation issues. It has been involved in the Mahogany Glider Recovery Team, the Cardwell-Hinchinbrook Regional Consultative Group and the Burdekin Basin Water Advisory Committee. It is also involved in several Commonwealth bodies including the Wet Tropics Conservation Liaison Group, the Halifax Bay Defence plan and the Townsville Local Marine Advisory Committee. It took a leading role in the Port Hinchinbrook conservation debate, and has been involved in efforts to protect dugong and sea turtles. It has also had involvement with proposed coastal development at Dungeness, the Hinchinbrook Island Management Plan, the Cairns and Whitsunday Management Plan, the Family Islands Management Plan as well as aquaculture proposals in the Hinchinbrook and Palm Islands groups.

[28] It has been active in conservation issues on Magnetic Island itself. NQCC is implementing voluntary conservation agreements in respect of land at Bolger Bay, and has been active in campaigns to resist resort development at Florence Bay. It has actively campaigned against proposed high rise development at Bright Point which is adjacent to Nelly Bay.

[29] With respect to the Nelly Bay development itself, there is evidence of a substantial and sustained opposition from the inception of the proposal to the present time. This involvement has taken the form of submissions and briefs to members of the Queensland Legislative Assembly, State Ministers as well as Commonwealth Ministers and parliamentarians. NQCC has also voiced its concern to the general community through media involvement in print, radio and television, as well as distributing information leaflets.

[30] Mr McPhail, the Executive Director of Queensland Parks and Wildlife Service, has said that a large number of public submissions were received in response to the draft, supplementary and final Environmental Impact Statements. This evidence is tendered to prove that NQCC is only one of many persons with concerns about the development. This may be so, but it does not mean that NQCC did not have a particular concern about the proposal.

[31] These facts depict an organisation with the activities and attributes which Sackville J ascribed to the North Coast Council. There is evidence of government recognition through funding and representation on government forums. NQCC has been actively involved in a diverse range of environmental issues including marine issues. Additionally, there has been an intimate involvement in environmental issues surrounding the Nelly Bay development. The involvement was early and consistent and has consumed considerable time and resources. All these activities have been in line with the objects of the organisation, as set in its constitution, which include

"To ensure that human activity respects species, habitats and the integrity of ecosystems;

To promote and defend the principles that development must only occur within the framework of ecological sustainability....;

To develop policies, contribute to educating the communities;

Work with governments, non-government organisations... make submissions;

Produce reports and... support efficient use of resources within the context of ecological sustainability."

[32] The conventional approach to this enquiry is to determine whether the interest of NQCC is greater than that of an ordinary member of the public and is something more than a mere emotional or intellectual commitment to the belief that the law should be observed.

[33] If I were obliged to apply this principle I would conclude that NQCC does have a sufficient special interest to make it "person aggrieved" for the purposes of s 7 of the Act. Its position is broadly similar to that of the North Coast Environment Council and I would respectfully adopt the reasoning of Sackville J and of Davies J in the earlier cases to arrive at the same result.

[34] I would, however, prefer to approach the question slightly differently by asking whether NQCC's concern with the litigation is such that its application is not an abuse of process. This in turn involves an enquiry into the nature of the legal proceedings, the nature and extent of NQCC's interest in those proceedings and their outcome, and whether any person will be put to expense or inconvenience as a result of the proceedings.

[35] It is, I think, important that the proceedings ask for the judicial review of an administrative decision on the grounds that the decision maker had no right to grant the permit in question. The purpose of the proceedings is to test the lawfulness of the decision. They will not directly affect any legal rights or proprietary interests. It is true that the development will be delayed and to that extent the State as the developer, will be put out, but the delay should not be great and if the application succeeds the development, in its present form, should not proceed because public lands will have been unlawfully alienated. Another point of significance is that if NQCC does not have standing to test the validity of the permit no one else will have, and the decision which may be quite unlawful, will go uncorrected. Society has an interest in efficient government but it has an equal interest in lawful government.

[36] The nature and extent of NQCC's activities and its opposition to the development have already been described. Its involvement with the conservationist cause in general and Nelly Bay in particular means that its desire to challenge the lawfulness of the permit is not meddlesome. No doubt it has become a thorn in the side of the State, which has decided that the development should be allowed to proceed but irritation at persistent objection to the development does not prove that the application is an abuse of process. The essence of such abuse is that there is no real controversy to be resolved and that proceedings were begun only, or primarily, to vex an opponent. I do not think it can be said that the object of the litigation is to offend or distress the Director or the State. NQCC's purpose is genuinely to test the legal propriety of the permit as part of its commitment to the protection of the natural environment. That attempted protection is its reason for existence and the reason why it is recognised and supported by the State and the Commonwealth. The public expects that development will occur with due regard to the environment and that, in turn, requires a balance of competing factors. To allow the balancing process there must be a contestant who can challenge arguably unlawful developments.

[37] The third subject of the enquiry has already been touched upon. The proceedings will not, in the words of Gibbs CJ, "put some . . . citizen . . . to a very great cost and inconvenience in defending the legality of his actions". The only parties to the litigation are NQCC and the Director whose decision is impugned. The only costs are those of the proceedings which will be recovered by the successful party. There is no particular inconvenience of hardship in the Director being required to prove that the permit is lawful. The enactment of the Judicial Review Act has meant that governmental decision makers are routinely required to defend the decision making processes. There is no relevant inconvenience in being challenged in the way expressly contemplated by the Act.

[38] For these reasons I would conclude that the application is not an abuse of process and that NQCC has standing to bring the proceedings.

[39] The question is whether NQCC filed its Application for review within the time specified in s 26 of the Act, or alternatively, a reasonable time after the decision was made.

[40] Section 26 provides that the period within which an application for a statutory order for review must be made is the period beginning on the day on which the decision is made and ending 28 days after the relevant day. The "relevant day" is defined in s26(5)(c). If the applicant has requested reasons from the decision maker, the relevant day is the day the statement of reasons is given.

[41] A statement of reasons was never received by NQCC and no notification was given that it was not entitled to request reasons or that no reasons were to be given. Section 26(5)(c) does not apply.

[42] The alternative argument is that NQCC filed its application within a reasonable time. In this case the request for reasons was made by NQCC on 3 March 2000. Mr Tager was unsure as to when the 28 days for filing an application for review would commence. Several inquiries were made in order to determine the closing date for the application to be made. An officer of the Environmental Protection Authority ("EPA") informed him that the 28 day period would begin 28 days after the request for reasons was made. The time limit was therefore calculated to be 28 April 2000, the day on which the application was filed. In the circumstances it was reasonable for NQCC to rely on the intimation given to it by the EPA, which should have indicated within 14 days of the request for reasons that no reasons were to be given. I therefore find that the application for a statutory order for review was made within time.

1. That the application filed 17 May 2000 for an order that Application S3728/2000 be dismissed is itself dismissed.

2. That the respondent, Executive Director, Queensland Parks and Wildlife Service, pay the applicant's costs of and incidental to this application to be assessed on the standard basis.