Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited - [2000] HCA 11 - HCA 2000 case summary — Zoe

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Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

[2000] HCA 11

High Court of Australia|2000-03-09|Before: Deane J, Gleeson CJ, Callinan JJ, Hugh J

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Source facts

Court

High Court of Australia

Decision date

2000-03-09

Before

Deane J, Gleeson CJ, Callinan JJ, Hugh J

Catchwords

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

Source

Original judgment source is linked above.

Catchwords

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

Judgment (408 paragraphs)

[1]

The applicant commenced proceedings against the respondent in the Federal Court of Australia claiming that, in making the statement set out above, it contravened ss 52, 53(aa) and 53(c) of the Trade Practices Act 1974 (Cth) ("the Act") and the equivalent provisions of the Fair Trading Act 1987 (NSW). The terms of ss 52(1), 53(aa) and 53(c) of the Act will be set out later in these reasons.
By its amended application, the applicant seeks an order that the respondent publish "corrective advertising ... so as to provide an accurate estimate of likely future traffic volumes on the Eastern Distributor" and also a declaration that the respondent engaged in misleading and deceptive conduct contrary to s 52 of the Act or in breach of s 42 of the Fair Trading Act. The proceedings were removed into this Court by order under s 40(1) of the Judiciary Act 1903 (Cth).
The applicant does not assert that it suffered any loss or damage in consequence of the conduct of which it complains. Moreover, it admits that it has no special interest in the subject-matter of the proceedings. It claims, however, that, so far as it complains of contraventions of the Act, it has standing to bring the proceedings by reason of ss 80 and 163A of the Act.
Subject to certain other provisions which do not bear on these proceedings, s 80(1) relevantly provides that:

[2]

[13]

As a matter of ordinary language, the expressions "any other person" in s 80 and "a person" in s 163A of the Act include a person who has neither a direct nor special interest in the subject-matter of the proceedings[18]. And the ordinary rules of statutory interpretation require that they be so construed[19]. However, it was contended for the respondent that those sections are invalid insofar as they purport to authorise the institution of proceedings by persons who have neither a direct nor a special interest in the subject-matter of the proceedings and that they should be read down accordingly. That is so, it was put, because, absent a direct or special interest, there is no justiciable controversy with respect to which jurisdiction may be conferred on or invested in a court pursuant to Ch III of the Constitution.
It is well settled that the only power that the Parliament may confer on courts created pursuant to Ch III of the Constitution is judicial power or power ancillary to the exercise of judicial power[20]. Moreover, by ss 75, 76 and 77 of the Constitution, it can only confer or invest jurisdiction with respect to "matters"[21]. Central to the notion of "judicial power" and central, also, to the meaning of "matter" is the requirement that there be a justiciable controversy[22]. In essence, it was contended for the respondent that, unless the person who institutes proceedings has some direct or special interest in the subject-matter of the proceedings, there is no justiciable controversy and, hence, no "matter" capable of resolution by the exercise of judicial power.
In support of the argument that there is no justiciable controversy unless the person invoking jurisdiction has some direct or special interest in the subjectmatter of the proceedings, counsel for the respondent pointed to various judicial statements as to what is involved in the notion of "justiciable controversy" and, also, to a number of decisions of the United States Supreme Court with respect to Art III of the United States Constitution. Recently, in Steel Co v Citizens for a Better Environment[23], the United States Supreme Court considered a question similar to that involved in these proceedings. It is convenient to refer at once to that case.
The question in Steel Co was whether an environmental protection organisation had standing under a citizen-suit provision[24] to seek a declaration that Steel Co had violated a legislative reporting requirement and, also, to seek injunctive and other relief. In that case, Scalia J (with whom Rehnquist CJ, O'Connor, Kennedy and Thomas JJ concurred; Breyer J also concurred in relation to this part of the judgment) enunciated three "irreducible" constitutional requirements for standing. The first was that earlier identified in Lujan v Defenders of Wildlife[25], namely, that there be "an 'injury in fact' - an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) 'actual or imminent, not "conjectural" or "hypothetical"'"[26]. The second was that there be "a fairly traceable connection between the plaintiff's injury and the complained-of conduct" and the third that there be "redressability - a likelihood that the requested relief will redress the ... injury"[27].

[21]

In Gouriet v Union of Post Office Workers, Lord Wilberforce described the general rule that only the Attorney-General or a person who has been granted the Attorney-General's fiat may bring proceedings with respect to a public wrong as "constitutional" in nature, explaining "[t]hat it is the exclusive right of the Attorney-General to represent the public interest"[30]. In that regard, his Lordship referred to the observation of Lord Westbury LC in Stockport District Waterworks Company v Mayor of Manchester[31] that "the constitution of [Great Britain] ha[d] wisely intrusted the privilege [of representing the public interest] with a public officer, and has not allowed it to be usurped by a private individual."
It is clear from what was said in Gouriet that the general rule that only the Attorney-General may institute proceedings for a public wrong derives not from any constitutional limitation as to the role or jurisdiction of courts, but from the constitutional role of the Attorney-General. So much is confirmed by Attorney-General v Oxford, Worcester, and Wolverhampton Railway Company, in which case Lord Romilly MR founded the Attorney-General's right to seek relief for a public wrong on his role as the representative of the parens patriae[32].
The general rule that only the Attorney-General may institute proceedings with respect to a public wrong is, however, subject to exceptions. Thus in Boyce v Paddington Borough Council[33], Buckley J held that an individual could bring proceedings with respect to an interference with a public right, "first, where the interference ... is such as that some private right of his is at the same time interfered with ... and, secondly, where ... the plaintiff, in respect of his public right, suffers special damage peculiar to himself". In Australian Conservation Foundation v The Commonwealth[34], this Court extended the second of those exceptions to permit of the institution of proceedings by a person who has a special interest in the subject-matter of those proceedings.
Once it is appreciated that the "constitutional" nature of the rule that only the Attorney-General may bring proceedings with respect to a public wrong derives from the status of the Attorney-General in British law, it follows that there is no equivalent constitutional basis for that rule in this country. That is because, although the Attorney-General occupies an office which is well understood in our legal system, it is not an office recognised by the Constitution. Thus in this country, the general rule that only the Attorney-General may bring proceedings with respect to a public wrong is simply a rule of the common law.
To say that the general rule that only the Attorney-General may bring proceedings with respect to a public wrong is simply a rule of the common law is not to say that it does not find some resonance within the concept of "judicial power" or in the constitutional meaning of "matter" in Ch III of the Constitution. But save to the extent that it finds that resonance, there is no reason why it cannot be abrogated by the Parliament so as to allow any person to represent the public interest and, thus, institute legal proceedings with respect to a public wrong. And subject to the same qualification, there is no reason why the rule cannot be modified and adapted by the evolutionary processes of the common law. In fact, it was modified by those processes when the second of the Boyce exceptions was extended to allow for persons having a special interest to institute proceedings with respect to a public wrong.

[23]

It is convenient to note, at once, that although Ch III of the Constitution has significant similarities with Art III of the Constitution of the United States of America, there are, as this Court has often noted, significant differences[35]. In particular, the latter is concerned with "Cases" and "Controversies", whereas Ch III selects "matters" as the subject-matter of federal jurisdiction. And "matters" is a word of such generality that it necessarily takes its content from the categories of matter which fall within federal jurisdiction and from the concept of "judicial power". There is, thus, no reason why the position in this country should equate precisely with that reached in the United States of America.
Although the constitutional meaning of "matter" is to be derived, in significant part, from the concept of "judicial power", it is not necessary in this case to attempt any exhaustive exposition of that concept. It is sufficient to describe judicial power as that power exercised by courts in making final and binding adjudications as to rights, duties or obligations put in issue by the parties[36]. Similarly, it is sufficient to note that the constitutional meaning of "matter" involves the existence of a controversy as to "some immediate right, duty or liability to be established by the determination of the Court."[37]
The classes of matter in respect of which the judicial power of the Commonwealth is engaged are specified in ss 75 and 76 of the Constitution and include matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth"[38]. It is well established that prohibition may issue to a person who has neither a direct nor special interest in the subject-matter of the proceedings constituted by an application to obtain that relief[39]. That being so, there is no basis for concluding that either the concept of "judicial power" or the constitutional meaning of "matter" dictates that a person who institutes proceedings must have a direct or special interest in the subject-matter of those proceedings. Indeed that proposition is denied by the very rule that the Attorney-General as the representative of the public interest - not as a person having a direct or special interest - may bring proceedings with respect to a public wrong.
Once it is accepted that neither the concept of "judicial power" nor the constitutional meaning of "matter" dictates that a person who institutes proceedings must have a direct or special interest in the subject-matter of those proceedings, it follows as was pointed out in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd that, for the purposes of Ch III of the Constitution, "questions of 'standing', when they arise, are subsumed within the constitutional requirement of a 'matter'."[40] This does not mean that, for the purposes of Ch III, questions of standing are wholly irrelevant.
There may be cases where, absent standing, there is no justiciable controversy. That may be because the court is not able to make a final and binding adjudication. To take a simple example, a court could not make a final and binding adjudication with respect to private rights other than at the suit of a person who claimed that his or her right was infringed. Or there may be no justiciable controversy because there is no relief that the court can give to enforce the right, duty or obligation in question[41].
The relationship between "standing" and available relief was adverted to by Aickin J in Australian Conservation Foundation v The Commonwealth. In that case his Honour observed[42]:

[70]

Part IV deals with restrictive trade practices and Pt IVA with unconscionable conduct. It will be apparent that s 80 operates in respect of a wide range of contraventions of the Act and it would be myopic to construe it solely by reference to its connection with Pt V, and with s 52 in particular.
The reference in s 80(1) to "the Commission" is to the Australian Competition and Consumer Commission established by s 6A of the Act. Section 86(1) is a law made pursuant to s 76(ii) and s 77(i) of the Constitution. It confers jurisdiction upon the Federal Court with respect to matters arising under the Act, such as the present litigation. Concurrent federal jurisdiction with respect to certain matters is invested in or conferred upon the courts of the States and Territories by s 86(2), (3). Provision is made by s 86A for the transfer of certain matters by the Federal Court to a court of a State or Territory and s 86B provides for transfer to the Family Court of Australia.
The Federal Court may grant an interim injunction pending the determination of an application under s 80(1) where, in the opinion of the Court, it is desirable to do so (s 80(2)). If the Court would require an applicant, not being the Minister or the Commission, to give an undertaking as to damages or costs, the Minister may give that undertaking and it is to be accepted by the Court without requirement of a further undertaking from any other person. That is the effect of s 80(7). Where the applicant in such a proceeding is the Minister or the Commission, there is to be no requirement by the Court for an undertaking as to damages (s 80(6)).
The section is wider in scope than s 16 of the Clayton Act 1914 (US) which entitles a private party to seek injunctive relief against "threatened loss or damage by violation of the antitrust laws"[53]. The regime established by s 80 differs in several respects from that applying to injunctions as traditionally understood[54]. In particular, negative and mandatory injunctions may be granted whether or not it appears to the Court that there is a continuing threat or an imminent danger of substantial damage and whether or not there has been a previous contravention. That is the effect of sub-ss (4) and (5) of s 80.
The entitlement conferred upon "any other person" by s 80(1) is subject to limitations. In particular, a person, other than the Commission, is not entitled to make such an application by reason of contravention of s 50 (s 80(1A)). Section 50 is in Pt IV (ss 45-51AAA), and deals with the prohibition of acquisitions that would result in a substantial lessening of competition. Section 50A deals with certain acquisitions that occur outside Australia. A person, other than the Minister or the Commission, may not apply for an injunction under s 80(1) on the ground of a person's actual or attempted or proposed contravention of s 50A or actual or proposed involvement in a contravention of that provision (s 80(1AAA)).

[86]

Section 52 thus is an exercise by the Parliament of its powers to create new norms of conduct and require their observance by specified sections of the community. The legislature may also, in exercise of its powers, adapt remedies known at general law or modify them or create new remedies. It may do so not only to prevent or to compensate for injury done by violation of the new federal norm of conduct[71], but to enforce or induce compliance with the federal law[72]. An example of the latter was the treble damages provision of s 11 of the Australian Industries Preservation Act 1906 (Cth). The validity of s 11 was upheld in Redfern v Dunlop Rubber Australia Ltd[73].
Part VI (which contains s 80) and Pt XII (which contains s 163A) make provisions which effect the attainment of one or more of those ends. In many cases, the remedy sought under s 80 for a prohibitory injunction would have the character of enforcing present compliance or inducing future compliance with the norm of conduct imposed by s 52, and a declaration would provide consequential relief. In the present case, the mandatory injunction sought would be apt to counterbalance the injury to the public interest allegedly sustained by the publication of the Statement.
The applicant contends that its application to the Federal Court invited the exercise by that Court of jurisdiction with respect to a matter arising under a law made by the Parliament, within the meaning of s 76(ii) of the Constitution. The "matter" would "arise under" the Act because the duty in question in the matter, observance of the norm imposed by s 52, would both owe its existence to the Act and depend upon Pt VI of the Act for its enforcement[74].
The constitutional point taken by the respondent, which precipitated the order for removal into this Court, gives rise to another "matter" in the same proceeding. This is a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution and s 30(a) of the Judiciary Act. There is no objection to the constitutional competence of this Court to determine that matter. The objection is that the substantive proceeding does not answer the criteria for a matter arising under a law of the Commonwealth.
The Act in its various operations is supported by a number of heads of power in s 51 of the Constitution. I have indicated earlier in these reasons the support derived from such provisions of ss 51(i), (v), (xx) and 122 of the Constitution. However, the legislative powers conferred by s 51 are expressed to be "subject to this Constitution" and therefore to Ch III[75].
Section 76(ii), in conjunction with s 77(i), of the Constitution permits the conferral of jurisdiction on federal courts in matters arising under laws made by the Parliament for the Territories under s 122 of the Constitution. It was determined in Northern Territory v GPAO[76] that in such cases the constitutional source of the jurisdiction is those provisions of Ch III and that the jurisdiction is federal. Section 122 of the Constitution is not, in terms, expressed to be "subject to this Constitution", as is s 51. Nevertheless, for the purposes of conferral of federal jurisdiction pursuant to Ch III, the same situation must obtain.

[108]

In any event, the common law courts were not limited to the trying of civil actions to vindicate disputes as to private rights and liabilities. Further, in criminal prosecutions, the Crown was not the only competent moving party. Reference has been made earlier in these reasons to the importance placed upon the role of the common informer by Deane J in his analysis of s 80 in Phelps. Reference must also be made to the writs of habeas corpus, quo warranto and prohibition.
Habeas corpus has been associated in the popular mind with relief against abuse of public power by wrongful deprivation of liberty. The association is correct, but the writ lay also in what now would be called family law disputes[88]. However, where the complaint was of the wrongful imprisonment of a person, then, in the words of Madden CJ, "[a]nybody in the community who knows that a person is wrongfully imprisoned has a right to have the writ to discharge that person out of the imprisonment"[89]. In Ex parte Walsh and Johnson; In re Yates, Isaacs J rejected the proposition that when habeas corpus was sought in this Court in aid of a case of alleged constitutional invalidity, there was no cause "between parties"[90].
Likewise, in the Court of King's Bench, a proceeding by way of information in the nature of quo warranto lay at the instance of private persons where there had been usurpation of an office of a public nature or an office "substantive in character"[91]. In his judgment in R v Speyer, in which he accepted these propositions respecting quo warranto, Lord Reading CJ observed that a "stranger to the suit can obtain prohibition"[92]. In this Court, there is a body of authority that, even in the absence of a legal interest, a "stranger" to an industrial dispute has standing as prosecutor to seek an order for prohibition under s 75(v) of the Constitution; this is so although in such cases the discretion to refuse the remedy may be greater than would otherwise be the case. Authority for these propositions respecting s 75(v) was collected in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd[93].
In Chancery, the position was different from that with respect to common law actions. There, the plaintiff by the bill sought to lay out the facts and circumstances demonstrating the equity to the relief claimed. That equity might arise from the violation or apprehended violation of rights secured in the exclusive jurisdiction, or by reason of the inadequacy of legal remedies available to vindicate the plaintiff's legal rights, or as a defensive equity to resist the legal claims made against the plaintiff by the defendant in an action the defendant pursued at law[94].
The legal rights, interests and remedies in question might be derived not from the common law but from statute. A law might, upon its proper construction, confer rights upon the plaintiff but provide no remedies or inadequate remedies. In those circumstances, Chancery might intervene to protect the plaintiff's statutory rights[95]. On the other hand, rather than conferring rights upon the plaintiff, statute might impose obligations upon administrators or particular sections of the community, or upon the community at large. Statute might confer franchises or privileges with particular limitations upon them. In either case, the statute might provide no means, or inadequate means, for enforcement of the obligation or to restrain ultra vires activity. This led to the engagement of the equity jurisdiction in matters of public law. That subject is traced in the judgments in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd[96]. As is there explained, the Attorney-General was treated as a competent party (with or without a relator) to seek enforcement of the statutory prohibitions by equitable remedies, particularly the injunction. The Attorney-General also had traditional functions in the exclusive jurisdiction of Chancery with respect to matters involving a public element, in particular the enforcement of charitable trusts.
The question arose as to the competency of parties other than the Attorney-General to proceed without the Attorney-General's fiat to seek enforcement of statutory regimes or obligations of a public nature. Here lies the genesis of the modern concept of "standing", in its translation from legislative to judicial proceedings. The litigious activity did not involve the exercise by a plaintiff of personal rights bestowed upon the plaintiff by statute. Rather, it involved the use of the auxiliary jurisdiction in equity to fill what otherwise were inadequate provisions to secure the compliance by others with particular statutory regimes or obligations of a public nature.
The result is that, at the time of the adoption of the Constitution, and with respect to a range of disputes which might thereafter attract federal jurisdiction, there was no single theory as to what always would be required to render competent the institution of proceedings by a particular party. In particular, there was no general rule which prescribed the adequacy in any given case of the connection between the instituting party and the subject-matter for determination in that case. Further, in matters of what now would be called public law there was no single criterion as to the need for, or the content of, a standing requirement.
All of this suggests the need for considerable caution in extrapolating to Ch III generally narrow rules of standing from the fields of public law under consideration: namely, where a statute was silent and equity intervened (a discourse which was still evolving in 1900) and the new field of judicial review for constitutional validity referred to above. It would be incautious to adopt a criterion for standing which would restrict the means available to the Parliament under s 76(ii) of the Constitution to enforce or induce by new remedies compliance with legislative norms of conduct. Such an extrapolation would deny the avowed design of Ch III. This involved employing "matter" as a comprehensive term, established by usage, to describe every possible kind of judicial procedure which could arise under Ch III[97].

[125]

One reason for the inclusion of s 75(v) was to avoid the gap in the original jurisdiction of the United States Supreme Court disclosed by the actual decision in Marbury v Madison[114]. The discussion of s 75(v) by Quick and Garran[115] indicates that the provision was included with an eye to overcoming the position in the United States. In Marbury v Madison, the Supreme Court held invalid legislation which purported to enlarge the original jurisdiction of the Supreme Court beyond that stipulated in Art III by authorising the issue of mandamus.
In each of the three recent Supreme Court decisions, the laws in question, the Endangered Species Act 1973 (US) and the Emergency Planning and Community Right-To-Know Act 1986 (US), authorised "any person" to commence a civil action or suit "on his own behalf" in a United States District Court to compel compliance with the regulatory regime established by the law. Another example of Congress conferring standing "solely to assure that government officials obey the law"[116] was found in the Clean Air Act 1970[117]. Earlier authority in the Supreme Court suggested that the "injury required by Art III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing'"[118]. In Bennett v Spear[119], Scalia J, delivering the opinion of the Court, referred to statutory schemes "to rely on private litigation to ensure compliance with the Act" and said that "the obvious purpose of the particular provision in question is to encourage enforcement by so-called 'private attorneys general'". That understanding is consistent with the reasoning of the Second Circuit in Associated Industries v Ickes, where the term "private Attorney Generals" had been coined[120], and with the construction given to s 80 by Bowen CJ in Phelps in the passage set out earlier in these reasons.
However, the effect of the recent United States decisions appears to be that federal laws containing provisions for "citizen suits" will be read down so as to deny constitutional competence to a plaintiff who does not meet the "irreducible constitutional minimum" of standing. This minimum is stated by Scalia J to require[121]:

[127]

This formulation appears to be directed to "standing" in respect of all cases and controversies in federal jurisdiction. It is not said to derive from any established line of authority dealing with the creation by Congress of standing with respect to cases arising under the laws of the United States. Nor is the "irreducible constitutional minimum of standing" avowedly derived from an examination of the intentions of the Framers of Art III. I have sought to demonstrate that such an examination with respect to the state of affairs in Australia in 1900 would not support any analogous formulation with respect to Ch III.
In Lujan, Secretary of the Interior v Defenders of Wildlife[123], Scalia J, delivering the opinion of the Court on this point, supported the decision that the plaintiffs lacked standing on the grounds that the engagement of the courts in the way stipulated by Congress to vindicate the public interest, in the observance by the executive branch of the Constitution of laws made by Congress, would exceed the constitutional role of the third branch of government. Like the Chevron doctrine[124], considered in Corporation of the City of Enfield v Development Assessment Commission[125], Lujan appears to provide in the United States a battleground for competing theories respecting the proper roles of the three branches of government in supervising the regulatory state. In particular, there is the view that because the President is, or is to be seen to be, in charge of the execution of policy by federal agencies, they have, as Professor Sunstein has described this view, "a kind of democratic pedigree, certainly a better one than the courts"[126]. However, the powers of federal agencies may impinge upon activities otherwise within the domain of the States. The basic dispute may be characterised as the fixing of the balance between the three branches of the federal government in the exercise of federal authority over that State domain. More recently, in his dissenting judgment[127] in Federal Election Commission v Akins, Scalia J explained his position as being that the judicial branch of government was "designed not to protect the public at large but to protect individual rights" and that the "primary responsibility" of compelling "Executive compliance with the law" was given by the United States Constitution to the President.
However, in Australia, the executive power specified in s 61 of the Constitution "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". Section 75(v) of the Constitution confirms, if confirmation were needed, that it is a prime function of the judicial branch, when its jurisdiction is properly enlivened, to secure execution of the laws of the Commonwealth according to their tenor and not otherwise. In any event, the observance required by the provisions of the Act here in question is from those actors in trade and commerce to whom s 52 of the Act applies, not the executive branch of government.
The reasoning in the recent United States decisions respecting statute-based "citizen suits" has been both criticised[128] and praised[129] by commentators. Moreover, the case law is not static. The debate may be expected to continue in the light of the 1998 decision of the Supreme Court in Federal Election Commission v Akins. Breyer J, delivering the opinion of the Court, considered the requirement for standing of an "injury in fact". His Honour held that this "injury" was established by the inability of a group of electors to obtain information respecting donors to an organisation which lobbied elected officials and disseminated information about candidates for public office[130]. On the view of the laws advanced by the group of electors, statute obliged the organisation to make this information public. It was decided that Congress had the constitutional power to authorise the vindication of this "informational injury" in the federal courts by declaratory relief[131]. The effect of the holding in Akins appears to be "that Congress by statute can create rights that would not otherwise exist and the alleged violation of those rights is sufficient for standing, even under a broad citizen suit provision and even where the injury is widely shared in society"[132].
The False Claims Act[133], first enacted by Congress in 1863 and since amended, provides for a civil penalty and treble damages in respect of the making of false or fraudulent claims for payment by the United States Government. A civil action may be brought in a United States district court, as a qui tam action, by "a person" in the name of the United States government and this "relator" may receive up to 30 percent of the proceeds or settlement[134]. There is a division of opinion between the Circuits on various aspects of the interpretation and validity of this legislation. In particular, there is a dispute as to whether the qui tam provisions violate Art II of the United States Constitution by usurping the power of the Executive branch to execute its laws. Further, there is a difference of opinion as to whether a qui tam relator suffers the "injury-in-fact" required by Lujan. The authorities are collected in the dissenting judgment of Judge Weinstein in United States v State of Vermont Agency of Natural Resources[135].
Upon the merits of the continuing debate in the United States this Court cannot enter. It is sufficient to say that, in the context of the Australian Constitution and for the reasons given above, the recent United States decisions do not supply the support which the respondent sought to derive from them in demonstrating that ss 80 and 163A cannot be supported by s 76(iii) of the Constitution.

[128]

What is involved in the requirement imposed by ss 80 and 163A that courts exercising jurisdiction under the Act accept the competence of "any person" to institute and prosecute a proceeding for relief under those sections? It may be that this competence is a "power" enjoyed by each member of an innominate and universal class, to the exercise of which by the institution of a legal proceeding under Ch III the respondent is "liable". However that may be, it is unnecessary for there to be a "matter" that there be imposed upon the respondent any obligation or "duty" not to contravene any of those Parts of the Act stipulated in ss 80 and 163A by injuring or threatening to injure the personal, economic or other individual interests or "rights" of that "person" who actually sues for contravention of the Act.
It is not the case that the only members of the class who may institute and prosecute proceedings under ss 80 and 163A are those who complain of such an injury. As Bowen CJ explained in Phelps, the relevant injury is that to the public interest in the observance of the requirements of the Act. The competence of the applicant and the liability of the respondent to adjudication of the alleged contravention of the Act are manifested at different levels in the process of the adjudication of the "matter" arising under the Act.
Moreover, Ch III does not impose a universal requirement for adjudication under it of mutual or reciprocal relations between right and duty, power and liability, each the correlative of the other. The notion of "standing" is an implicit or explicit element in the term "matter" throughout Ch III, identifying the sufficiency of the connection between the moving party and the subject-matter of the litigation. However, it would be an error to attribute to this notion a fixed and constitutionally mandated content across the spectrum of Ch III. In particular, for Parliament to provide a remedy for enforcement of its laws by federal courts and courts exercising federal jurisdiction which, in effect, removes the need for the Attorney-General's fiat, is not to go beyond what may be a matter arising under a law made by the Parliament for the purposes of s 76(ii).
In such a case there is an immediate liability to be established against the respondent. The declaration under s 163A is a means to that end. Further, an injunction sought under s 80 would enforce that liability or go to rectify the consequences of failure to observe the law.
Reference was made in argument to the decision in 1921 in In re Judiciary and Navigation Acts[136]. In the joint judgment, the relevant reasoning appears in the following passage[137]:

[132]

The facts and course of proceedings[143] and the relevant legislation[144] are set out in the reasons of the other members of the Court. It would be pointless to repeat them. Truth About Motorways Pty Limited (the applicant) commenced proceedings in the Federal Court of Australia contending that representations contained in a prospectus issued by Macquarie Infrastructure Investment Management Limited (the respondent) contravened the Trade Practices Act 1974 (Cth) ("the Act"), ss 52, 53(aa) and 53(c)[145]. The respondent filed a defence pleading that the applicant had no standing to bring the proceedings. So far as ss 80 and 163A of the Act purported to confer standing on the applicant, the respondent asserted that those provisions were constitutionally invalid. The applicant denied that the impugned provisions of the Act contravened the Constitution. It thus tendered, in a Case Stated, the principal constitutional question now for decision. It was agreed during the hearing that, if the principal question were decided in favour of the applicant, it would be unnecessary for the Court to resolve the other questions.
Because I am of the view that the respondent fails on the principal question, it is undesirable to embark upon the resolution of other issues, the answers to which would be of no more than theoretical interest. I would hold that the applicant had standing to bring the proceedings in the Federal Court pursuant to ss 80 and 163A of the Act[146]. Those provisions are constitutionally valid. They were otherwise sustained by heads of legislative power conceded to be sufficient[147]. They are not cut down or restricted by any limitation on the power of the Parliament to enact laws, implied from the requirement that the jurisdiction of a federal court may only be conferred in respect of a "matter"[148]. Nor does any implication derived from Ch III require a contrary conclusion.
There are obvious defects in the form of the order sought by the applicant for a mandatory injunction directed to the respondent. However, such defects are in my view matters for the Federal Court. If it is established that that Court has jurisdiction and that there is no constitutional impediment to its exercise of such jurisdiction, such questions can be left to that Court, at least in the first instance. The declaration sought is subject to a similar comment. I do not believe that this Court, in these proceedings, should condescend to such questions unless they were essential to the constitutional question that is before us.

[134]

For some years the Australian Law Reform Commission has been considering reform of the law of standing in federal jurisdiction[149]. In the course of its examination of the subject, the Commission has reviewed the standing provisions contained in Australia's federal legislation[150]. Its analysis demonstrates that much federal legislation reflects the general rule of the common law (to which, however, there are a number of exceptions). This rule states that a party, invoking the jurisdiction of a court in respect to an alleged interference with a public right, must show either that some private right of that party has been interfered with at the same time, or that such party has suffered "special damage peculiar to himself"[151]. Thus, it is common in federal legislation to require that the party invoking the jurisdiction of a court must show that it is "aggrieved" by the conduct complained of[152].
Sometimes the legislation adopts another formulation, affording standing to a person who, by name or description necessarily has a special or personal interest[153]. Many federal statutes reflect the special standing which was accorded by English law to the Attorney-General to initiate or authorise court proceedings, in effect for the Crown, so that right might be done according to law[154]. Particularly in recent times, numerous statutory provisions have been enacted by which standing is accorded to other Ministers, statutory agencies or office-holders[155]. Sometimes standing is conferred on a Minister as an alternate to a person or body with a specified interest[156]. Increasingly in recent years, federal legislation has purported to expand standing rights so as to permit proceedings to be brought by any "interested person"[157] or "person affected"[158]. In many federal statutes provision has been made for a self-defining class of persons, usually described as a "claimant" or "complainant", to bring proceedings for some benefit under federal law and to have standing by virtue of such claim[159].
Finally, there is legislation of the kind attacked in this case. Statutes, in some instances, confer rights on "a person" or "any person" to seek judicial remedies without the expression of a statutory requirement for a specific grievance, interest or effect[160]. Sometimes, as in s 163A(1) of the Act under consideration in these proceedings, the jurisdiction to provide relief is expressly accorded in the context of the existence of a "matter". Such provisions necessarily incorporate any requirements of standing that are inherent in that constitutional notion. More commonly, the statutory provision permitting "a person" or "any person" to bring proceedings exists in conjunction with a right conferred on a public or private body which is also authorised to initiate a claim for judicial relief[161]. The provisions of s 80(1) of the Act are of this kind. They permit the Australian Competition and Consumer Commission ("the Commission") "or any other person" to seek an injunction. Most commonly, the provisions confer standing on a Minister but provide that, alternatively or additionally, "any other person" may seek the relief enacted as relevant to the case[162].

[135]

The foregoing review of federal legislation is by no means exhaustive. However, it demonstrates three points. First, the variety of standing provisions which exist under federal legislation respond to the will of the Parliament at the time of the identified enactment as to the appropriate degree of particularity and specificity (if any) of the interest that is established as a pre-condition to an entitlement to initiate a claim for remedies under the Act.
Secondly, the examples illustrate, in a general way, a trend in federal legislation away from a universal requirement of a special personal interest or individual grievance to authorise the invocation of judicial relief. Whilst provisions to that effect have been maintained in many instances, in others, a broader standing right has been adopted by the Parliament as considered apt to the particular case. In this respect, the Parliament has simply reflected a trend also noticeable in common law decisions under which the formulation of the prerequisites to standing have been relaxed, in part at least[163]. As is so often the case, statute and common law march in step.
Thirdly, the legislation illustrates the importance for federal legislation of the point argued in this case. If that point were to succeed, it would have a significance far beyond ss 80 and 163A of the Act under special scrutiny. Plainly, it would have consequences for the expanding number of federal statutory provisions in which standing is accorded to "any person". It could possibly have effect beyond that class on other statutory categories which do not meet the suggested prerequisites of the notion of standing at common law said to be imported by the use in Ch III of the word "matter".
To impose upon the expanding categories of standing under federal laws the narrower conception of standing which generally prevailed in English law when the Constitution came into force, would involve a significant disruption and a substantial inhibition upon the power of the Parliament to enlarge or contract standing as, in the particular case, it considered appropriate. This is not a reason for refusing relief to the respondent. Constitutional decisions sometimes have inconvenient and unwelcome outcomes[164]. But the inconvenience and inflexibility inherent in the respondent's view of the requirements of the word "matter" and of the implications of Ch III of the Constitution necessitate very close examination of the argument in order to ascertain whether past authority or current understandings of the language and structure of the Constitution demand such a disruptive result.

[136]

Before embarking upon a consideration of the constitutional validity of a law, it is usually appropriate, if not necessary, to consider the meaning and application of the law. If, properly construed, the suggested constitutional defect is shown to be illusory, the constitutional problem does not arise[165].
The respondent did not suggest that the words "any other person" in s 80(1) or "a person" in s 163A(1) should be given a limited construction. Indeed, that was contrary to its constitutional argument by which it sought to strike down, or narrow the application of, the two sub-sections. In Phelps v Western Mining Corporation Ltd[166] the Full Court of the Federal Court held that the words "any other person" in s 80(1) of the Act were to be given an unlimited ambit. The respondent pointed out that this holding was arrived at in a context in which that Court was concerned only with the construction of the section and not with its constitutional validity. In another early case in that Court[167], it was held that a person claiming relief under s 80 did not need to show that a proprietary interest was affected or that any special damage, or any damage at all, was suffered. A similar view was taken to the ambit of the words "any other person" when s 80(1) came before this Court for the first time[168]. In that case, this Court confirmed that the words were not limited, by the context or otherwise, to consumers. They would extend to include a competitor of the party against whom relief was sought. In my opinion these cases were correctly decided. Nothing in the language or context of s 80(1) warrants a reading down of the scope of the phrase used. This view is further reinforced by a consideration of s 80(1) in the context of the other federal legislation considered above. The expression is deliberately open-ended. Subject to the Constitution, no attempt should be made to import unexpressed restrictions.
So far as s 163A of the Act is concerned, the reference to "a person" appears in a context of the institution of proceedings "in the Court"[169]. The section is, in terms, limited to a proceeding "in relation to a matter arising under this Act". The word "matter" in that context obviously carries the same meaning as that word bears when appearing in the Constitution[170]. In the course of decisions in the Federal Court, a difference of opinion has arisen as to the scope of s 163A. In some decisions, it has been held that the section is concerned with the meaning and operation of the Act and not with whether particular conduct has breached the Act[171]. In others, it has been held that the section extends to the issue of whether conduct has contravened, or would contravene, provisions of the Act[172]. It is unnecessary for the present proceedings to resolve that difference. In either case, s 163A purports to confer authority on the applicant as a "person" to invoke the jurisdiction of the Federal Court to secure a declaration in respect of alleged contraventions of the Act for which, it is conceded, it would not enjoy standing sufficient at common law.
The fact that, because of the reference to the necessity of a "matter", it would be possible to read s 163A down in its operation should that course be constitutionally required, does not alter the anterior question about the ambit of the section. It is deliberately cast in the widest of terms. There is no acceptable way of confining or narrowing the purported conferral of standing on "a person", to institute proceedings for a declaration of the kind sought by the applicant. This conclusion is also strengthened when that sub-section is viewed in the context of the varied standing provisions of federal legislation that I have described. By contrast with other expressions in the Commonwealth's statute book, it must be accepted that the Parliament deliberately chose here a wide standing provision. By inference, it did so, both in ss 80 and 163A of the Act for the purpose of furthering the achievement of the public policy which the Act is designed to implement[173]. It is a public policy larger than the protection of particular consumers. Relevantly, it is one aimed at promoting a culture of honesty in the representations made by trading corporations and the elimination of misleading and deceptive conduct from their dealings.
Accordingly, the respondent's submissions about the point of construction should be accepted. Properly understood, the language of ss 80(1) and 163A(1) of the Act purports to confer standing on any person invoking the jurisdiction of the Federal Court for a specified contravention of the Act or in relation to the validity of any act or thing done under the Act. It is this that the respondent asserts exceeds the Parliament's authority. The respondent's constitutional objections must therefore be addressed.
The respondent accepted that no authority of this Court established, at least as a binding rule, the proposition which it advocated. However, it drew attention to observations by a number of members of this Court in disposing of related questions[174]. It also called to notice opinions expressed in the Full Court of the Federal Court[175]. To advance its argument, the respondent addressed its submissions to two considerations: (1) the inferences to be drawn from the decisional authority of this Court on the meaning of "matter"; and (2) the support to be derived from recent decisions of the Supreme Court of the United States of America in elucidating the meaning of Art III of the United States Constitution. It was suggested that that Article was indistinguishable from, or analogous to, Ch III of the Australian Constitution. Each of these arguments fail. There is no inconsistency between ss 80(1) and 163A(1) of the Act on the one hand, and Ch III of the Constitution on the other. Furthermore, the United States authorities are distinguishable or should not be followed.

[137]

The respondent's primary contentions went thus. Chapter III is an exhaustive statement of the original jurisdiction of this Court and of other federal courts ("federal courts") created by the Parliament[176]. Accordingly, notwithstanding the apparently ample terms in which the Parliament is empowered to make laws, eg by s 51 of the Constitution, such power is, by express language[177] and by the structure of the Constitution[178], subject both to express and implied restrictions on the conferral of original jurisdiction on this Court and other federal courts. Those restrictions are stated or implicit in the provisions of Ch III[179].
Two express provisions within Ch III, it was submitted, gave rise to the limitation on the lawmaking power of the Parliament critical for the present proceedings. The first were the words "matter" and "matters" appearing in several of the sections of the Chapter[180]. The second was the expression "judicial power" in s 71 of the Constitution. In addition to the meaning of, and inferences to be derived from, these words, the respondent relied on the structure of the Constitution by which the Judicature is created in which is vested the "judicial power of the Commonwealth". It is a branch of government separate from the other branches which exercise the legislative power and executive power of the Commonwealth. This separation was said to be fundamental to the interpretation of Ch III since the earliest days of the Commonwealth[181] and up to the present time[182].
The respondent therefore argued that a consistent extension of the established authority of this Court required acceptance of the proposition that the pre-existence of standing (in the sense of a special or personal interest in the subject matter of a controversy between parties) was essential to (1) the existence of a "matter"; (2) the invocation of the "judicial power of the Commonwealth" in this Court or other federal courts; and (3) the engagement of the Judicature as the independent branch of government in functions apt to it, and to it alone.
There is no explicit reference in the Constitution to the standing of the party initiating proceedings. In a well known passage in In re Judiciary and Navigation Acts the majority of this Court expressed the opinion that "there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court … [the Parliament] cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law"[183]. The respondent submitted that the decision of the Court in that case had emphasised the requirement of a "justiciable controversy". This, in turn, could not arise unless the person invoking the jurisdiction of federal courts had a sufficient interest to bring the action[184]. Although the notions of "standing" and of "matter" are distinct, the respondent pointed to several cases in which the concepts had been entwined in an objection by one party to the attempt of another to invoke the judicial power and to assert a "matter" for determination by the Judicature[185].
One of the hallmarks of the exercise of judicial power is the existence of a "justiciable controversy". This together with the requirement of a "matter", as elaborated in the decisions of this Court, made it insufficient, so the respondent urged, that the parties disagreed about a subject, even one having its origin in the law[186]. Not all disagreements were apt to invoke the jurisdiction of a federal court, still less to secure orders requiring the enforcement of the law[187]. Nor was it enough that a party has commenced proceedings in a federal court[188]. That fact might establish that a "controversy" in a broad sense of that word existed. But it did not establish that the anterior requirements of a "matter" or of a "justiciable controversy" existed which alone could authorise the invocation of the judicial power in a federal court that would be consonant with the court's functions as part of the Judicature.
It was by this reasoning that the respondent attempted to lead this Court to a conclusion that, inherent in the words used, the structure and the purposes of Ch III, was the requirement of standing on the part of the party purporting to invoke federal jurisdiction. That standing, in the sense of having some special or personal interest, was implicit in the words, structure and purposes of Ch III. It was thus anterior to any purported attempt by the Parliament to confer broader standing rights on persons who would otherwise lack the constitutional interest necessary for the existence of a "matter", the invocation of "judicial power" and the engagement of the jurisdiction of a federal court.
The necessity of a special or personal interest was required (so it was put) out of the wisdom and prudence of our legal system. Such an interest was necessary, according to the respondent (1) to ensure the refinement and proper contest of an issue in the mode of trial which the common law followed; (2) to confine the coercion of the courts over other people, inherent in the exercise of judicial power, to cases that can be justified on a legitimate basis[189]; (3) to avoid the diversion of the courts into the resolution of theoretical or academic rather than real and genuine legal disputes; (4) to prevent the misuse or unnecessary deployment of the publicly funded courts into disputes having no, or low, priority in calls on their resources; and (5) to discourage "busy-bodies" who might otherwise seek court orders when nobody with the requisite interest (private or public) had bothered to do so.
The respondent submitted that the present was a case which well illustrated the need to adhere to a classical standing requirement and to hold it to be inherent in Australia's constitutional arrangements. It suggested that the applicant was no more than a corporate "busy-body". It had no rights, special to itself, which it was seeking to vindicate in the Federal Court. The respondent accepted that the Commission, named in s 80(1), had standing under the Act. To that extent, s 80(1) was a valid law on the footing that the conferral of jurisdiction to grant an injunction at the suit of the Commission "would arise at least by analogy with the traditional role fulfilled by the Attorney-General, as … the body entrusted by the executive government to enforce this part of the public law of the Commonwealth"[190]. But the Parliament had no power to confer that right on "any other person". Section 80(1) was, to the extent of the offending phrase, constitutionally invalid. Likewise, s 163A(1) would be invalid unless read down because of the presence of the reference to a "matter" contained within it. As so read down, it would have no application to the applicant. The attempt by the applicant to invoke the jurisdiction of the Federal Court was therefore invalid. Like "busy-bodies" in the past, the applicant should be sent on its way. The proceedings should be terminated, certainly so far as the Federal Court and the invocation of federal laws were concerned.

[140]

The prohibition expressed was that of making "a declaration of the law divorced from any attempt to administer that law"[194]. To judge whether that prohibition applies in a particular case, it is necessary to find the content of the law in question and to decide whether it is otherwise within the lawmaking power of the Parliament and tenders for resolution the declaration and enforcement of rights, duties or liabilities "as they stand on present or past facts and under laws supposed already to exist"[195].
When, in the present case, the law in question is examined, it prescribes a legal entitlement that may be enforced by "any other person" or "a person". It does so in a way agreed to be otherwise within the lawmaking powers of the Parliament. To that entitlement are attached various remedies as contained in the Act some of which the applicant now seeks from the Federal Court. Relevantly, they involve the provision of an injunction and the making of a declaration. Each of these remedies is judicial in character. Each is indisputably a proper function of courts, as much at the time of federation as today. Therefore, there is no attempt by the Parliament in either of the impugned sections, to authorise or require the Federal Court to grant remedies divorced from a "justiciable controversy" (ie from the determination of "some immediate right, duty or liability" to be established by the decision of the Court)[196]. In providing the remedies permitted under the section, the Federal Court is not determining "abstract questions of law without the right or duty of any body or person being involved"[197]. Nor is it impermissibly giving an advisory opinion[198]. Still less is it affording remedies divorced from any attempt to apply the law to facts and hence to "administer the law"[199]. To the contrary, all that the Federal Court is asked to do is to apply the law, as expressed by the Parliament, to the facts as found.
Deliberately broad approach: The word "matter" within Ch III of the Constitution is, in any case, an ordinary word of common usage in the legal context[200]. It is undesirable that the word should be subjected to excessive refinement or submitted to inappropriate elaboration leading to unnecessary constitutional rigidity[201]. From the start, it was intended to use a word of wider meaning than the words "cases and controversies" appearing in the United States Constitution. That this is so, was made clear by the Chairman of the Convention Judiciary Committee at the Melbourne Convention of 1898. He said: "[w]e want the very widest word we can procure in order to embrace everything which can possibly arise within the ambit of what are comprised under the sub-section … it would be of no use to adopt the word 'case' or 'controversy'"[202]. To like effect was the contemporary exposition by Quick and Garran[203]. Numerous judicial statements in this Court since that time have reinforced this approach[204].
There are reasons of principle for maintaining this interpretation remembering that the word "matter" and the phrase "judicial power", as well as the conception of the functions of the "federal courts" within the Judicature appear in a Constitution extremely difficult to amend formally and intended to endure indefinitely[205]. Given that rational reasons may sustain different standing provisions for the enforcement of legislation in different circumstances, it would require much more of the word "matter" (or of the phrase "judicial power" or of the inferences from the nature of "federal courts" in the Judicature) than can reasonably be derived, to suggest that it is necessarily incompatible with the terms of the Constitution or the proper functions of the Judicature which the Constitution establishes or recognises.
Historically broad standing rights: It is also incompatible with legal history, both in Australia and England, to suggest that a universal and rigid common law rule of standing, necessitating an interest "special" or personal to a party, is inherent in the performance by courts of functions proper only to them. Yet that is the logic of the respondent's argument that standing in the general common law acceptation of that term is so deeply embedded in the notions of the Judicature in 1900, that it must be taken to be inherent in the concept of "matter" in Ch III of the Constitution (and in the phrase "judicial power" as well as the functions proper to "federal courts" created by or under the Constitution)[206]. Even assuming that this is an appropriate approach to constitutional elaboration, many historical references demonstrate how untenable the proposition is.
From the earliest times of English legal history, accusations initiating criminal proceedings could be brought, at common law, by private individuals[207]. Although the position altered over time, the private individual enjoyed large rights to set the criminal law in motion in the courts, without any necessity to establish a special or personal interest such as would satisfy a modern common law test of standing[208]. In the case of crimes triable on indictment, the Crown could intervene to take over the prosecution or to stay it by entering a nolle prosequi[209]. In England and in Australia, many proceedings by criminal information came to require the leave of a court before a private individual could prosecute them[210]. In such a legal context, it is unthinkable that the choice of the word "matter" (or of the phrase "judicial power" or the concept of "federal courts" in the Judicature there provided) imports a rigid universal rule necessitating that every "matter" or invocation of "judicial power" before such "courts" required, as a pre-condition to validity, a special or personal interest in the subject matter of the litigation. It would be astonishing if the supposed universal rule were now to be imposed. It would be even more surprising if this were done on such a flimsy basis, in the face of the declarations of the drafters of Ch III as to their contrary objective, and in the light of the contrary developments in the law of standing up to the present time.
In civil law there has been no such universal rule. The Attorney-General long enjoyed standing to seek an injunction for breach of a statute. At least he did so in the absence of express language of the statute excluding such a remedy. And wherever the Attorney-General could seek such relief, he could grant a fiat to any person to bring proceedings in his name at the relation of the grantee of the fiat. Such relator did not need any personal interest in the controversy, save that of being a member of the public[211]. This is the law on this subject, both in England[212] and in Australia[213]. The established right of the Attorney-General denies the suggestion that there is something essential about the common law requirement for standing so as to make it a universal prerequisite to the application of Ch III.
The willingness of the respondent to concede that the Commission's statutory standing was constitutionally valid because it had inherited, by analogy, the powers of the Attorney-General to defend the public's interest in the enforcement of a law of general application involves a proposition as unhistorical as it is unconvincing. It pays no regard to the special historical functions of the Attorney-General. And it accepts for constitutional purposes, that the word "matter", the phrase "judicial power" and the concept of "federal courts" can change with time, different legislative needs and altered statutory provisions. If such a change is permissible to acknowledge the valid conferral of standing on a body such as the Commission, there is no logical ground for contending that the Constitution forbids a similar expansion of standing rights, in particular areas and for particular purposes, by which the Parliament might permit "any person" or "a person" to initiate court proceedings, in effect, on behalf of the public. It is unlikely that the Constitution implicitly embalmed as immutable, a rule by which only the Attorney-General or other specified Executive functionary holds the keys that unlock the doors of the independent federal courts. This is not the way in which Australian statute law has developed; and that for good reason.
In addition to the foregoing, legal history is replete with examples of public law remedies which have permitted persons with no "special interest to protect" to invoke the jurisdiction of the courts. Thus it was in England in relation to the remedy of prohibition[214]. So it has been in respect of that remedy in Australian courts throughout the past century[215]. Although it has been suggested that a stranger could only obtain the remedy of prohibition at the discretion of a court (ex debito justitiae) it has never been doubted that, in a proper case, the remedy is available to a stranger, ie a person without standing in the sense of a special or personal interest. Before the Constitution was adopted, the same was true in England in respect of certiorari[216]. It has likewise been held to be the law in Australia[217]. The same may also be said of habeas corpus which was available at the suit of a stranger[218]. In the circumstances of this legal history (which is by no means exhaustive) and of Australian judicial practice to the present time, it would be a serious error to suggest that a universal rule of standing, expressed in terms of the "special" or "personal" interests of a party is inherent in, or essential to, the existence of a "matter", to the invocation of "judicial power" or to the jurisdiction of "federal courts" as provided in the Constitution.
Benefits of flexibility: Whilst it is correct to say that, outside the areas reviewed, a general requirement of the common law expressed in terms of "special interest" has been adopted by our law, this too has altered somewhat in recent times in recognition of what may constitute such a "special interest"[219]. The number, variety and importance of the exceptions are such as to deny an attempt to stamp on the Constitution such a universal characterisation of justiciable proceedings. Yet, if the stamp of such a universal requirement cannot be imposed, this strikes at the heart of the respondent's suggestion that the language, purpose and structure of Ch III of the Constitution implicitly forbid the enactment by the Parliament of the broad standing rights adopted in ss 80(1) and 163A(1) of the Act. If the implied prohibition is not sustained, these provisions are left fully supported by legislative power conferred on the Parliament by s 51 of the Constitution. This is hardly a surprising conclusion. Not only does much federal legislation demonstrate the existence of variable preconditions for standing. Common sense, and a reflection on the differing kinds of public rights evidenced in the legislation reviewed (including the Act) indicate why, within sensible constitutional arrangements, such variable standards will often be justified.
To take the present sections as an illustration, the explanation for the provisions of ss 80(1) and 163A(1) of the Act is not difficult to find. Bodies such as the Commission might, on occasion, have insufficient funds to pursue contraventions of the Act, even those which, objectively, are serious. As well, public bodies sometimes come too readily to reflect the perspectives of the Executive Government. At a time when so many other activities, formerly performed by Ministers or public authorities are being "privatised" or "outsourced", it may be more efficient to leave it to "persons" other than a public body to seek relief in respect of designated contraventions of the Act. In ss 80(1) and 163A(1) of the Act, the Parliament has identified those contraventions of the Act in respect of which a "person" of the community at large may invoke the jurisdiction of the Federal Court and secure the remedies (relevantly) of injunction and declaration. By inference, the conclusion has been reached that it is appropriate, in such cases, to have the law invoked by a private individual. In the past, in England, this was done long ago by the Attorney-General. There is no valid reason why in Australia today, under its Constitution, it should not be done by a "person" who has the will and the means to do so.
Busy-bodies: To the complaint about "busy-bodies", there are many answers. The obligations to find legal costs including, where appropriate, security for costs, and to submit to orders as to costs of failed proceedings represent substantial hurdles in the path of meritless proceedings[220]. In any case, the remedies provided under the legislation are not at large. They are afforded by reference to established principles[221]. Courts retain significant powers to bring obviously meritless claims to a speedy conclusion or to impose strict conditions on their continuance[222].

[141]

To reinforce its arguments, the respondent drew attention to a line of recent authority in United States courts which, it claimed, afforded guidance to the approach which this Court should take. These decisions, in a federal system which was relevantly the model for our own, provide (so it was argued) analogies to fill the gaps in the elaboration of Ch III of the Australian Constitution.
The language of Ch III is different from that of Art III of the United States Constitution. In the latter the words "Cases" and "Controversies" are used. For the reasons stated, those words were rejected by the drafters of the Australian Constitution in favour of the broader word "matter"[223]. Further, the Judicature envisaged by Ch III is differently organised. From the start, the respective roles of the Federal Supreme Courts and of federal courts generally have been different in each country. Nevertheless, the separation of the judicial power is fundamental to both Constitutions[224]. The limitations upon the subjects proper to federal jurisdiction have, from early days of the Australian Commonwealth followed similar but not identical lines[225]. Basic to each Constitution is the acceptance that the sole function of federal courts is the determination of "justiciable controversies" or "legal controversies"[226]. Such courts are not places which can be turned into "judicial versions of college debating forums"[227], nor a vehicle for the vindication of the "value interests of concerned bystanders"[228]. Nor may they give advisory opinions or answer questions divorced from concrete cases[229] which involve an "immediate right, duty or liability" ascertained by reference to pre-existing law[230].
A study of recent decisions of the Supreme Court of the United States certainly bears out the respondent's proposition that that Court has established a general rule that, to invoke the jurisdiction of a federal court, one of the elements a party must show is the existence of standing in the sense of an "injury in fact". It must demonstrate an invasion of a legally protected interest of the party in question which is "concrete and particularised" and "actual or imminent, not 'conjectural' or 'hypothetical'"[231]. The foundation for this reasoning is not expressed solely in terms of the notion of "cases" or "controversies" but depends on notions of the separation of the federal judicial power from executive and legislative power. It also draws upon a reflection about the activities considered constitutionally appropriate to the separate federal courts in that system of government. It rests on considerations about the conduct of such courts in the ways by which their judicial orders are likely to impinge upon the autonomy of persons who are made subject to them[232].
Accordingly, at the heart of the idea accepted on this issue in the United States is the notion that courts should only be involved in the resolution of "cases" and "controversies" between parties having a requisite interest. They should leave broader concerns of social policy and law enforcement to the actions of the legislature and the executive. The respondent submitted that, in our system of government, similar considerations apply making equally applicable the remarks of Scalia J in Steel Co v Citizens for a Better Environment[233]:

[144]

Because of the parallels between Ch III of the Australian Constitution and Art III of the United States Constitution, it is certainly appropriate to consider developments in the United States concerning the latter. However, for a number of reasons I am not persuaded that the United States decisions require this Court to adopt a conclusion contrary to that which the foregoing analysis of the law applicable in Australia would otherwise suggest.
First, the language of Art III, s 2 confines the "judicial Power" of the United States to specified "Cases" and "Controversies". The word "matter" in Ch III has a wider meaning and this is deliberate. The way in which this differentiation has occasioned different outcomes has been noted in several decisions of this Court[235]. The integrated features of the federal and State judiciaries in Australia made it far less essential in this country, than in the United States, to confine federal causes narrowly. When, therefore, the Parliament is empowered by the Australian Constitution[236] to make laws conferring original jurisdiction on a federal court "in any matter arising under any laws made by the Parliament" that power, from its language and purpose, has an extremely wide operation. There is no room for an implication confining the "matters arising" upon which laws may be made, to those in which a particular requirement of standing can be proved in the limited sense of a "special" or "personal interest".
Secondly, the foundation of much of the reasoning of the majority in the decision principally relied upon by the respondent, Lujan v Defenders of Wildlife[237], rests upon the separation of powers between the legislature, executive and the judiciary in the United States. This model of governance has no application to Australia. Ministers of the Executive Government in Australia must, within a short interval, sit in the Parliament[238]. To that extent, risks that may arise in the United States of the enactment of laws by Congress inimical to the Executive Government that must be measured in federal courts against the standard of the Constitution, can rarely, if ever, arise in Australia. This point is made good by reference to Lujan. There the Supreme Court of the United States explained a fundamental objection to the legislation considered in that case[239]:

[146]

Thirdly, and in any case, the decision and reasoning of the majority in Lujan (and like cases) has been the subject of strongly expressed dissent within the Supreme Court of the United States[242] and scholarly criticism[243]. In that criticism it is argued that the current doctrine constitutes a departure from earlier holdings and a move towards a direction strongly disputed when it was first mooted[244]. Within the tests applicable to proceedings in federal courts in Australia[245] there is no real risk of a "matter" which would warrant the description of a mere vindication of the "value interests of concerned bystanders" or "college debating forums"[246]. Certainly, those epithets could not be applied to proceedings brought by a "person" under ss 80(1) or 163A(1) of the Act, to vindicate the public interest in the standards of corporate conduct required by that Act. Clearly, they could not be applied to the present applicant's proceedings. Far from being alien to the "notions of democratic legitimacy"[247] to uphold such legislative provisions, doing so sustains the entitlement of the Parliament to choose the particular standing right appropriate to the enforcement of specified laws and the mixture of public and private enforcement which it deems to be necessary and likely to be effective. For these reasons the United States authorities, relied on by the respondent, do not suggest a need to reconsider the conclusion to which the law applicable in Australia would otherwise take this Court in the elaboration of the Australian Constitution.
Fourthly, a most significant difference between the law in Australia and in the United States affecting the Judicature of each country concerns the orders as to costs, including security for costs, that are commonly made. Such orders remain an important inhibition and sanction available to federal courts in the Australian Judicature which is not available to the same degree in federal courts in the United States. This practical difference affects the approach to questions such as those argued in this case.

[147]

The result of this analysis is that the respondent's attack on the validity of ss 80 and 163A of the Act fails. So far as those sections confer standing on a "person", they are valid laws. No negative implication from the language, structure or purpose of Ch III of the Constitution requires a contrary conclusion. United States decisions do not suggest the need for a different result.
My opinion does not hold that in every case the standing of a party invoking the jurisdiction of this Court or of other "federal courts" is irrelevant for constitutional purposes. This case has been concerned, and concerned only, with statutory provisions governing standing to enforce a law made by the Parliament with the ostensible purpose of achieving large social and economic purposes. Because most federal laws have national objectives, it is likely that similar results would flow in other cases where a federal statute has empowered "any person" or "a person" to vindicate its provisions in a federal court. But it is unnecessary in the present case to contemplate an extreme instance of legislation having a limited and particular operation which contained a standing provision that would not yield a concrete instance affecting "some immediate right, duty or liability" of the litigant that would be "established by the determination of the Court"[248].
Such a case is much more likely to arise in circumstances where the party invoking the jurisdiction of a federal court cannot point to any statutory provision affording that party standing to enforce federal law. It is in such a case that the inability of the party to show standing, in the sense of some "special interest" or personal stake in the outcome of the proceedings, may constitute an indication that the cause propounded is not of a kind that may be determined by a federal court. It may indicate that it is not a "matter"; that it does not constitute an exercise of the "judicial power"; that it is inappropriate of its character to the functions proper to "federal courts" as contemplated by Ch III of the Constitution.
It is cases of the last-mentioned kind in which it could be said that "[q]uestions of standing cannot be divorced from the notion of a 'matter'[249]." In such cases, it is likely that standing will be one of several indications that might lead a court to a conclusion that there is no "matter". In default of a statutory standing right conferred by the Parliament, the inability of the party to demonstrate standing according to general principles may then contribute to a conclusion that that party is unable to show an "immediate right, duty or liability" of others, or is seeking "a declaration of the law divorced from [an] attempt to administer that law"[250]. It is unnecessary, and undesirable, in this case, which concerns an express statutory provision conferring standing rights, to explore the relevance of that notion to cases where no such statutory provision exists[251].
Nor is it necessary in these proceedings to consider the case where a bare declaration is sought as to a past breach of the Act which has, in the particular case, no relevance to the present rights and obligations of the parties. In such circumstances it might be appropriate or necessary to refuse relief. Whilst recording this point, it is undesirable to develop it as it would take this Court beyond the question asked in the Case Stated and beyond the matters so far litigated in the Federal Court. That is where, jurisdiction being established, such an issue falls to be decided in the first instance.

[148]

I agree in the orders proposed by Gleeson CJ and McHugh J.
HAYNE J. The circumstances in which this proceeding comes before the Court are set out in the reasons of other members of the Court. I do not repeat them. I agree that the first question in the Case Stated for the consideration of the Full Court should be answered "No". The other questions need not be answered. The respondent should pay the costs of the Case Stated in this Court.
The respondent's contention, that there is no "matter" arising under a law made by the Parliament, unless the applicant in the proceeding in the Federal Court of Australia for orders pursuant to ss 80 and 163A of the Trade Practices Act 1974 (Cth) has a "special interest" in the subject matter of the claim, should be rejected. It is a contention which seeks to read "matter" (when used in Ch III of the Constitution) as requiring that the parties to litigation have correlative (in the sense of mutual or reciprocal) interests in rights and duties that are in issue in the litigation. That is, the contention is that the "immediate right, duty or liability to be established by the determination of the Court"[252] must be a right, duty or liability in which the opposing parties have correlative interests. In many kinds of criminal proceedings, the prosecutor and the defendant do not have correlative interests in the right, duty or liability which the proceeding seeks to vindicate. That is reason enough to deny the validity of any universal proposition that reciprocity of right, duty or obligation is an essential element of a "matter" as that term is used in Ch III.
And no satisfactory basis was given for confining the application of the proposition for which the respondent contends to some kinds of proceeding. To what kinds of proceeding would the alleged principle apply? If criminal proceedings are put to one side, it is clear that the alleged principle does not apply in some kinds of civil proceeding. As the reasons of other members of the Court show, in some claims for prerogative relief there is no reciprocity of rights and duties between the parties. Yet s 75(v) shows that claims for prerogative relief fall within the constitutional concept of "matter".
In Ch III, the word "matter" is used to describe a very wide variety of controversies. In the present case, the applicant contends (and the respondent denies) that the respondent has acted in breach of a statutory norm of conduct (s 52 of the Trade Practices Act). The absence of reciprocity of right and duty between these parties does not take this controversy outside the constitutional concept of "matter".
CALLINAN J. The respondent is the manager of two unit trusts (Infrastructure Trust of Australia (I) and (II)) ("the ITA group"). In November 1996 the respondent issued a prospectus and a supplementary prospectus, inviting the public to purchase stapled securities in the ITA group. The prospectus which invited subscriptions for units in trusts stated that one of the four "seed assets" of the ITA group was the "Eastern Distributor", a project for a toll road in Sydney. The prospectus said of this project:

[186]

The respondent's argument starts with the proposition that the Federal Court as a court established under Ch III of the Constitution may exercise only the "judicial power of the Commonwealth"[254], and then only in respect of a "matter"[255]. The respondent contends that there can be no exercise of the "judicial power of the Commonwealth", and no "matter" within the meaning of those words in Ch III of the Constitution unless the party commencing proceedings has a relevant standing to do so. A party will only have such standing, on the respondent's argument, if it has a "special interest" in the proceedings of the kind sufficient to confer standing at common law[256]. Because the applicant concedes that it does not have a "special interest" in the proceedings, the respondent's argument, if accepted, would compel the conclusion that ss 80 and 163A are invalid in so far as they purport to give the applicant standing in these proceedings.
The respondent's contention is that the high water mark of decisions of this Court with respect to the grant of declaratory relief is Ainsworth v Criminal Justice Commission[257], in which it was held that the appellant was entitled to a declaration, notwithstanding that an injunction was not available (as the conduct of which the appellant complained was in all respects complete) and notwithstanding that the appellant had no right to damages. The Court held that a declaration would nonetheless be of utility to the appellant because it would go some way towards dispelling or reducing the harm that the unlawful conduct had done to the appellant. The instant case, the respondent submitted, was not one in which the applicant could advance arguments and point to facts of the kind which led to the decision in Ainsworth.
The respondent referred to the history of relator actions in the United Kingdom. Reliance was placed upon a number of the statements made in the speeches of their Lordships in Gouriet v Union of Post Office Workers[258], and in particular statements made by Lord Wilberforce, in which his Lordship pointed out that the discretionary role of the Attorney-General in deciding whether to lend his or her name to an action for the enforcement of the law in the civil courts was not merely formal, but involved important social and political considerations: to allow a litigant such as the applicant in this case who has in no way been personally adversely affected by the conduct of the respondent to bring proceedings for a declaration, or to compel the respondent to correct or answer for its misconduct, amounts to an unwarranted and unlawful circumvention of legal principle and the sound underlying policy reasons for relator actions. Relevantly, the respondent argued, the Commission established under the Trade Practices Act stood in the shoes of, and had a like role to the AttorneyGeneral in enforcing the Trade Practices Act. Accordingly the principles traditionally applied to attempts by ordinary members of the public to enforce the law in situations in which they had no interest over and above that of any other person, and the discretionary but exclusive right of the AttorneyGeneral to do so, should be applied here, and to the Commission as a statutory alter ego of the Attorney-General.
I point out at this stage that s 80 itself evinces a clear legislative intention that neither the Minister, the Commission nor any other person should in all cases have an exclusive right of enforcement, or the same rights or obligations in making claims for relief pursuant to the section.[259]
Reference was made by the respondent to three cases in this Court: Australian Conservation Foundation v The Commonwealth[260]; Onus v Alcoa of Australia Ltd[261]; and Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd[262], all of which, it was claimed, reinforced the notion that the existence of a special interest was required to support proceedings of the kind brought by the applicant.
Counsel for the respondent also sought to call in aid cases in the United States in which strong majority opinions have been expressed, and which, if they were to be adopted here, would be determinative of the case on the first question in the respondent's favour. Particular reference was made to Lujan v Defenders of Wildlife in which Scalia J in delivering the opinion of the majority in the United States Supreme Court said this of the jurisdiction of federal courts of that country to determine "cases" and "controversies"[263]:

[189]

Right from the time of the decision of this Court in In re Judiciary and Navigation Acts, it has been stressed, the respondent further submitted, that the separation of judicial power from the legislative and executive powers of the Commonwealth has been a fundamental Constitutional doctrine; and that judicial power is only exercisable in respect of a controversy, that is a "matter" correctly so defined; or, as was said in In re Judiciary and Navigation Acts, there must be in existence "some immediate right, duty or liability to be established by the determination of the Court"[268]. It was a key part of the respondent's argument that for the Parliament to seek to invest in a Federal Court jurisdiction to determine the applicant's claim in the absence of standing by reason of a special interest, would be to do what this Court held to be impermissible in R v Kirby; Ex parte Boilermakers' Society of Australia[269], as an attempted investiture of nonjudicial functions in Ch III courts.
The respondent accepted that in advancing the arguments which it did, it was necessary to meet and deal with the express language of ss 52, 53, 163A and in particular s 80(1) of the Trade Practices Act.
Sections 52 and 53 proscribe conduct of the kind of which the applicant here complains, that is, misleading or deceptive conduct in trade or commerce, inter alia, either in, or in connexion with the supply of services.
Sub-section (1) of s 80, however, expressly contemplates that an application may be made by the Commission (established by the Act) or any other person in respect of the conduct as prescribed. Section 163A is concerned with the jurisdiction of the (Federal) Court to make declarations and orders.
Confronted with the express language of these two sections, and in particular s 80(1), the respondent submits that each section is wholly invalid or should be read down to exclude the making of an application by any person other than one who has a special interest or, to put it another way, the equivalent of common law standing to make a claim.
Finally, on this aspect of the case, the respondent argues that there is no relevant justiciable controversy determinable by a Federal Court unless there is some reciprocity between the parties, and that can only exist, if, in effect, there is some relationship of cause and effect between the actions of the respondent and the applicant.
There is no case in this Court in which any argument as far reaching as that advanced by the respondent has been upheld. Nor was the respondent able to point to any statements in this Court which go nearly as far as the arguments advanced. Perhaps the closest any Justice of this Court came to suggesting anything as far reaching as the respondent's propositions was Isaacs J whose language in The State of South Australia v The State of Victoria[270] implicitly suggests a need for some degree of reciprocity between parties in order for there to be in existence a "matter" fit for determination by a Ch III court. His Honour said[271]:

[201]

It is not accurate to say that for all classes of proceedings the law required that the moving party have a real, or actual, or special interest in the outcome. At common law, any person could prosecute for breaches of the criminal law by information unless the relevant statute on its true construction confined prosecutors to particular persons[277]. Also, at common law, any person could obtain leave to file an information relating to the common law crime of conspiracy[278]. The Attorney-General always had standing to seek an injunction for breach of a statute unless the statute in terms excluded the remedy. Before Federation it was well established that a relator need not have any personal interest in the controversy[279], and an absence of a special interest, or of a particular grievance does not preclude a grant of prohibition or certiorari respectively[280]. A stranger may seek habeas corpus[281] and quo warranto may be granted at the suit of either the Attorney-General ex officio, or any other person[282].
If the respondent's submissions were correct, Parliament might not be able to enact a statute codifying those parts of the common law to which I have referred and conferring jurisdiction upon the Federal Court to grant those remedies without infringing Ch III of the Constitution, to say the least, a rather unlikely conclusion.
So far as the cases in the United States are concerned, it is sufficient for present purposes to point out that the word "matter" was chosen as the appropriate expression for Ch III of the Australian Constitution as opposed to either "case" or "controversy" (the United States' choices) because "matter" was an expression which was thought to have, and indeed is clearly capable of having a wider meaning than the words chosen in that country.
In my opinion the respondent's challenge to the legislation must fail. First, even if I were to assume that "matter" is to be confined to a case in which the initiating party has standing to commence the case, there does not seem to be any reason why there may not be a statutory conferral of standing by legislation enacted under an appropriate Commonwealth head of power. The Trade Practices Act is such a statute, and it has conferred, in express terms standing upon any person to seek enforcement or relief under, or with respect to some of its provisions. Secondly, as the examples to which reference has been made show, there have always been some exceptions to any general rule that a litigant must have some special interest to protect or vindicate, in seeking to enforce legislation. Thirdly, according to its ordinary meaning, to the understanding of its meaning by the framers of the Constitution, and its interpretation by Justices of this Court in the cases to which reference has been made, the word "matter" is capable of embracing a case of the kind here in respect of which the Federal legislature, within power, has enacted that any person may bring proceedings under s 80 of the Trade Practices Act.
It is unnecessary therefore to express any view upon competing considerations of mixed law and policy of the kind referred to in Gouriet[283] regarding the desirability or otherwise of the undertaking of a filtering exercise by the Attorney-General, or the risk of the inundation of the courts by a multiplicity of suits by persons who have been described, in other contexts, as busy-bodies or "phantom litigants"[284] or whether law enforcement (conventional civil remedies apart) should be a matter for officious, or other members of the public.
The claims of the applicant are for:

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

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