Standing to sue in public interest environmental litigation: From ACF ν Commonwealth to Tasmanian conservation trust ν minister for resources

Environmental and Planning Law Journal

Volumn 13, Issue 3, 1996, Pages 186-208

  Barker, Michael L ^a  

^a NONE

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EID: 84871534618     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (134)

1. As a result ofthe Prime Minister's 1995 "Justice Statement", funding has been provided by the Commonwealth for the establishment of Environmental Defender's Offices throughout Australia. As to the text, see B J Preston, Environmental Litigation (2nd ed, 1995, first published in 1989).
2. The term "public official" is used here to include the "Crown" and its representatives, Ministers, government agencies and instrumentalities, and other persons purporting to act with executive or prerogative or parliamentary (statutory) authority.
3. The term "written law" is used here, as it is in the Interpretation Act 1984 (WA), to mean all Acts for the time being in force and all subsidiary legislation for the time being in force.
4. These remedies include the writs of certiorari, prohibition and mandamus or, in some jurisdictions, orders in the nature of those prerogative writs, or statutory powers of judicial review.
5. In the Commonwealth jurisdiction, eg, judicial review of the conduct of many public officials is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a court with the power to issue a remedy similar to the prerogative remedies and, in some cases, more extensive remedies.
6. (1995) 85 LGERA 296
7. 127 ALR 580.
8. (1981) 149 CLR 27.
9. The right of a member of the public to prosecute a breach of the criminal or quasi-criminal law is not a primary focus of this article, but is referred to below under "Reform proposals and reforms". Nor does this article focus on the issue whether a court should in its discretion allow relief in the nature of injunction where the conduct impugned is also a criminal offence, as to which see, eg, John Fairfax Publications Pty Ltd v Doe (1995) 130 ALR 488 (NSW, CA).
10. Indeed, federal courts, including the High Court and the Federal Court, under Ch III of the Constitution, may only exercise jurisdiction in relation to "matters". In South Australia v Victoria (1911) 12 CLR 667
11. See Gordon "Certiorari and the problem of locus standi" (1955) 71 LQR483 at 484.
12. R S Tracey, "Certiorari & Prohibition", in L A Stein (ed). Locus Standi (1979), Ch 3, p 69.
13. See, eg. Re Smith; Ex parte Rundle (1991) 5 WAR 295 per Malcolm CJ at 305
14. and M Allars, Introduction to Australian Administrative Law (1990) [6.109],
15. R S Tracey, "Certiorari & Prohibition", in L A Stein (ed). Locus Standi (1979), Ch 3, p 69.
16. (1991)5 WAR 295.
17. (1991)5 WAR 295.
18. [1972] 2 QB 299 at 308-309.
19. (1957) 55 LGR 129.
20. (1991)5 WAR at 306-307.
21. (1990) 2 WAR 422 per Rowland J at 431 and Ipp J at 43437.
22. (1992)8 WAR 64 at 70.
23. (1992)8 WAR 64 at 70.
24. (1981) 149 CLR 27 at 73.
25. (1980) 146CLR493.
26. [1903] 1 Ch 109 at 114.
27. (1980) 146 CLR 493.
28. See J D Heydon, "Injunctions & Declarations", in L A Stein (ed), Locus Standi (1979), Ch 2.
29. L A Stein, "The Theoretical Bases of locus standi", in L A Stein (ed). Locus Standi (1979), Ch 1, p 3.
30. Stein suggests a number of considerations which may go to explain this principle: the need for a "legal personality" to maintain an action; the need for something in the nature of "property rights" to be at issue to justify judicial involvement in proceedings; the historical fetters on prerogative remedies not being available to complete strangers to the subject matter of the litigation; that because judicial review is limited to the legality of administrative actions and not the merits, the range of persons who may seek judicial review should be controlled; that despite the move towards citizen participation in decision making, the courts are not well suited to determining matters of public interest; that judicial resources are scarce and there needs to be some screening process to ensure that courts are not overburdened with judicial review actions.
31. L A Stein, "The Theoretical Bases of locus standi", in L A Stein (ed). Locus Standi (1979), Ch 1, p 3.
32. (1980) 146 CLR 493 at 527.
33. (1980) 146 CLR 493 at 527.
34. (1980) 146 CLR 493 at 527.
35. (1980) 146 CLR 493 at 527.
36. (1980) 146 CLR 493 at 527.
37. (1980) 146 CLR 493 at 527.
38. (1980) 146 CLR 493 at 527.
39. (1981) 149 CLR 27.
40. (1981) 149 CLR 27.
41. (1981) 149 CLR 27.
42. (1981) 149 CLR 27.
43. (1981) 149 CLR 27.
44. (1981) 149 CLR 27.
45. See, Proceedings of Conference, Mason Court and Beyond, Melbourne, 1995 (Federation Press).
46. O W Holmes, The Common Law (edited by Mark De Wolfe-Howe, Little, Brown & Co, 1963, originally published in 1881), p 5.
47. The Law Reform Commission, Report No 27: Standing in Public Interest Litigation (AGPS, Canberra, 1985).
48. [1982] AC 617 at 64.
49. [1981] 1 NZLR216.
50. [1972] 2 QB 299.
51. [1976] I WLR 550 at 559.
52. In England, see Gouriet v Union of Post Office Workers [1978] AC 435; in Australia, see ACF v Commonwealth (1980) 146 CLR 493 and the discussion in
53. John Fairfax Publications Pty Ltd v Doe (1995) 130 ALR 488 at 505-508 per Kirby P.
54. See, eg, M L Barker, "Accountability to the Public: Travelling beyond the Myth" in P Finn (ed). Essays on Law and Government, Volume I, Principles and Values (1995), pp 228-266.
55. P Finn, "A Sovereign People, a Public Trust" in Finn, (1995), pp 9-10.
56. (1980) 146 CLR 493 at 540.
57. (1980) 146 CLR 493 at 540.
58. Comment: D A Bronstein, "An American Perspective on Australian Conservation Foundation Incorporated v Commonwealth of Australia and the Status of Environmental Law in Australia" (1982) 13 FL Rev 76 at 87.
59. See discussion in B J Preston, "Judicial Review in Environmental Cases" (1991) 10 Aust Bar Rev 147.
60. (1982) 153 CLR 270.
61. (1987) 13 FCR 306.
62. (1987) 13 FCR 306.
63. (1987) 13 FCR 306.
64. (1987) 13 FCR 306.
65. (1987) 13 FCR 306.
66. [1983] 2 Qd R 72.
67. (1990)2 WAR 422.
68. (1990)2 WAR 422.
69. See also Jacobs J, at first instance, in Australian Conservation Foundation Inc v South Australia (1989) 52 SASR 288 at 302-303. But see contra Ngalia Heritage Research Foundation Inc v Minister for Aboriginal Affairs (unreported, WA Sup Ct, Anderson J, 6/11/91, Lib No 9147), p 8
70. and Friends of Castle Hill Assoc Ltd v Queensland Heritage Council (1993) 81 LGERA 346 at 353-354.
71. and Friends of Castle Hill Assoc Ltd v Queensland Heritage Council (1993) 81 LGERA 346 at 353-354.
72. (1995) 129 ALR 191.
73. (1995) 129 ALR 191.
74. (1995) 129 ALR 191.
75. (1990) 53 SASR 349.
76. [1983] 2 Qd R 72.
77. (1990)53 SASR 349 at 353.
78. (1990)53 SASR 349 at 353.
79. (1990)53 SASR 349 at 353.
80. (1990)53 SASR 349 at 353.
81. (1989) 19 ALD 70.
82. Referring to Stephen J in Onus v Alcoa at (1981) 149 CLR 27 at 42.
83. See analysis of M Allars, "Standing: The Role and Evolution of the Test" (1991) FL Rev 83 at 105-107.
84. (1989)73 LGRA 218.
85. (1989)73 LGRA 218.
86. (1989)73 LGRA 218.
87. (1989)73 LGRA 218.
88. (1989)73 LGRA 218.
89. Special leave to apply to the High Court was granted. However, when the main action, which had been listed for trial, was abandoned, the High Court appeal listing was vacated.
90. (1995) 85 LGERA 296
91. 127 ALR 580.
92. (1994) 85 LGERA 270
93. 127 ALR 617.
94. As to the factors sustaining the claim to standing: see North Coast case (1994) 85 LGERA 270 at 292-294
95. 127 ALR 617 at 637-639
96. Tasmanian Conservation Trust v Minister for Resources (1995) 127 ALR 580 at 613-615.
97. See J D Heydon, "Injunctions & Declarations", in L A Stein (ed), Locus Standi (1979), Ch 2.
98. E I Sykes, "Suggested reform: A general rule", in L A Stein (ed). Locus standi (1979), Ch 9, p 233.
99. E I Sykes, "Suggested reform: A general rule", in L A Stein (ed). Locus standi (1979), Ch 9, p 233.
100. E I Sykes, "Suggested reform: A general rule", in L A Stein (ed). Locus standi (1979), Ch 9, p 233.
101. E I Sykes, "Suggested reform: A general rule", in L A Stein (ed). Locus standi (1979), Ch 9, p 233.
102. Tarrant v State Electricity Commission of Victoria [1974] VPA 184 at 199, 200.
103. (1985) 66 LGRA 306 at 310, 313.
104. See Heritage Act 1977 (NSW), s 153
105. Environmentally Hazardous Chemicals Act 1985 (NSW), s 5 7
106. National Parks and Wildlife Act 1974 (NSW), s 176a and Wilderness Act 1987 (NSW), s 27.
107. As to the circumstances in which the court should act to restrain a breach of the legislation in each case, see Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 per Kirby P.
108. See s 131. However, the provision does not apply to a decision or conduct concerning a matter that occurred before the organisation or association was formed or its objects or purposes included in that regard: see s 131(4).
109. Australian Law Reform Commission, p 27.
110. Australian Law Reform Commission, p 27.
111. Australian Law Reform Commission, p 27.
112. Australian Law Reform Commission, p 27.
113. Australian Law Reform Commission, p 27.
114. Australian Law Reform Commission, p 27.
115. Australian Law Reform Commission, p 27.
116. Australian Law Reform Commission, p 27.
117. Development Act 1993 (SA), s 86 enables any person to apply to the Environment Resources and Development Court to remedy or restrain a breach of the Act
118. Planning and Environment Act 1987 (Vic), s 114 enables "any person" to apply to the Administrative Appeals Tribunal for an enforcement order against the owner or occupier of any land and other interested persons where a use or development of land contravenes, has contravened or will contravene the Act, a planning scheme, a condition of a permit or an agreement entered into under s 173. Interim enforcement orders may also be made under the Act. By s 125, any person may apply to a court of competent jurisdiction for an injunction restraining a person from contravening an enforcement or an interim enforcement order
119. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
120. Environment Protection Act 1994 (Qld), s 193(1), inter alia, enables a person whose interests are affected by the subject matter of the proceedings or another person with the leave of the court to apply to the Land Court for an order to remedy or restrain an offence even if that person does not have a proprietary, material, financial or special interest in the subject matter of the proceedings. This provision is similar to the equivalent provisions noted above under New South Wales and South Australian legislation
121. Local Government (Planning and Environment) Act 1990, s 2.23 enables any person to prosecute a person who contravenes or fails to comply with the provisions of a planning scheme or commences a permitted or permissible use prior to the completion of works required by the planning scheme, regardless of whether or not that person's rights have been infringed as a result of the conduct.
122. Environmental Management and Pollution Control Act 1994 (Tas), s 48(1) enables a person who has, in the opinion of the Appeal Tribunal, a "proper interest in the subject matter", to apply for an order to prevent contravention of the Act or a person from causing environmental harm by contravention of the Act or any other Act. As to what "a proper interest" is, suggests the "special interest" test, but may better be equated with traditional "aggrieved person" requirements for the prerogative writ of certiorari.
123. Heritage of Western Australia Act 1990 (WA), s 66(3) enables contravention of the Act to be remedied by any person whether or not any right of that person has been or may be infringed. This Act deals only with built heritage.
124. Planning Act 1979 (NT), s 121(3) enables any person who would not be entitled to take proceedings to enforce the Act but for this provision, to obtain the leave of the Supreme Court. No explanation has been given and no case relevantly deals with the circumstances in which the Supreme Court may grant leave
125. See ss 25 and 13(2a). As to the circumstances in which the court will grant leave to criminal actions, see Brown v Environment Protection Authority (NSW) (1992) 75 LGRA 397 (LEC).
126. See, eg, Environment Protection Act 1993 (SA), s 104(8).
127. For example, see Armstrong v Hammond[1958] VR 479 at 480-481.
128. See generally Bates, Buddin and Maure, "The System of Criminal Law" (1979), par [2.37].
129. (1985) 55 LGRA 444 at 449-550 (NSW CA).
130. (1987) 13 FCR 306 at 324.
131. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
132. See H Schoombee, "Environmental Litigation: Facing the Twin Hurdles of Standing and an Undertaking for Damages" in Defending the Environment, conference papers (1995), p 44.
133. See, eg, Environmental Protection Act 1993 (SA), s 104(17).
134. See M Allars, Introduction to Australian Administrative Law (1990), p 308 [6.166],