Week 11 Standing and Privative Clauses
STANDING and PRIVATIVE CLAUSES
Texts:
Creyke & McMillan Ch 17 & 15
Aronson, Dyer & Groves Ch 11 & 17
Standing - ADJR ACT
ADJR Act ss 3(4), 5, 6, 7
Standing - ADMINISTRATIVE APPEAL TRIBUNAL
AAT Act s 27
AAT Act s 30(1A) (joinder)
Introduction - Standing
Standing to sue - the right to commence legal proceedings - is fundamental to access
our legal system. Participation in proceedings that have commenced, either as an
intervenor or as a friend of the court, can be important in protecting rights or interests
or in contributing to the quality of the resolution of the dispute.
An applicant for review must have sufficient interest in the decision to seek review of
it. In formal language, they must have standing or locus standi.
Public interest litigation has increased in the last twenty years. This increase is closely
related to the growth in administrative and judicial review of government decisions
and to an increase in the number of statutory 'public rights'.
The increase in public interest litigation also reflects the fact that while litigation is
primarily used as a means of resolving disputes between two parties, it is also an
important mechanism for clarifying legal issues or enforcing laws to the benefit of the
general community.
For example, litigation may determine, enforce or clarify an important right or
obligation affecting the community or a significant sector of the community or it may
develop the law generally so as to reduce the need for further litigation. This is often
the case in proceedings testing the validity of particular government actions or
legislation.
There are also laws creating public rights, such as those in relation to the environment
and consumer protection, which rely on private enforcement as an integral part of
ensuring compliance. In these types of proceedings the courts and the legislature have
developed rules of standing to allow persons other than those whose immediate rights
or interests are at stake to bring the matter to court.
The history of standing has been one of gradual extension or liberalisation of
the scope for private individuals to enforce public interest rights. There is an
obvious tension here with the doctrine of separation of powers. Traditionally,
as we will see, only the Attorney-General had standing to invoke the Royal
prerogative and challenge the legality of a government decision, unless a
person's private rights were affected. The trend by courts, both in England and
Australia, towards liberalisation of standing rules certainly enhances
government accountability, but may also undermine legitimate and necessary
executive powers.
Common Law
Historically, there appeared to be a number of different standing requirements because
the formula for standing varied from remedy to remedy. But the terms were fuzzy and
the interests and interferences that they describe were not clearly marked out. So,
while the words varied, in a practical sense there was not much difference between
most of these formulas. Phrases such as “person affected” and “person aggrieved” use
different words but scarcely conjure up radically different positions for an applicant.
Even if there was any difference in principle, it would be overtaken by the flexibility
of the formula in practice. Consequently, despite different formulas for standing for
the various remedies, in practice in most cases there was little, if any, discernible
difference in standing from one remedy to another. For the most part the variation was
more semantic than substantive.
Prerogative Remedies
A person has standing to seek prohibition if that person was a party to the proceedings
before the tribunal or inferior court against which prohibition is sought. However, a
'stranger', who is not a party to the proceedings, has standing only at the discretion of
the court.
Prior to recent changes to the procedure and standing test for gaining judicial review
in the United Kingdom the test of standing to seek prohibition and certiorari had
already undergone liberalisation by the courts. Provided the person was not a 'mere
busybody', any member of the public whose interests were affected had standing to
seek these remedies in a case of a flagrant and serious breach of the law by a
government authority which was continuing unchecked. See, for example, R v
Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Assn [1972] 2 QB
299; R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184.
However, tests applying in the United Kingdom are no longer safely relied upon in
Australia (see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 73). Australian
courts have not adopted the English test and tend instead to use the test of whether the
applicant has a 'special interest in the subject-matter of the action', which is strictly a
test of standing to seek an injunction or declaration (see later).
A person aggrieved has standing as of right to seek certiorari (see Cheatley v R (1972)
127 CLR 291). A person aggrieved is a person who has suffered damage greater than
that suffered by ordinary members of the public. However, a stranger, who comes
forward as a member of the general public with no particular interest in the matter,
has standing only at the discretion of the court. Nevertheless, where there is a
manifest want of jurisdiction, a stranger generally has standing. As in the case of
prohibition, the more liberal standing test developed in the United Kingdom is not
clearly applicable in Australia, and there is a tendency to have resort to the liberalised
test of standing to seek an injunction or declaration, namely whether the applicant has
a 'special interest in the subject-matter of the action'.
A person whose 'legal specific right' is affected has standing to seek mandamus to
compel the administrator to decide, or decide again, according to law. This test of
standing appears to be narrower than that for prohibition and certiorari. However, as
in the case of those remedies, the standing test for mandamus underwent liberalisation
in the United Kingdom through the development of the notion that only a person who
was a 'busybody' in relation to the action should be excluded from seeking judicial
review. A person who exercises a legal right to participate in a tribunal hearing has
standing to seek mandamus in respect of the tribunal's proceedings. See Sinclair v
Mining Warden at Maryborough (1975) 132 CLR 473.
Standing of others
Persons other than the Attorney-General have standing to seek an injunction or
declaration in two situations. The starting point of most discussions is the decision in
Boyce v Paddington Borough Council [1903] 1 Ch 109.
Special interest in subject matter of action
A second limb in Boyce's case was modified and liberalised as a result of the decision
of the High Court in Australian Conservation Foundation Inc v Commonwealth (1980)
146 CLR 493 ('ACF case'). A special interest was distinguished from a 'mere
intellectual belief or concern', which did not found standing. Although a special
interest need not amount to a legal right, it was not established by the Australian
Conservation Foundation in the ACF case. The foundation was simply a group of
people sharing a common concern for the environment.
In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, the High Court held that an
interest of a spiritual or emotional nature may ground standing to seek an injunction.
However, the special position of the aboriginals, who were the plaintiffs in Onus, in
terms of aboriginal customary law, gave them standing where perhaps general
environmental groups seek standing to restrain development in breach of
environmental and planning legislation may in some cases have more difficulty in
establishing a 'special interest'.
Judicial Review Act
For proceedings under the Judicial Review Act there are three parties whose standing
must be considered. First, there is the plaintiff. To obtain review under ss5, 6 and 7,
and to obtain reasons under s13, the plaintiff must be a person who is aggrieved, that
is, aggrieved by the decision, (s5) conduct (s6) or failure to make a decision. (s7)
Second, under s12 a person may join an application for review once the application is
made. To do this they have to be a person interested. (s12)
Third, the Attorney General can also intervene, (s18) although the Attorney General
intervenes as of right. Hence, the only standing required is to be the Attorney General.
Definition: Person Aggrieved
There is an inclusive definition of “person aggrieved” in s3(4). It defines the phrases
“aggrieved by a decision,” “aggrieved by conduct,” and “aggrieved by a failure to
make a decision.” In each case, a person is aggrieved when their interests are
“adversely affected” by the decision, conduct or failure to decide.
Since this definition is merely inclusive and not exhaustive, there are two tests for
standing, (i) a person whose interests are “adversely affected,” or a (ii) person
“aggrieved” in its natural sense. Standing may be approached through either of the
two phrases. As it turns out, the cases have largely ignored the definition and focused
on person aggrieved itself.
The reason for this probably lies in the similarity of the two phrases – “person whose
interests are adversely affected” semantically differs little from “person aggrieved.”
Nevertheless the definition reveals something important. The phrase “person whose
interests are aggrieved” reveals clearly that standing has two requirements, the stake
or interest which the applicant has (“interest”) and a threatened interference with it
(“adversely affected”), whereas in the formula in the ss 5. 6 and 7, both of these
concepts are wrapped up in “aggrieved.”
Much of this has now been overtaken by the High Court’s action in translating just
about all standing requirements as entailing that a plaintiff seeking judicial review
must have a special interest. This is discussed below.
Decision, Conduct or Failure to Decide
While much of the attention given to standing focuses on the meaning of “aggrieved,”
it is important not to overlook that under ss5, 6 and 7 respectively an applicant for
review must be aggrieved by the relevant decision, conduct or failure to decide.
As such, standing under the ADJR Act depends upon the applicant establishing that
he or she is a 'person aggrieved'. To reiterate, the ADJR Act defines a 'person
aggrieved' as a person whose interests are adversely affected by a decision or
determination to which the ADJR Act applies. The test of standing therefore depends
upon the decision being justiciable under the ADJR Act. See Australian Broadcasting
Tribunal v Bond (1990) 170 CLR 321. There is also a standing test for joinder as a
party to proceedings under the ADJR Act. This is a test of 'person interested' (ADJR
Act section 12).
Introduction – Privative Clauses
A ‘privative clause’ is a provision in legislation that purports to exclude or limit
judicial review of decisions made under that legislation.
Examples include clauses which:

confer wide discretionary powers on the decision-maker

restrict the kinds of inquiry a court can engage in

preventing remedies being granted by the courts

restrict the grounds for review

impose time limits on when an application for review can be sought
 oust the judiciary’s ability to review decisions in a particular jurisdiction.
Hickman
The High Court appeared to reconcile conflicting principles in this area in the 1945
case of R v Hickman, ex parte Fox and Clinton ("Hickman"). In a statement that came
to be described as "classical", Dixon J (as he then was) set out this interpretive
approach:
“The particular regulation is expressed in a manner that has grown familiar.
Both under Commonwealth law, and in jurisdictions where there is a unitary
constitution, the interpretation of provisions of the general nature of reg 17 is
well established. They are not interpreted as meaning to set at large courts or
other judicial bodies to whose decision they relate. Such a clause is
interpreted as meaning that no decision which is in fact given by the body
concerned shall be invalidated on the ground that it has not conformed to the
requirements governing its proceedings or the exercise of its authority,
provided always that the decision is a bona fide attempt to exercise its power,
that it relates to the subject matter of the legislation, and that it is reasonably
capable of reference to the power given to the body.”
What is the Hickman principle?
There is sometimes confusion about how many "limbs" of the Hickman principle
there actually are. The most common version of the Hickman principle contains only
3 limbs. A privative clause will successfully oust judicial review only if:



1. The tribunal's decision was a bona fide attempt to exercise its power.
2. The decision relates to the subject matter of the legislation.
3. The decision is reasonably capable of reference to the power given to the
tribunal.
However, some texts (e.g. Aronson & Dyer) add a 4th and 5th limb:

4. The decision does not display a jurisdictional error on its face;

5. The decision is not in breach of a specific statutory limitation on the
tribunal's power which it is reasonable to suppose Parliament intended to be
supreme (i.e. the breach is not intended to be protected by operation of the
clause).
Limited privative clauses
"Finality" and "no appeal" clauses
"No certiorari" clauses (and similar)
"Conclusive evidence" clauses
"Time limit" clauses
Limiting review grounds
Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2
The Migration Act Privative Clause
Section 474 of the Migration Act was inserted by the Migration Legislation
Amendment (Judicial Review) Act 2001 (Cth) and came into effect on 2 October 2001.
It contains the following privative clause:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question
in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any
court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made,
proposed to be made, or required to be made, as the case may be, under this Act or
under a regulation or other instrument made under this Act (whether in the exercise of
a discretion or not), other than a decision referred to in subsection (4) or (5).
Selected Readings - Standing
* ALRC Beyond the door-keeper: Standing to sue for Public Remedies Report No 78
(1996 AGPS)
Allars, M 'Standing: the role and evolution of the test', (1992) 20 Federal Law Review
83
Barker, M L 'Standing to sue in public interest environmental litigation: from ACF v
Commonwealth to Tasmanian Conservation Trust v Minister for Resources', (1996)
13 Environmental and Planning Law Journal 186
Barnes, J 'Standing: environmental groups get the green light', (1990) 18 Australian
Business Law Review 338
Burmester, H 'Standing to Sue for Public Remedies', (1997) 8 Public Law Review 3
Caldwell, J L 'Locus standi in administrative law', [1982] New Zealand Law Journal
21
Campbell, L 'Who should right the public wrong? The ALRC's proposal for a test for
standing', (1997) 5 Australian Journal of Administrative Law 48
Cane, P 'The function of standing rules in administrative law', [1980] Public Law 303
Coyle, K A 'Standing of third parties to challenge administrative agency actions',
(1988) 76 California Law Review 1061
Duns, J 'Winding up: standing and abuse of process', (1996) 4 Insolvency Law Journal
100
Enderbury, J 'Equity and public law in the law of standing: Bateman's Bay Local
Aboriginal Council v the Aboriginal Community Benefit Fund Pty Ltd', (1999) 21
Sydney Law Review 129
Fisher, E and Kirk, J 'Still Standing: An Argument for Open Standing in Australia and
England', (1997) 71 Australian Law Journal 370
Glindemann, R 'Standing to sue for environment protection: a look at recent changes',
(1996) 24 Australian Business Law Review 246
Lane, P D 'Standing to sue for a declaration and injunction in the public interest',
(1988) 18 Queensland Law Society Journal 115
Lynch, P 'Representative actions in the Federal Court of Australia', (1994) 12
Australian Bar Review 159
Mack, K M 'Standing to sue under Federal administrative law', (1986-87) 16 Federal
Law Review 319
Naughton, T F M 'The limits of jurisdiction and locus standi in the Land and
Environment Court of New South Wales', (1991) 65 Australian Law Journal 149
Nott, S 'The use of the relator action in present-day administrative law', [1984] Public
Law 22
O'Connor, K 'Rights to appear before tribunals', (1981) 6 Legal Service Bulletin 225
Peiris, G L 'The doctrine of locus standi in Commonwealth administrative law', [1983]
Public Law 52
Rose, A 'Standing to sue for public law remedies', (1996) 11 AIAL Forum 25
Ryland, M 'Beyond the door-keeper: standing to sue for public remedies', (1996) 69
Reform 35
Spry, M 'A "Person Aggrieved" under the ADJR Act: three recent cases on standing',
(1996) 3 Australian Journal of Administrative Law 120
Taylor, G D S 'Individual standing and the public interest: Australian developments',
[1983] Civil Justice Quarterly 353
Tokar, J J 'Administrative law: locus standi in judicial review proceedings', (1984) 14
Manitoba Law Journal 209
Selected Caselaw - Standing
Allan v Transurban City Link Limited [2001] HCA 58
* Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70
Australian Institute of Marine and Power Engineers v Secretary, Department of
Transport (1986) 13 FCR 124
* Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community
Benefit Fund Pty Ltd (1998) 194 CLR 247
Douglas v Minister for Aboriginal Affairs (1994) 34 ALD 192.
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
* North Coast Environment Council Incorp v Minister for Resources (No 2) (1994)
127 ALR 617 (See further: Tasmanian Conservation TrustInc v Minister for
Resources (1995) 127 ALR 580)
* Ogle v Strickland (1987) 71 ALR 41
* Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
R v Justices of Surrey (1870) LR 5 QB 466
* Re Control Investment and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD
74
Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5
ALD 289
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of
Human Services and Health (1995) 128 ALR 238
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs
(SA) (1995) 183 CLR 552
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Transurban City Link Ltd v Allan [1999] FCA 1723
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management
Ltd (2000) 74 ALJR 604
United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509; rev’d
(1988) 83 ALR 79
Selected Readings – Privative Clauses
Craig, P ‘Competing Models of Judicial Review’ [1999] Public Law 428
Crock, M ‘Privative Clauses and the Rule of Law: The Place of Judicial Review
within the Construct of Australian Democracy’ in Susan Kneebone (ed)
Administrative Law and the Rule of Law: Still Part of the Same Package? (1999)
AIAL 78.
Evans, S ‘Protection Visas and Privative Clause Decisions: Hickman and The
Migration Act 1958 (Cth), (2002) 9 Aust Admin L Jo 49
Kneebone, S ‘Removing Judicial Review of Migration (Refugee) Decisions: A
System in Crisis in Need of a Holistic Approach’ (2000) 11 Pub L Rev 87
Loughton, G "Privative Clauses and the Commonwealth Constitution: A Primer",
unpublished paper delivered to the Australian Government Solicitor's Constitutional
Law Forum at Old Parliament House in Canberra on 23 October 2002.
Sackville, R ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000)
23 UNSW L Jo 190
Selected Caselaw – Privative Clauses
Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462
Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
NAAV v Minister for Immigration and Multicultural Affairs and others [2002]
FCFCA 228
Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132
The Queen v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415
R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598
Shergold v Tanner (2000) 179 ALR 150
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November
2004)
Selected Readings – Privative Clauses
Craig, P ‘Competing Models of Judicial Review’ [1999] Public Law 428
Crock, M ‘Privative Clauses and the Rule of Law: The Place of Judicial Review
within the Construct of Australian Democracy’ in Susan Kneebone (ed)
Administrative Law and the Rule of Law: Still Part of the Same Package? (1999)
AIAL 78.
Evans, S ‘Protection Visas and Privative Clause Decisions: Hickman and The
Migration Act 1958 (Cth), (2002) 9 Aust Admin L Jo 49
Kneebone, S ‘Removing Judicial Review of Migration (Refugee) Decisions: A
System in Crisis in Need of a Holistic Approach’ (2000) 11 Pub L Rev 87
Loughton, G "Privative Clauses and the Commonwealth Constitution: A Primer",
unpublished paper delivered to the Australian Government Solicitor's Constitutional
Law Forum at Old Parliament House in Canberra on 23 October 2002.
Sackville, R ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000)
23 UNSW L Jo 190
Selected Caselaw – Privative Clauses
Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462
Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
NAAV v Minister for Immigration and Multicultural Affairs and others [2002]
FCFCA 228
Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132
The Queen v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415
R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598
Shergold v Tanner (2000) 179 ALR 150
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November
2004)