Standing and Justiciability

From Uni Study Guides
Revision as of 22:13, 1 September 2013 by Admin (Talk | contribs)

(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
Jump to: navigation, search

This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [17.1.1]-[17.2.7]; [17.3.1]-[17.3.9C]; [17.3.11C]-[17.3.14]; [17.4.12]-[17.4.19]; [17.4.1]-[17.4.10]; [17.2.8], [5.3.41]; [2.3.1]-[2.3.19].

The principle of “standing” in Australia

[1]The doctrine of standing (locus standi) is essentially the right to commence a legal proceeding in a court or tribunal. “Standing” is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.

In most public law actions the applicant’s standing will be apparent and will not require separate consideration. The cases in which standing is a disputed issue tend to fall into one of the following categories:

  1. A public interest group or community organisation, seeking to challenge the validity of a government decision that is of public policy concern to the organisation.
  2. A trade union or trade association, seeking to challenge a government decision that adversely affects the members of the union or association.
  3. A commercial entity, seeking to challenge a government decision that is favourable to a commercial rival.
  4. A member of the public – a ‘concerned’ citizen – who is seeking to challenge a government decision that does not affect the person’s private rights but is otherwise of concern to them.

Standing cases often raise practical and philosophical issues about the role of courts and the province of public law, including:

  • If the role of courts is to uphold the rule of law and to constrain unlawful governmental action, should the doctrine of standing be applied liberally or even as ‘open standing’?
  • What factors should be taken into account in deciding whether a party has standing (should it just be private rights)? Does a liberal test pose a realistic threat of a flood of meddlesome litigation?
  • Should courts apply a single or common test for standing in all judicial review proceedings?
  • Should the Attorney-General, as the first law officer of the Crown, have a greater right to commence public law proceedings? Or should the Attorney-General nowadays be treated more as a parliamentarian or politician?

The case for restricting standing in public law litigation

[2]An individual will usually not be found to have standing in respect of infringement of public rights unless a private right was also infringed or a special damage suffered. They must have a special interest in the subject matter of the litigation, to the extent that their interests are adversely affected by the decision or conduct being challenged more than other citizens.

These tests create a restrictive doctrine which is justified as follows:

  • The role of the courts in an adversarial system is to adjudicate disputes between parties as to their respective legal rights and duties, not disputes about public policy or rights.
    • “The decisions to be make as to the public interest are not such as courts are fitted or equipped to make...” (Lord Wilberforce)[3]
  • As court decisions create binding precedent, it is important that the parties before the court have an interest in the outcome to ensure that legal issues are properly framed and argued.
    • “...it is especially important that the private plaintiff who seeks to represent the public interest should have this level of motivation. Without it, the public interest will suffer.”[4]
  • It is undesirable in principle that every government decision should be at risk of being set aside at the suit of a person who has no personal stake in that decision. Other forums in society can be used to debate and question the general functioning of government.
  • Any radical changes to the law should be made by the legislature and not the courts.
    • “It is for the Parliament, whose members are the elected representatives of the people, to change an established rule if they consider it to be undesirable, and not for judges, unelected and unrepresentative, to determine not what is, but what ought to be, the law.” (Gibbs J)[5]
  • “...the basic purpose of the civil courts is to protect individual rights, that it is not part of their function to enforce the public law of the community or to oversee the enforcement of the civil or criminal law, except as an incident in the course of protecting the rights of individuals...”[6]

The case against restricting standing in public law litigation

[7] Those who are against the restriction of standing advance three possible ways of doing it:

  1. A doctrine of open standing to apply in all public law proceedings.
  2. A modified doctrine of open standing, as proposed by the Australian Law Reform Commission. This would entail open standing unless legislation clearly states otherwise or in all the circumstances it would not be in the public interest.
  3. Less strict application of the existing test.

The arguments against restricting standing are:

  • The law of standing should not inhibit the ability of courts to restrain unlawful government action and safeguard rule of law.
  • The law of standing hampers the role that public interest litigation can play in enforcing legal compliance and government accountability.
  • The law of standing rests upon elastic phrase such as special interest and person aggrieved, which are difficult to apply in a meaningful way.
  • From a practical perspective, the law of standing does not accomplish its objectives; inappropriate or vexatious litigation can be better controlled through the powers available to a court to manage the litigation process.
  • Democratic theory supports citizen participation in the processes of government.
  • Some statutes now provide that an independent statutory authority (such as an environmental or human rights commissioner or ombudsman) has a right to initiate or join proceedings to protect the public interest. Less restrictive standing would enhance protections for natural objects (or environmental issues).

Standing at common law

[8]The law of standing is dominated by the High Court’s decision in AFC (Australian Conservation Fund), which has been consistently applied even in cases that have taken a seemingly more liberal view. In this case, proceedings were initiated by a public interest organisation (the Australian Conservation Foundation) to raise an issue of public policy nature, rather than to safeguard a legal, financial, proprietary or other right of the organisation. The case has several important principles:

  1. A “special interest” confers standing.
  2. An emotional or intellectual concern will not of itself confer standing.
  3. The interests of an organisation are usually considered different to those of its members.

Australian Conservation Fund v Commonwealth[9]

Facts: A company proposed to establish a resort in Queensland. The Australian Conservation Foundation commenced proceedings in the original jurisdiction of the High Court for a declaration and an injunction, claiming that the Commonwealth proposed to give approval to the project without properly complying with the Environmental Protection (Impact of Proposals) Act 1974 (Cth) and administrative procedures created by it.
  • ACF was an incorporated association of 6500 members that was established to advocate on environmental causes. It claimed interest because it regularly made submissions to government and had done so on this proposal, it was a peak national advocacy body and some members would be adversely affected by reduced land access at the proposal site.
Issue: What is the test for standing? What interest does a public interest organisation have?
Held: At first instance, and on appeal, the Court found that AFC had no standing.
  • The action was not brought to assert a private right but to prevent what it alleged was a public wrong.
  • The plaintiff needs special interest peculiar to himself. “Special damage” is not limited to actual pecuniary loss and the words “peculiar to himself” do not mean that the plaintiff and no one else, must have suffered the damage.
  • An interest does not mean a mere emotional or intellectual concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his actions succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.
  • A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. A corporation does not acquire standing because some of its members possess it.
Murphy J dissented, holding that the ACF derived standing both under the EPIP Act, and at common law, on the following basis:
  • “If a member of the public has a right to be heard... he is entitled to be heard or have his submission or comment dealt with according to legal principles, that is, according to the procedure laid down by law.”

Onus v Alcoa of Australia Ltd[10]

Facts: The Victorian Relics Act made it an offence to damage or endanger an Aboriginal relic. The plaintiffs, who were members of the Gournditch-jmara Aboriginal people, claimed that Aboriginal relics would be destroyed by the construction by Alcoa of an aluminium smelter. The Supreme Court of Victoria held that the plaintiffs did not have standing to seek declaratory and injunctive relief, as their interest was no more than emotional or intellectual concern. The High Court reversed this decision.
Issue: Standing under a statute.
Held: The Act does not confer private rights on Aboriginals or any class of them because it is aimed at the conservation of relics which are regarded as being of value not only to them, but also to archaeologists, anthropologists and the Australian public generally.
  • The plaintiffs do have an interest which is greater than other members of the public and other people of Aborginal descent who are not members of the Gournditch-jmara people. They would be more particularly affected by the destruction of the relics. They claim to be custodians of the relics according to the laws and customs of their people and claim that the relics are of cultural and spiritual importance to them and that they have used them to teach their children the culture of their people.
  • It was immaterial that the relics were located on land owned by Alcoa to which the plaintiffs had no right of access.
  • Brennan J said that “To deny standing would be to deny an important category of modern public statutory duties an effective procedure for curial enforcement...”

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs[11]

Facts: The court held that a union of employees had standing to seek a declaration of invalidity of a decision by the minister to permit Sunday retail trading.
Issue: Standing of a Union.
Held:
  • The union had a large number of members who were employed as shop assistants in the Central Shopping District and the subject matter of the litigation was trading hours in the District.
  • The Minister contended that the change in shopping hours would affect the whole community in various ways and that shop assistants had no special interest, however, their interest is different from and greater than that of other members of the public because the changes would affect the terms and conditions of their employment. It would have an impact upon the times which shop assistants work and upon the number of persons, whether permanent or casual, required to work.

Bateman’s Bay Local Aboriginal Land Council v the Aboriginal Community Benefit Fund Pty Ltd[12]

Held: Kirby J held that the test of whether a party has “sufficient material interest in the subject matter” of the action “is to be construed as an enabling, not a restive, procedural stipulation.”
  • The standing conferred in this case was solely on the basis of the organisation’s economic interest.

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport[13]

Facts: The institute, whose members worked on ships, claimed that a manning notice issued by the Department (which specified for tax purposes the number of crew required to operate a ships safely and efficiently) specified a number which was too low.
Issue: Standing in a case brought to correct an alleged public wrong rather than to assert a private right. Standing of an organisation.
Held: The institute was given standing as a “person aggrieved.”
  • “The applicant has among its interests or objects the obtaining and maintenance of reasonable conditions of employment of its members and the negotiation of awards and agreements with employers...”
  • “It was invited to participate in the Manning Committee in respect of the ship in question and made submissions in regard to the proposed manning notice.”
  • “As a matter of practicality, the manning scale provided for in the manning notice may be a determinant of the number of members of the applicant that will be engaged.”
  • The court held that each of these factors alone would not be sufficient to constitute an interest, cumulatively they could be adequate to create standing.
    • Furthermore, if the decision were to go ahead, it could create a “danger and peril to the interests of the applicant that is clear and imminent rather than remote, indirect or fanciful, and the applicant has an interest in the matter of an intensity and degree well above that of an ordinary member of the public.”

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health'[14]

Facts: The Full Federal Court held that the association did not have standing as a person aggrieved to challenge the failure of the secretary to take action under the Therapeutic Goods Act 1989 (Cth) to stop the clinical trial of an abortion drug.
Issue: Standing of an organisation in a case brought to correct an alleged public wrong rather than to assert a private right.
Held:
  • The applicant must be able to prove a greater advantage or disadvantage created by the decision than ordinary members of the public.
  • “A corporation cannot be placed in any better position than the individual and this applies even in the case where the corporation has included in its members those who would themselves have an interest in the subject matter of the litigation...”
  • The right to speak and influence the opinions of the public does not translate to a right of standing.
  • The important and deep moral questions which concern the association are not addressed by the Therapeutic Goods Act.
  • The applicant only had an intellectual, philosophical and emotional concern.

It will usually be necessary for a person to point to an interest different to that of other members of the public, however, it is possible that a person will gain standing even though their interest is similar to that of a large segment of the population.

  • In Dyson v Attorney-General,[15] the court accepted that Dyson, along with eight million other taxpayers could seek a declaration that a government agency was acting unlawfully in requiring them to complete a form.
  • In Croome v Tasmania,[16] the High Court held that a member of the public who was liable to prosecution under a Tasmanian statute that criminalised homosexual relations, had standing to challenge the validity of that law even if no action had been taken to enforce the law against him.

Standing in the AAT

[17]As tribunals are created by statute, the statute will define who is entitled to lodge an application for review. The statutory test can vary for each tribunal. The relaxed procedural style of the AAT is generally seen as a factor which should predispose the tribunal to take a liberal and flexible approach to standing.

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
SECT 27

Persons who may apply to Tribunal

(1) Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979 ) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.
(3) Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.
SECT 30A

The Commonwealth Attorney-General may intervene in any proceeding before the tribunal.

SECT 30(1A)

The tribunal has a discretion to allow “any other person whose interests are affected” by a decision to be made a party to the proceedings.

Section 27(2) is a unique provision that paves the way for public interest and community organisations to seek merit review of decisions that have public policy implications.

  • In Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1), Davies J held that the relationship between the object of the review and the purpose of the association “must be a real or genuine one. It is not enough that points of correlation can be found.”[18]

Standing under section 30(1A) has been granted when:

  • Joinder of a party would expedite the disposition of substantive issues in contention.
  • The interests of a party would be affected by disclosure of a document.
  • The joinder applicants were journalists who had made the initial freedom of information request for documents about a person who had initiated the proceedings to restrain disclosure.

Re McHatten and Collector of Customs (NSW)[19]

Facts: The Collector of Customs had imposed duty on a product imported by Termolst, a client of Mr McHatten, a customs agent. Mr McHatten applied for review of the Collector’s decision, claiming that Termolst had acted on his advice and that his professional standing was adversely affected as a result. The tribunal held that Mr McHatten was not entitled to commence the proceedings as a person affected by the Collector’s decision.
Issue: Interest for tribunal standing.
Held: The interest necessary must be an interest which is affected by the decision to be reviewed, not the review. A decision which affects interests of one person directly may affect the interests of others indirectly; this indirect link is not sufficient to create standing.

Standing for non-statutory remedies and under the ADJR Act

[20]If standing is sought under a prerogative writ or equitable remedy rather than statute, different rules of standing may apply to each remedy.

Declaration and Injunction

The standing requirement for declaration and injunction is the same; that the applicant has a special interest in the subject matter of the proceedings.

Mandamus

The writ of mandamus commands the performance of a duty of a public nature that remains unperformed. The (restrictive) test for standing is that mandamus will be granted to a prosecutor who demonstrates a sufficient interest or specific legal right in enforcing a public duty that is owed to them.

Sometimes courts approach the issue by asking if the prosecutor has standing, at other times by asking if the duty to administer the law is owed to the prosecutor. Although this test is more restrictive than for other prerogative writs, there are nevertheless cases that illustrate a liberal approach.

Habeas Corpus

The dominant purpose of habeas corpus is to seek the release from detention or imprisonment of a person who is being unlawfully detained. To deal with the practical difficulty faced by a person in confinement of commencing proceedings, “anybody in the community who knows that a person is wrongfully imprisoned has a right to have the writ to discharge that person out of imprisonment.”[21]

Even though the threshold for the test is low, it is possible that standing could be denied on a discretionary basis. In Vardlis, Beaumont J noted that “it is wrong that a person should rely on his or her own unlawful act... to secure an advantage which could not have been obtained had the person acted lawfully.”[22]

Certiorari and Prohibition

A purpose of these writs is to ensure that a public body (commonly an inferior court or tribunal) acts accordingly to law in discharging its functions. Proceeding for these writs can be initiated by a “stranger” – a person with no private legal right or interest to protect because there is a public interest benefit in ensuring that adjudicative bodies act within their jurisdiction.

A court nevertheless has a discretion to refuse a writ and may be less inclined to exercise its discretion in favour of a stranger as opposed to a person aggrieved.

Re McBain’ Ex Parte Australian Catholic Bishops Conference[23]

Facts: The Bishops Conference had been granted the fiat of the Commonwealth Attorney-General to commence proceedings in the High Court, seeking the writ of certiorari to quash a decision of the Federal Court that permitted IVF treatment for single women. The Bishops Conference had appeared as non-party in the Federal Court proceedings (and, not being a party to those proceedings, was unable to appeal against the decision). An issue discussed by some members of the High Court (in dicta) was the standing of the Bishops Conference to commence the proceedings in the High Court in the absence of the Attorney-General’s fiat.
Issue: Standing under a writ of certiorari.
Held: Permitting strangers to apply for certiorari helps to ensure that “the prescribed order of the administration of justice” is not disobeyed.
  • Although a stranger may apply, their lack of standing in the proceedings will often lead to the court refusing to issue either writ (certiorari or prohibition) on discretionary grounds.
  • The beliefs held by the order and their influence on the beliefs of others does not give the Conference a “special interest” in the outcome of proceedings.

Administrative Decisions (Judicial Review) Act (ADJR ACT)

The ADJR Act provides that proceedings can be instituted by “a person who is aggrieved” by a reviewable decision or conduct (ss 5, 6). The term “person aggrieved” is defined as including a reference to a person “whose interests are adversely affected” by the decision or conduct (s 3(4)).

The ADJR Act test of standing is heavily influenced by (often to the point of being indistinguishable from) the test of “special interest” developed at common law for declaration and injunction. However, some judicial observations about its scope are of note:

  • “In each instance the content of the expression is to be seen in the light of the scope and purpose of the statute in issue and, given the diversity of statutory provisions, no general proposition is to be established...”[24]
  • The meaning of a “person aggrieved” is not encased in any technical rules and much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.
  • A countervailing consideration to a liberal interpretation of the test stems from the fact that s 13 provides that a “person aggrieved” is to be provided with a written statement of the reasons for a decision. Therefore the burden placed on government agencies could be extensive if “person aggrieved” is given a broad meaning.
    • However, consider how many people in this class would actually request the statement.

The Constitutional concept of a “matter”

[25]Section 76(i) of the Constitution provides that parliament could confer jurisdiction upon the High Court (as a [federal] Ch III court) “in any matter arising under this Constitution, or involving its interpretation.”

  • “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 Court... The legislature cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law.”[26]
  • Matter is not “abstract questions of law without the right or duty of any body or person being involved.”[27]

In McBain, Hayne J discussed the relationship between standing and legal doctrines concerned with justiciability, remedies and judicial power:

  • “Questions of standing, for example, are not arid technical questions but are to be understood as rooted in fundamental conceptions about judicial power just as much as are questions of what is meant by a matter.”[28]
  • “Because a ‘matter’ involves the existence of a controversy about some immediate right, duty or liability to be established by the determination of the court... it will often be the case that an attempt by a person who has no more than a theoretical interest in the subject-matter to agitate a question about rights, duties or liabilities of others will not give rise to any ‘matter’.”[29]

Justiciability

[30]Many issues in government are not suitable for evaluation by the judicial method, whether because of the nature of the issue, the limitations of judicial method, or the existence of a more suitable alternative method of scrutiny. At common law it is left to a court to define situations in which judicial review is appropriate.

  • “Justiciability may be seen as a concept which cuts across the fundamental obligation of any court to exercise the jurisdiction vested in it and the principle that the ‘right of access to the King’s Court must not be lightly refused’, as well as the maintenance of rule of law.”[31]
  • “[N]on-exercise of jurisdiction invested in a court should be confined to issues which, on analysis, do not involve the exercise of judicial power because the issue is committed exclusively to a non-judicial agency or because the issue is incapable of resolution by legal criteria or ascertainable objective standards.”[32]
  • Beyond broad doctrinal issues of the restriction of jurisdiction to ‘matters’ and the exclusion of hypothetical issues where the decision relies on “political considerations” rather than “legal standards”, the courts have considered whether the following administrative decisions are justiciable:
    1. A government decision involving the exercise of a prerogative power.
    2. A cabinet decision.
    3. A decision with a close relationship to national security.
    4. A decision made in the conduct of international relations.

Re McBain’ Ex Parte Australian Catholic Bishops Conference[33]

Facts: In proceedings initiated by Dr McBain, the Full Federal Court held that a provision of the Infertility Treatment Act 1995 (Vic) was invalid because it was inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth). The provision limited fertilisation treatment to women who were married or living in a de facto relationship with a man. The Bishops Conference, as amici curiae, made a contrary submission in support of the validity of the Victorian law. Since the Catholic Bishops were not a party to the Federal Court proceedings, they had no right of appeal against the decision. The High Court dismissed the actions of the Attorney-General to intervene and grant a fiat to the Bishops to commence proceedings in the High Court (on various grounds to do with jurisdiction and the remedy sought by the parties).
Issue: Do the proceedings involve a ‘matter’?
Held: People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous.
  • There can be no ‘matter’ within the meaning of the Constitution unless there is some immediate right, duty or liability to be established by the determination of the Court. Hypothetical questions give rise to no matter.
  • As the court cannot determine political issues, the Conference could not obtain a satisfactory outcome anyway.
  • There was no applicable remedy to be sought in this case. If there is no legal remedy for a ‘wrong, there can be no ‘matter.’

(CCSU) Council of Civil Service Unions v Minister for the Civil Service[34]

Facts: Prime Minister Thatcher made a decision that the workers at Government Communications Headquarters could no longer belong to a trade union other than an approved staff association. The decision was made under the power conferred upon the minister by a Civil Service Order in Council, which had been made under the royal prerogative. The House of Lords held that the decision would have been invalid because Thatcher did not consult the unions and therefore breached natural justice, however, the decision not to consult was justified on national security grounds (i.e. the claim that industrial disputation had impaired the ability of the Headquarters to discharge its function of ensuring the security of UK military and official communication and providing signals intelligence to the government).
Issue: Whether a decision made in exercise of a prerogative power is subject to judicial review and the effect in law to be given by a court to a government national security claim.
Held: (To be discussed in class.)

(Peko Ez) Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd [35]

Facts: Cabinet made a decision to nominate Kakadu for inclusion in the World Heritage List. The decision did not directly affect any existing interest of the Peko group of companies but it was disadvantageous to Peko EZ concerning the future opportunity to undertake mining within the existing mineral leases it held in the park. Peko EZ commenced proceedings in the Federal Court to challenge the validity of the decision on the ground that Cabinet had failed to give Peko EZ a hearing. The Federal Court found in favour of Peko EZ and held that natural justice had been breached. The Full Federal Court overturned the decision on the grounds that the decision of Cabinet was non-justiciable as to the breach of natural justice and that Peko EZ had been given an adequate opportunity of presenting a case and had not been denied natural justice.
Issue: Justiciability of Cabinet decisions and natural justice.
Held: (To be discussed in class.)

The proceedings in Peko EZ illustrate the significance that litigation can have even where an issue is non-justiciable. The government obtained leave from the relevant UN organisation to defer consideration for twelve months and in the interim amended the National Parks and Wildlife Conservation Act 1975 (Cth) to prohibit mining operations in Kakadu. The Courts in CSSU and Peko EZ reached the conclusion that justiciability does not turn on whether the exercise of power is statutory or prerogative in origin, but on the nature of the power being exercised or the decision being made.

  • The conduct of international relations by government can involve many decisions and questions that are non-justiciable, such as entering into a treaty and whether the government is adequately protecting its citizens abroad.
    • However, courts have adjudicated upon whether the government can repel the unlawful entry of asylum seekers into Australian waters or restrain a Japanese whaling company from taking whales in the Australian Whale Sanctuary.
  • There will be no ‘matter’ if the subject matter of the litigation depends entirely upon political sanctions.
  • There are no settled categories of justiciability. Many executive activities are shielded from regular judicial review by principles of non-justiciability.

Hicks v Ruddock[36]

Facts: Mr Hicks was confined at Guantanamo Bay and sought judicial review of a decision by the Minister for Immigration not to request his release from internment. The Minister argued that there was no justiciable issue and that the Act of State doctrine required a court of one nation to abstain from hearing proceedings that might require it to pass judgement on the legality of acts of a foreign sovereign government. The court dismissed the Minister’s application and ruled that the proceedings should go to a hearing.
Issue: Justiciability of Minister’s international relations decisions.
Held: It is arguable that the necessity for judicial or manageable standards by which to decide the issues in a given case are satisfied when those issues involve considerations of the Constitutional reach of, and limitations on, executive power. Rather than excluding foreign relations from review, the proper approach is to carefully examine the particular grounds of review raised on which the specific release is based.


End

This is the end of this topic. Click here to go back to the main subject page for Administrative Law.

References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 965-71.
  2. Textbook, pp 966-9.
  3. Gouriet v Union of Post Office Workers [1978] AC 435, at 482.
  4. Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985).
  5. ACF.
  6. Bateman’s Bay Local Aboriginal Land Council v the Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.
  7. Textbook, pp 969-71.
  8. Textbook, pp 972-9 and 981-3.
  9. (1980) 146 CLR 493.
  10. (1981) 149 CLR 27.
  11. (1995) 183 CLR 552.
  12. (1998) 194 CLR 247.
  13. (1986) 13 FCR 124.
  14. (1995) 56 FCR 50.
  15. [1911] 1 KB 410.
  16. (1997) 191 CLR 119.
  17. Textbook, pp 989-92.
  18. (1980) 3 ALD 74.
  19. (1971) 1 ALD 67 AAT.
  20. Textbook, pp 983-9.
  21. R v Waters [1912] VLR 372 at 375.
  22. Minister for Immigration and Multicultural Affairs v Vardarlis (2001) 110 FCR 491. (Here, in practically compelling MV Tampa to divert from Indonesia to Christmas Island).
  23. (2002) 209 CLR 372.
  24. Gummow J in Marine Engineers Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124.
  25. Textbook, pp 971-2 and 288.
  26. Re Judiciary and Navigation Acts (1921) 29 CLR 257.
  27. Ibid.
  28. Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372.
  29. Ibid.
  30. Textbook, pp 59-75.
  31. Sir Anthony Mason AC KBE, ‘The High Court as Gatekeeper’ (2000) 24 Melbourne University Law Review 784.
  32. Ibid.
  33. (2002) 209 CLR 372.
  34. [1985] AC 374.
  35. (1987) 15 FCR 274.
  36. (2007) 156 FCR 574.
Personal tools
Namespaces

Variants
Actions
Navigation
Toolbox