Case: Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142
Outcome: considered
Tenth, to the extent that incorporated associations are bodies corporate which may sue or be sued in their own name, in assessing the interests of a body corporate the interests of its members are arguably irrelevant. So in Victorian Chamber of Manufactures v The Commonwealth [1943] HCA 19 ; (1943) 67 CLR 335 at 343 Starke J, without needing to decide the point, observed that an infringement of the rights of members of an incorporated body does of itself mean that the rights of the incorporated body are infringed, or that the incorporated body has standing to maintain an action (cf Lockhart J in Right to Life 56 FCR at 253 and Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142). This may be distinguished from the position concerning unincorporated associations. A useful illustration of this point in this context is Scully 79 FCR 537, where an unincorporated association commenced proceedings under the Racial Discrimination Act 1975 (Cth) (in its then form), Wilcox J said: I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a "person" in the eyes of the law, it is incapable of being a 'person aggrieved' within the meaning of s 22(1) of the Racial Discrimination Act . Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are 'persons aggrieved' by the allegedly unlawful act. If they are, the complaint is competent in law, though not in name, as it was made by them. (at 548) 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 55 Before me, Mr Fleming on behalf of the respondent submitted that the applicant represented a general body of people, which might include people without a disability but with a genuine concern as to disability, and that this does not give the applicant a greater interest in the matter than anyone else. Mr Fleming cites Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 in support of this submission. There is a distinction between the case before me and such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142, namely that in each of those cases it was clear that the members of the association had no more interest in the proceedings - be they concerning the establishment of a resort in Central Queensland, abortion drugs, bat rookeries or rabbit calicivirus disease - than ordinary members of the public. In this case, it appears that the applicant was incorporated to represent people who have an interest in, inter alia , accessing public transport in the Hervey Bay region, and it further appears that it does represent some people who live in the Hervey Bay region and some people who are disabled and who may be aggrieved by non-compliance with the Disability Standards in that region. Potentially, for example, those members who are both disabled and live in the Hervey Bay region have an interest in these proceedings more than ordinary members of the public. 59 Second, there is substantial body of authority, to which I have already referred, that the interests of members of a body corporate do not equate with the interests of the body corporate: Victorian Chamber of Manufactures [1943] HCA 19 ; 67 CLR 335, Right to Life 56 FCR 50, Defence Coalition against RCD 74 FCR 142. 60 Third, in any event I am not persuaded that the possible interests of the members of the applicant in this case are sufficient to distinguish this case from the general body of law represented by such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142 . I note that the nature of the membership of the association was taken into consideration in Manuka [1998] ACTSC 86 where Higgins J held that the complainant had standing as an aggrieved person because each of its members would have a real interest in the subject matter of the decisions . However in this critical respect Manuka [1998] ACTSC 86 is immediately distinguishable from the case before me. The evidence here does not disclose how many of the members of the applicant are people with disabilities or who live in the Hervey Bay region, or both. It is quite possible - indeed likely given that the applicant contends that the majority of its members have an interest associated with the actions of the respondent - that some of its members are neither disabled nor live in the Hervey Bay region.