Case: Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493
Outcome: applied
The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another". 24 Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.) 25 Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. (cf Gibbs J at 532) 27 The respondent made written submissions to the following effect: a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11 ; (1999) 200 CLR 591 d. no relator action is brought in the name of the Attorney-General at the applicant's request that such proceeding be undertaken: Farley &amp; Lewers Ltd v AG [1963] NSWR 1624 e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109 f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. 28 The applicant submitted in summary: a. the issue of standing to commence an action under the HREOC Act or the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481 c. contravention of a standard may be cause for complaint under s 32 DD Act d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an "aggrieved person" on the basis of "alleged unlawful discrimination" e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to "unlawful discrimination" as defined in s 3 HREOC Act f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President g. the applicant's complaint concerns ss 31 and 32 DD Act , and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32 i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards j. Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights k. the approach taken by the High Court in Truth About Motorways [2000] HCA 11 ; 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court. 30 In this case, the respondent has drawn an analogy between the applicant's claim and the difficulties faced by the Foundation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, which was found by the High Court to have no special interest or private right to sustain proceedings. In my view however the relevant legislation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 was very different to that in this case. A key difference was summarised by Stephen J in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, where his Honour observed that, with reference to the relevant legislation and legislative instruments in that case, ...the subject matter of the [Environmental] Procedures is such as to suggest that the appellant has no standing to enforce compliance with them. They are not a code of procedure, such as is familiar in town planning legislation, designed to ensure that those who are likely to be affected by the grant of some permit or the rezoning of some land are given a right to object and to have their objection heard and determined . (at 544) (emphasis added) (cf Gibbs J at 532) 41 Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. 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 53 It is clear in this case that the complainant does have an intellectual or emotional concern in the subject matter of the proceedings. I accept that the purpose of the applicant is to ensure that all members of the Hervey Bay community have access to all premises and facilities in the region. However merely incorporating an association and giving voice to such objects is not sufficient to create standing, or to establish that the association is a "person aggrieved": Australian Conservation Foundation 146 CLR at 530, Right to Life 56 FCR at 67, 77. 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. 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. 63 Further, although of somewhat debatable significance (note comments of Lockhart J in Right to Life 56 FCR at 253), unlike in the North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 and National Trust of Australia (Vic) [1976] VR 592, there is no evidence before me that the applicant in this case is considered to be a peak body representing the interests of the disabled in the Hervey Bay region of Queensland, or that the applicant has been recognised by government as a body representing the concerns of the disabled in the Hervey Bay region of Queensland or had participated in official government decision-making processes. Further, while I note from correspondence attached to the affidavit of Mr Robin Andrew King sworn 8 November 2005 that the respondent has acknowledged the applicant's interest in bus shelter infrastructure in the region and sought the input of the applicant and its members (annexure RK 3), and that the Disability Standards require, inter alia , that a provider must consult with "passengers with disabilities who use their service, or with organisations representing people with disabilities, about any proposal for equivalent access" (cl 33.2 Disability Standards), it is difficult to characterise the conduct of the respondent as being anything more than a willingness to consult an organisation which was willing to provide information. In this sense, a comparison may be drawn with the consultation with the Foundation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. Accordingly, I do not find comparisons with North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 or the National Trust of Australia (Vic) [1976] VR 592 cases of assistance in these proceedings.