Sydney Law Review
In Bateman’s Bay Local Aboriginal Council v The Aboriginal Community Benefit Fund, the High Court has revived equity’s traditional interest in granting the remedies of declaration and injunction against the ultra vires activities of statutory bodies with recourse to public funds. The court rejected the argument that, in the absence of the Attorney-General’s fiat, applicants could not obtain standing to protect the public interest when considerations of public rights or interests are in dispute. In doing this, the High Court has made a focus of standing not just the need for applicants to possess a ‘special interest’ in the subject matter of public law proceedings but also consideration of the historical basis upon which equity has intervened to protect the public interest. The significance of Bateman’s Bay, through its detailed analysis of the historical intersection of equity and public law and reconsideration of the bases upon which the special interest test was developed, lies in a renewed emphasis upon vindicating the public interest in restraining the misapplication of government funds and a realistic appraisal of the political role of the Attorney-General in Australia.
Bateman’s Bay expresses dissatisfaction with the difficulties applicants face in challenging the potentially unlawful acts of public bodies, in having to prove both the occurrence of ultra vires activities and in bringing themselves within the special interest test requirements. The decision adds new dimensions to considerations of standing, without substantively changing the special interest test. But the question of whether the reinvigoration of equity’s supervisory jurisdiction in public law is to be extended to threats to ultra vires activities which do not involve recourse to public funds has been left open. Bateman’s Bay does not address recent Federal Court decisions which have expanded the scope of the special interest test, especially in the context of public interest litigation. It will be argued in this note that despite the court’s attempts to move questions of standing away from the private law conceptions upon which standing tests are largely based, Bateman’s Bay fails to make clear the applicability of recent developments in the special interest test to its reasoning and the limitations of the special interest test in advancing the view of equity’s supervisory jurisdiction that the court prefers.
Before considering the proceedings in Bateman’s Bay, some background to the law of standing as related to applications for declarations and injunctions in modern public law is helpful. The development of standing in this area concerns the role and evolution of the special interest test. First, some idea of the explanations offered for the function of standing tests in public law is necessary.
Standing is concerned with whether a plaintiff can invoke the jurisdiction of a court (as distinguished from justiciability which asks whether the judicial process is suitable for the resolution of a certain type of dispute). The law of standing only raises problems for plaintiffs in public law proceedings. In civil litigation disputes are over the nature of legal rights claimed by private parties, and this is assumed to accord those parties standing to litigate the matter in a court. But in public law the applicant seeking standing is concerned about the violation of a ‘public right’, for example activities by a statutory authority which are alleged to be ultra vires the powers conferred by legislation upon that body and which invade certain protections afforded to the public by the statute. Standing requirements in public law proceedings restrict to persons affected by a decision or action the ability to litigate. A connection must exist between the interests of the person or group and the remedy sought. The traditional ‘floodgates’ argument – that standing really operates as a filtering mechanism whereby the courts can restrict what would otherwise be an influx of ‘officious busybodies’ – has been rejected by both courts and commentators as a realistic objection to open standing or as an adequate explanation for standing requirements.
The content of tests for obtaining standing has traditionally depended upon the nature of the subject matter in dispute, the relevant statute and the remedy being sought. The remedies of certiorari and prohibition have been available, subject to a court’s discretion, to ‘persons aggrieved’, that is, persons who suffer damage above ordinary members of the public. Standing rules for mandamus have been traditionally stricter than the other prerogative remedies of certiorari and prohibition, in requiring a plaintiff’s legal specific right to be affected. But the remedies which Bateman’s Bay are concerned with are declarations and injunctions. Unlike the prerogative writs, and especially unlike the legal specific right being protected by mandamus, declarations and injunctions are traditionally sought in public law by applicants in order to enforce a statutory duty, without an applicant’s legal or proprietary rights being affected. An injunction may be sought to enforce statute law, such as in restraining a public authority from acting ultra vires and in aid of rights conferred by that statute, which are unlikely to be proprietary. Declarations may be sought together with injunctions in order to have a court state with finality the nature of the legal rights and obligations in dispute. The standing test applied for declarations and injunctions is the same, and is now called the ‘special interest test’ in Australian law.
However, the ability of plaintiffs to obtain standing to challenge alleged abuses of statutory power through the special interest test evolved as an exception to the general rule that only the Attorney-General could intervene to protect the public interest. In Gouriet v Union of Post Office Workers, Lord Wilberforce declared that this right was constitutional, based upon the notion that the Attorney-General ‘has the right, and the duty, to consider the public interest generally and widely’. Lord Wilberforce argued that it was:
a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown. And just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out.
Apart from the Attorney-General applying for remedies as the principal party, litigants can also enforce statutes through a relator action, which is also described as obtaining the Attorney-General’s fiat. A relator action is commenced by the Attorney-General at the request of a member of the public who does not possess standing to sue, and the action is brought in the Attorney-General’s name ex relatione or ex rel (citing the name of the member of the public). The Attorney- General’s discretion to grant fiat is non-justiciable. The plaintiffs in Bateman’s Bay were denied the Attorney-General’s fiat.
The degree to which an applicant must be affected before being accorded standing to litigate the matter, in the absence of the Attorney-General or a relator action, has evolved from the test laid down in Boyce v Paddington Borough Council, to the Australian development of this principle after its more liberal redefinition by the High Court in Australian Conservation Foundation v The Commonwealth, and Onus v Alcoa of Australia Ltd, as the ‘special interest test’. An understanding of Boyce is crucial to Bateman’s Bay. Bateman’s Bay reexamines the principles laid down in Boyce and finds them inadequate for Bateman’s Bay-type proceedings. Boyce formulated two exceptions to the rule that only the Attorney-General could sue to protect the public interest. In this situation a plaintiff could sue, first, where the interference with the public right also amounts to an interference with a private right of the plaintiff’s. Secondly, a plaintiff could sue where no private right was interfered with ‘but the plaintiff, in respect of his public right, suffers special damage peculiar to himself’ caused by the interference with the public right. These principles are derived largely from the tort of nuisance. In addition, there is little to distinguish the first Boyce exception from the private law conception of standing. It is the second exception, which does not identify whether the ‘special damage’ can be other than pecuniary loss and confines the ‘special damage’ to the plaintiff alone, which has proved unsatisfactory and has been modified both in England and Australia. The two most important High Court decisions in this area are ACF v Commonwealth and Onus v Alcoa.
In ACF v Commonwealth the High Court of Australia reformulated Boyce’s special damage test into the ‘special interest’ test. The ACF sought declaratory and injunctive relief, claiming that the approval of a proposal to establish a tourist resort, and certain exchange control transactions in relation to that proposal, in central Queensland, were invalid on the basis of being contrary to the Environment Protection (Impact of Proposals) Act 1974 (Cth). Justice Gibbs described the Boyce test for standing as ‘not altogether satisfactory’, and its choice of words ‘apt to be misleading’. ‘Special damage’, argued his Honour, could not be limited to pecuniary loss, and ‘peculiar to himself’ could not mean no one else but the plaintiff should suffer damage. ‘However’, held Gibbs J, “the expression “special damage peculiar to himself’ in my opinion should be regarded as equivalent in meaning to “having a special interest in the subject matter of the action”.’ Though the special interest did not have to be pecuniary or proprietary, Gibbs J argued that it must go beyond ‘a mere intellectual or emotional concern’. A person would not possess a special interest if he or she would be unlikely to gain an advantage, ‘other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.’ Justice Gibbs felt unable to extricate the standing requirements from an interest which goes beyond a mere belief that the law should be observed. Otherwise, the requirement of a ‘special interest’ would be ‘meaningless’. As the ACF had only sought to enforce the public law, ‘as a matter of principle’, it did not have standing. It had no interest in the subject matter of the proceedings other than the ‘upholding of the law’, which is no different from the interest any ordinary member of the public may have had, and thus had no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty.
In Onus v Alcoa of Australia Ltd, the High Court recognised that non-material interests may constitute a special interest. Two members of the Gournditch-jmara Aboriginal people applied for an injunction to restrain Alcoa of Australia Ltd from constructing an aluminium smelter on the company’s land in Victoria. The plaintiffs claimed the work would interfere with Gournditch-jmara relics on the land, and that this would contravene section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) (Relics Act). As descendants of the Gournditch-jmara people, the plaintiffs claimed they were the custodians of the relics. The High Court held that the Relics Act did not create private rights for individual Aboriginals but did create public rights. The Court applied the ACF v Commonwealth special interest test to hold that the plaintiffs had a special interest, which was ‘greater than that of other members of the public and indeed greater than that of other persons of Aboriginal descent who were not Gournditch-jmara people’. The plaintiffs and other members of the Gournditch-jmara people would have been more particularly affected than other members of the Australian community by the destruction of the relics, owing to the spiritual and cultural importance the relics had for them. The special interest test was described as a flexible one, and what would constitute a special interest will vary from case to case. Justice Stephen described the test as unable to be applied mechanically, and could not be found in any ‘ready rule of thumb.’ Rather, in each case there must be an assessment of the ‘importance of the concern which a plaintiff has with particular subject matter and the closeness of that plaintiff’s relationship to that subject matter.’
The flexibility of the special interest test was confirmed in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), the last High Court decision before Bateman’s Bay to consider the special interest test. The Court declared that the nature and the subject matter of the litigation will determine what amounts to a special interest. But little more was done by the High Court to develop the test. Rather, it is in a series of Federal Court decisions, where the special interest test has been used to interpret the ‘person aggrieved’ requirement of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), that the test has been elaborated. Though ‘person aggrieved’ was equated with the special interest test in early Federal Court decisions, it has been interpreted more expansively in recent times. ‘Person aggrieved’ is ‘the broadest of technical terms’ and the interest it requires ‘need not be a legal, proprietary, financial or other tangible interest’ or ‘peculiar to the particular person’. In Ogle v Strickland  two priests were accorded standing to apply for review of a decision of the Censorship Board which granted a license to import a film the clergymen alleged was blasphemous, indecent or obscene. The Federal Court held that the priests had a special interest as repelling blasphemy was ‘a necessary incident of their vocation’ and therefore they qualified as ‘persons aggrieved’. Fisher J held the priests’ interest went beyond the interests of ordinary members of the Christian community, who would only have a mere intellectual or emotional concern and hence no standing. Justice Lockhart preferred not to restrict standing only to ministers of religion, possibly given the existence of little or no hierarchical structures in some Christian denominations. The decision confirmed the expansion of the special interest test to encompass spiritual and cultural interests (but not, it seems, a mere interest in enforcing the law). It has been argued that it was a vocational interest which accorded the applicants standing in Ogle.
Other Federal Court decisions have enabled the test to encompass environmental public interest litigation. These decisions have held that the applicant organisation will need to demonstrate representative capacity. This can be shown through some connection with the procedures antecedent to the making of the decision (for example, being consulted or making submissions to the decision maker), and through government funding of the organisation as evidence of representativeness of the public interest involved. In addition, public acceptance of the particular interest (such as protection of the environment) as requiring protection, and the ability of the organisation to represent the interest is relevant. As such, ‘it is necessary to take account of current community perceptions and values’. In the Federal Court decision Right to Life Association (NSW), Department of Human Services and Health (Right to Life) standing was denied to the Right to Life Association, which sought to stop trials of the pregnancy termination drug Mifepristone. It has been argued that this decision has demonstrated that less emphasis will now be placed on governmental recognition or representative capacity but more upon the relationship between the aggrieved group and the nature of the statute under which the decision was made. Such arguments misconceive the judgments of court members in Right to Life other than Gummow J’s, who stated that the use of the term ‘aggrieved’ suggests that questions of standing are not answered ‘simply by identification of a person who is an effective and faithful representative of the public administration in due administration of the law concerned’. Lockhart J confirmed the flexibility of the special interest test and the criteria which had been developed by past decisions. His Honour was also concerned that the Right to Life Association might interfere with the rights of others and that the Association did not have any greater interest in the subject matter than any of its members or ordinary members of the public. Lockhart J also made the point that the relevant legislation was concerned with the safety and quality of pharmaceutical products, not state abortion laws. Right to Life may thus be distinguished on its facts.
The decisions discussed raise the question that if the special interest test is being used to interpret ‘persons aggrieved’, and is further liberalising the test in the process, does the special interest test reflect this expansion when plaintiffs apply for declarations and injunctions outside the ADJR Act? In Bateman’s Bay, the High Court was given the opportunity to explain where the special interest test stood in relation to the Federal Court decisions, and to help explain the confusion many commentators felt at the Right to Life decision; but in not analysing the Federal Court decisions it has not done so and has instead taken a different approach altogether. Bateman’s Bay prefers to base its understanding of the special interest test on the High Court special interest test decisions of ACF v Commonwealth, Onus v Alcoa, and Shop Distributive. The problem with this treatment is that those decisions are arguably still too close to private law conceptions of ‘interests’, exactly the sort of conception which underlies the High Court’s criticisms of Boyce in Bateman’s Bay.
The case involved an application by the respondents for a declaration and injunction to restrain the appellants from the operation of a contributory funeral fund business which was in direct competition with the respondents’ own funeral contribution fund business. The respondents argued that the financial and legal arrangements entered into by the appellants were outside the functions conferred upon them by statute. The respondents contended that they stood to suffer an economic detriment if the appellants were allowed to continue their allegedly unlawful operations, and that this detriment would be greater than any detriment suffered by ordinary members of the public, thus satisfying the special interest test and conferring standing to sue.
The Aboriginal Community Benefit Fund Pty Ltd was the first respondent. It operated a contributory funeral fund business which provided services for approximately 3000 members of the Aboriginal community in New South Wales and acted as trustee of the Aboriginal Community Benefit Fund. Payments were provided by the Community Benefit Fund on the death of Fund members to assist in covering funeral expenses. The second respondent, the Aboriginal Community Benefit Fund No 2 Pty Ltd, operated a contributory life insurance business for approximately 4000 members of the Aboriginal Community in New South Wales, under the same management as the first respondent. Both the first and second respondents were bodies corporate registered pursuant to the Corporations Law.
The first appellant was the Bateman’s Bay Local Aboriginal Land Council (LALC), which was constituted as a body corporate under section 6 of the Land Rights Act 1983 (NSW) (Land Rights Act). As a Local Aboriginal Land Council, its functions included under section 12(1) of the Land Rights Act the implementation of the wishes of its members (as decided at a meeting of the Council) with respect to the ‘acquisition, establishment and operation of enterprises’. The second appellant was the New South Wales Aboriginal Land Council (NSWALC), and was constituted under section 22 of the Land Rights Act. The powers conferred upon the Councils by the Land Rights Act are central to the arguments in Bateman’s Bay.
The Land Rights Act guaranteed a prescribed level of public funding for the NSWALC. Section 28 provided for an annual payment into the New South Wales Aboriginal Land Council Account of ‘7.5 per cent of the amount certified from time to time by the Treasurer as having been paid as land tax under the Land Tax Management Act’ 1956 (NSW). The NSWALC was required by section 29 of the Act to establish the ‘New South Wales Aboriginal Land Council Account’, from which payments could be made in respect of money to be provided from that Account to Regional Aboriginal Land Councils and Local Aboriginal Land Councils (such as the Bateman’s Bay LALC) for the purposes of the Land Rights Act, amounts required to meet expenditure incurred by the NSWALC in the execution or administration of the Land Rights Act, and any other payments authorised by or under the Land Rights Act or any other legislation.
Central also to the Community Funds arguments was section 11(1) of the Funeral Funds Act 1979 (NSW) (Funeral Funds Act) which states that:
(1) A person shall not carry on or advertise that he carries on or is willing to carry on any contributory funeral benefit business unless that person is:
(a) a funeral contribution fund; or
(b) exempt from the application of this section pursuant to subsection (3).
Subsection 3(a)(v) of the Funeral Funds Act states that a person is exempt from the application of subsection 1 of the Act if that person is ‘declared by the Minister by order published in the Gazette to be a person exempt from the application of this section or a person belonging to a class of persons so declared.’ In 1994 the first respondent Community Fund was declared by the Minister for Consumer Affairs to be exempt from the application of section 11, by a notice which was published in the Gazette. The appellant Councils decided to set up their own funeral contribution fund in direct competition with the Community Funds. In 1996 the Councils secured a gazetted exemption from the Minister which declared that the Bateman’s Bay LALC, as trustee for the New South Wales Aboriginal Land Councils Funeral Contribution Fund, was exempt from the application of section 11.
The respondent Funds argued that the operation by the appellant Councils of a contributory funeral fund business was in contravention of section 11 of the Funeral Funds Act and that the functions of the appellants conferred under a Deed of Trust and Management Agreement were beyond their powers under the Land Rights Act. Pursuant to the Deed of Trust and Management Agreement, both dated 22 May 1996, a contributory funeral fund benefit business was established by the appellant Councils. The Deed of Trust established a trust fund which made the Bateman’s Bay LALC a trustee of the funeral fund and made the State Council the guarantor of the Local Council. All Aboriginal persons and the spouses or children of Aboriginal persons were entitled to subscribe to the fund and to become its beneficiaries. Under the Management Agreement the NSWALC undertook to manage the ‘affairs’ of the LALC and agreed to indemnify the LALC against all actions, liabilities, proceedings, claims, costs and expenses which the LALC might incur in connection with the management of its affairs. By this agreement, the Local Council delegated its powers and duties under the trust deed establishing the funeral fund to the State Council. This was apparently because the NSWALC was aware that it might not have the power to operate a funeral fund in its own right.
This awareness is supported by a consideration of the different functions conferred upon the LALC and the NSWALC. Section 12 of the Land Rights Act gave the LALC a function related to ‘the acquisition, establishment and operation of enterprises’. But no similar function was given to the NSWALC. However, under section 23(1) the NSWALC did possess powers which included:
(f) with the agreement of a Local Aboriginal Land Council, to manage any of the affairs of that Council,
(h) to make grants or lend money to, or invest money for or on behalf of, Aborigines’.
The plaintiffs (the Community Funds) applied to the Supreme Court of New South Wales (Equity Division) before McLelland CJ in Eq for a declaration and injunction to restrain the alleged ultra vires activities of the defendants, the LALC and NSWALC (the Councils). The Community Funds claimed that the Councils’ funeral contribution fund was unlawful on the basis of being contrary to the section 11(1) prohibition in the Funeral Funds Act and that the function of the Councils’ fund was outside their powers under the Land Rights Act. McLelland CJ in Eq indicated that the benefits payable under the LALC’s fund could not have been fully financed from subscriptions and its economic viability was heavily dependant upon subsidisation by the NSWALC. His Honour also noted that:
Accordingly, since the ALC scheme would operate in substantially the same limited market as the plaintiffs’ funds, it is highly probable that the commencement and operation of the ALC scheme would have a severe detrimental financial effect on the businesses of the plaintiffs ... It is on that basis that the plaintiffs claim standing to maintain these proceedings.
The Councils argued that the Funds did not have standing because they did not enjoy a relevant special interest in the subject matter of the proceedings sufficient to give them locus standi. McLelland CJ in Eq accepted that the proceedings had not been brought ‘to vindicate or protect any private right of the plaintiffs’ and that this required them to ‘show that they are entitled to sue to enforce the relevant public rights’. His Honour described the ‘public rights’ as restraining a ‘statutory prohibition of a penal nature’ pursuant to section 11 of the Funeral Funds Act and restraining the corporations incorporated by statute for public purposes ‘from exceeding their powers’.
McLelland CJ in Eq described the special interest test as a flexible one, which is satisfied according to the nature and subject matter of the litigation. He then addressed the question of whether an interest in restraining or restricting the potentially adverse activities of a commercial competitor which allegedly violates a public right is sufficient to establish standing. In such circumstances, his Honour discerned two broad classes of cases. First, there are those which have an actual or likely effect upon the plaintiff’s interests which is direct. Such infringements are ‘analogous to infringement of a private right’, for example by requiring merchants to pay fees which a defendant statutory body has no power to exact. The second class of cases is where the actual or likely effect on the plaintiff is not direct. The plaintiff Community Funds were held to fall into this class. In this class plaintiffs can only attract standing to sue by establishing a ‘special interest’ of a general kind ‘which the relevant public right was intended to safeguard or protect’, or where the special interest lends itself to a ‘vulnerability’ to ‘special damage’ which is within the same class of damage as the public suffers as a whole and not just a ‘side effect’ of the infringement of the public right.
McLelland CJ in Eq denied the plaintiff, Community Funds, standing. He did this on the basis that the prohibition in the Funeral Funds Act was intended only to protect subscribers or potential subscribers to contributory funeral fund businesses and that the limited functions conferred on LALCs and the NSWALC by the Land Rights Act ‘was intended to protect the interests of those for whose benefit those bodies were established, and of the members of those bodies’. The plaintiff Community Funds were held not to fall into either category. However, the Chief Judge in Equity found it to be arguable that the NSWALC’s indemnity of and provision of substantial funds to the Bateman’s Bay LALC was outside the statutory functions conferred on the NSWALC, being powers only to make grants to ‘Aborigines’ and not a body corporate like the Bateman’s Bay LALC. The plaintiff Community Funds’ arguments that the arrangements meant that the Minister’s purported exemption was invalid therefore had ‘considerable force’. But it was necessary that ‘civil proceedings to restrain any violation of the public rights involved’ had to be taken by the Attorney-General, in a relator action or otherwise, ‘or by some other person with a sufficient special interest falling within the intended scope of either of the Acts in question.’
The plaintiffs appealed to the Court of Appeal, which unanimously allowed the appeal on the basis that the special interest test was satisfied by the existence of the plaintiff’s business. The Court of Appeal held that the special interest test is a flexible one which will not necessarily be denied because the effect upon a plaintiff’s commercial interests is not direct or because the public duty ‘the performance of which [the plaintiffs] seek to uphold is not a duty intended for their protection’. Members of the Court of Appeal addressed the issue of standing to seek remedies to restrain the activities of commercial competitors, and whether such applications can bring themselves within the special interest test. The reliance by McLelland CJ in Eq upon decisions such as Helicopter Utilities Pty Ltd v Australian National Airlines Commission, in order to argue that certain commercial interests are not sufficiently direct, was rejected by Handley JA in the Court of Appeal, in favour of ‘the decisive case for present purposes’: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd. In Helicopter Utilities the New South Wales Supreme Court denied standing to an applicant seeking to restrain the Australian National Airlines Commission from carrying out a contract on the basis that the contract was accepted in preference to the applicant’s tender and was ultra vires the Commission’s powers. Justice Handley stated that Helicopter Utilities was ‘decided when economic interests received less recognition generally’, and is now overruled by the High Court on the basis of Air Express. The plaintiff Community Funds’ existing business in Bateman’s Bay gave them an interest in the validity and effect of the defendants’ arrangements and the purported exemption under the Funeral Funds Act, which were alleged breaches of public duty. The point was made by Handley JA that:
[t]he appellants have existing businesses threatened by unlawful and subsidised competition from the respondents .... the appellants are the only other organisations that have marketed funeral and life insurance benefits specifically to the Aboriginal community. The appellants were therefore in a special, indeed unique, situation ....
Similarly, Sheller JA rejected McLelland’s CJ in Eq distinguishing of Lehane’s J reasoning in the Federal Court decision Boots Co (Australia) Pty Ltd v SmithKline Beecham Healthcare Pty Ltd. Justice Sheller did not accept the proposition, advanced by McLelland CJ in Eq, that standing is dependent upon a statutory prohibition being shown as for the benefit or protection of a class to which the plaintiff belongs. Other considerations can support proximity with the subject matter of the proceedings and will afford standing, such as the commercial interests identified by Lehane J in Boots which show that ‘[t]here is, after all, nothing in the nature of a commercial interest [if sufficiently substantial] which necessarily excludes it from the category of special interest ....’ Decisions such as Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd, another commercial competition case where standing was denied, are to be distinguished as specific to particular statutory schemes which set out their own criteria for the making of decisions.
The matter was remitted to McLelland CJ in Eq in the Supreme Court. His Honour found, in line with the observations he expressed in his initial decision, that the NSWALC did not possess the power to indemnify a Local Aboriginal Land Council against liabilities in the way it did because such an exercise falls outside the powers conferred upon it in section 23(f) and (h) of the Land Rights Act. The subsidisation by the NSWALC of the funeral contribution fund under the Funeral Funds Act pursuant to the indemnity in the management agreement was essential to the operation of the contributory scheme. It followed that entry into the Management Agreement and Deed of Trust exceeded the legal powers of the NSWALC and participation by the NSWALC in the LALC scheme was unlawful.
The High Court granted special leave to appeal against the decision of the Court of Appeal solely on the question of whether the Community Funds had standing, on the condition that the appellants withdrew their appeal against the adverse decision of McLelland CJ in Eq.
The High Court unanimously rejected the appeal and upheld the reasoning of the Court of Appeal. It found that the respondent Community Funds had standing to apply for a declaration and injunction against the appellant Councils on the basis of the special interest test being satisfied. The original reasoning of McLelland CJ in Eq took ‘a too narrow view’ of the question of standing and the Community Funds’ interest fell ‘well within’ the special interest test requirements.
A striking emphasis in Bateman’s Bay is the focus the decision makes upon the historical intersection of equity and public law. The judgment of Gaudron, Gummow and Kirby JJ and, to a lesser extent, of McHugh J, discusses the historical development of equity’s interest in providing remedies against the actions of public authorities acting beyond their statutory powers, especially with regard to the spending of public funds. The importance of this focus is in the fresh approach it offers for questions of standing beyond considerations of what constitutes a ‘special interest’, to the question of why equity traditionally intervened in these proceedings.
Justices Gaudron, Gummow and Kirby draw attention to the role declarations and injunctions have played ‘in shaping modern administrative law which, from its earliest days, has mirrored the way in which equity has regulated the exercise of fiduciary powers.’ Their Honours demonstrate that equity traditionally intervened in restraining the misapplication of public funds because of the inadequacies of the prerogative remedies in achieving this task, and also through the Attorney-General protecting the public interest. In earlier times, the Crown exercised its power of visitation on municipal and other chartered corporations which did not have private founders with rights of visitation. The Crown also traditionally acted to enforce the execution of charitable trusts, which were trusts for public purposes and not for persons with proprietary interests in the funds, especially in relation to preventing or stopping the misapplication of charitable trust funds. Thus, Gaudron, Gummow and Kirby JJ argue that it is a mistake to believe that equity in its auxiliary jurisdiction only intervenes to protect proprietary or other legal rights. An analogous development to the Crown’s role with regard to charitable trusts saw the Attorney-General moving against municipal corporations misapplying charitable or statutory trust funds, and eventually against statutory bodies misapplying public funds in general. According to Gaudron, Gummow and Kirby JJ:
Finally it was decided that where a public authority clothed with statutory powers exceeds them by some act which tends to interfere with public rights and so to injure the public, the Attorney-General may move to protect the public interest, although there may be no evidence of actual injury to the public.
Similarly, McHugh J discusses the evolution of the power of visitation of the Crown acting as parens patriae and enforcing the execution of charitable trusts in Chancery. This jurisdiction was extended to the ‘supervision’ of public spending by statutory bodies.
However, McHugh J places less emphasis upon these historical developments than Gaudron, Gummow and Kirby JJ as a way of understanding declarations and injunctions as remedies for checking the ultra vires activities of statutory authorities. Justice McHugh rests his decision to accord standing to the respondent Community Funds upon the damage the appellant Land Councils’ unlawful arrangements would have upon the respondents’ funeral contribution fund, which gave the respondents a ‘sufficient special interest’ in the subject matter (the unlawful arrangements) of the proceedings.
Justices Gaudron, Gummow and Kirby emphasise the ‘public interest’ in the ‘due administration of public bodies with recourse to public revenues’. Their Honours state that it must always be asked first ‘why equity, even at the instance of the Attorney-General, would intervene’. The answer is in making public authorities observe, ‘particularly those with recourse to public revenues’, the statutory limitations placed upon them. Gaudron, Gummow and Kirby JJ state that:
Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer supplied by their Honours is that it is an applicant with a ‘sufficient material interest’ in the subject matter of the litigation who may vindicate the public interest. This criterion is conceived as an ‘enabling’ and not a ‘restrictive, procedural stipulation’, in line with reasons of ‘history and the exigencies of present times’. These points raise the questions of whether Bateman’s Bay has changed the special interest test and whether the reference to ‘material’ interests limits the scope of the court’s reasoning with respect to its emphasis upon the ‘vindication of the public interest’, despite the fact that the court saw this criterion as ‘enabling’ rather than ‘restrictive’. This will be considered below. But it is necessary also to the address the court’s treatment of the Attorney-General’s traditional right to restrain the ultra vires activities of statutory bodies and the granting of fiat.
The development of the special interest exceptions to the rule that only the Attorney-General, either as a principal party or in a relator action, can protect the public interest has meant that standing can be obtained in such actions by both individuals and public interest groups. But the fact that McLelland CJ in Eq attached significance to the Attorney-General’s traditional role in his Honour’s denial of standing to the plaintiffs prompted the High Court in Bateman’s Bay to address the significant differences in the role of this officer between England and Australia, and to question its appropriateness generally. This right of the Attorney- General has been described as ‘the spectre which haunts the imagination of those attacking the very existence of a standing requirement’. The decision of Gaudron, Gummow and Kirby JJ in Bateman’s Bay reflects this haunting in being disturbed by the notion that righting public wrongs can be dependant upon the political process.
The expanded role of Chancery in the nineteenth century in applying the injunction to restrain the misapplication of public funds also adopted a narrow view of the competency of plaintiffs suing in the absence of the Attorney- General. Eventually, suits were dismissed ‘for want of equity’ with courts expressing the view that defendant statutory bodies were exceeding their powers; but no remedy could be granted in the absence of the Attorney-General. According to Gaudron, Gummow and Kirby JJ, this situation had ‘little to recommend it’. Instead of standing being dependant upon satisfaction of a standing rule, whether there was to be ‘curial enforcement of the requirement that statutory bodies observe the law’ depended upon the undisclosed determination of an Attorney-General. The evolution of the Boyce doctrine represented an attempt to ‘alleviate that state of affairs’ whilst keeping the courts free of ‘busybodies’ or ‘intermeddlers’. However, according to Gaudron, Gummow and Kirby JJ, the result of these developments is still:
an unsatisfactory weighting of the scales in favour of defendant public bodies. Not only must the plaintiff show the abuse or threatened abuse of public administration which attracts equitable intervention, but the plaintiff must also show some special interest in the subject matter of the action in which it is sought to restrain that abuse.
As discussed elsewhere in this note, in Gouriet Lord Wilberforce described the right as ‘constitutional’: the Attorney-General can enforce public rights, not private rights which are the province of private plaintiffs who cannot protect the public interest. In England, this rule has been superseded by a rule which allows anyone with a ‘sufficient interest’ to bring proceedings against statutory authorities. In Bateman’s Bay, Gaudron, Gummow and Kirby JJ argue that there are reasons against the adoption of Gouriet in Australia. The reasoning in Gouriet reflects a view of standing which sees administrative review as concerned with the vindication of private and not public rights. Apart from differences in ‘constitutional’ considerations between England and Australia’s federal structure (for example, the inapplicability of the principle that the Crown can do no wrong) the political context of the Attorney-General in England is different to that which pertains in Australia. Gouriet represents a time when it was confidently believed that the Attorney-General could adequately protect the public interest. That officer is a leading counsel of ‘established reputation’ who does sit in the House of Commons, but is rarely a Cabinet member and possesses limited administrative responsibilities. The Lord Chancellor executes key political functions. But in Australian federal and state governments the Attorney-General is often a member of Cabinet, may not be a lawyer (at least at the state level), and is in charge of a department administering statutes. Justices Gaudron, Gummow and Kirby comment that ‘[a]t the present day, it may be ‘somewhat visionary’ for citizens in this country to suppose that they may rely upon the grant of the Attorney-General’s fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible’.
In a short judgment Hayne J allowed standing to the respondent Funds on the basis of the special interest test, acknowledged the differences in the role of the Attorney-General in England and Australia, and described the issue as one of accountability and compliance. For Hayne J, there are two ways in which accountability and compliance may be secured: ‘by means that might be described broadly as ‘political’ and, if a plaintiff has a special interest in the subject matter of the proceedings, by legal process.’ By linking one of the means of securing accountability to granting standing to a plaintiff with a special interest, Hayne J’s reasoning reflects the judgment of Gaudron, Gummow and Kirby JJ, which focuses upon the vindication of the public interest by members of the public.
Justice McHugh discusses at length the traditional role of the Attorney- General. But McHugh J, unlike Gaudron, Gummow and Kirby JJ, seems more ready to accept this situation as acceptable in modern courts. His Honour makes the point that a principle had developed in the nineteenth century that ordinary members of the public had ‘no general right to invoke the aid of the civil courts to enforce public law rights or duties’. The civil courts exist, according to McHugh J, only to protect the legal rights of individuals, ‘not to ensure that individuals or public officials obey the law’. This view is in stark contrast to the position adopted by Gaudron, Gummow and Kirby JJ that equity may intervene at the suit of a member of the public to protect the public interest by restraining the ultra vires activities of statutory bodies. For McHugh J, the courts do not exist to enforce the public law except as an incident of protecting private rights which may be interfered with. This view precisely reflects the first of the Boyce exceptions to the Attorney-General’s traditional role. Justice McHugh invokes the separation of powers doctrine to state that only the Attorney-General can determine whether civil proceedings should be commenced to enforce the public law. Again, this view, as the decision of Gaudron, Gummow and Kirby JJ explains, seems to confuse, as did the reasoning underlying Boyce, the different functions served by private and public law and lays the justification for this at the door of constitutional law. The decision of Gaudron, Gummow and Kirby JJ rejects this reasoning under Australian constitutional conditions and places much more emphasis upon the intersection between equity and public law, especially at the suit of plaintiffs with a special interest in the proceedings. However, the arguments presented by McHugh J may seem to be of little consequence given that he bases his decision to grant standing upon satisfaction of the special interest test.
This result comes from McHugh J after his Honour has left the question open as to whether the Attorney-General is the appropriate person to protect the public interest, and his acceptance of the weight of precedent in the decisions ACF v Commonwealth, Onus v Alcoa, and Shop Distributive. Justice McHugh reflects upon the enforcement of public law ‘as part of the political process’, a chief responsibility of the executive government, who may decide that it is not in the public interest to enforce a particular law. Many laws may not command popular support any more, but rather the support of ‘a vocal and powerful minority’, and are best left not enforced. Decisions as to whether a law should be enforced calls for ‘fine judgment as to what the public interest truly requires’. This decision is arguably best made by a popularly elected Attorney-General and not ‘unelected judges expanding the doctrine of standing to overcome what they see as a failure of the political process to see that the law is enforced’. However, McHugh J acknowledges the criticisms of dependence upon the Attorney-General to protect the public interest, principally upon the grounds of that officer’s ‘quasipolitical’ function.
As already noted, McHugh J allowed standing to the respondent Funds. For McHugh J, the issue in Bateman’s Bay was ‘purely legal’, and avoided any controversial questions concerning who should protect the public interest. His Honour found that it was ‘hard to see how it could ever be contrary to the public interest to require a statutory corporation to spend its money and make contracts only in accordance with the statute which creates and defines its powers and purposes’. His Honour seems to believe that the misapplication of public funds by a statutory corporation is less political than other decisions made by such bodies. Why is it the case that Bateman’s Bay is a ‘purely legal’ problem whilst other situations in which the law is not properly observed are not purely legal? There are many cases in which it may seem ‘purely legal’ to force a statutory body to observe its limited powers but governments, such as in Bateman’s Bay, have chosen not to enforce the law. The problem in McHugh J’s reasoning reflects the focus of Gaudron, Gummow and Kirby JJ upon unlawful recourse to public funds as attracting equitable intervention without extending these arguments to nonfinancial decisions. As a result, we do not know how far the High Court’s analysis can be taken in the challenging of ultra vires activities. This problem is discussed in more depth in the next section.
Justices Gaudron, Gummow and Kirby highlighted the ‘deficiencies in the Boyce model which may still linger to constrain’ the special interest test criteria which had been developed by the High Court. The significance of the High Court’s treatment of Boyce in Bateman’s Bay is the fact that little critical attention has been paid to Boyce in recent cases on standing. Most decisions since ACF v Commonwealth have not discussed Boyce or its potential to linger on in the law of standing. The High Court believes that it does still linger and addresses Boyce accordingly. In the process, Bateman’s Bay attempts to distance standing requirements further from any private law characteristics which the current public law of standing may have inherited from the Boyce model. This is borne out in the reasoning of Gaudron, Gummow and Kirby JJ, who state that the formulation of the principle in Boyce failed to distinguish ‘between equitable relief in respect of a cause of action in public nuisance and a challenge to the legality of public action’. As well, the specification of a suffering of damage peculiar to the plaintiff as a cause of action may simply repeat the ‘orthodox view that one who sustains particular damage attributable to a public nuisance has a private right of action in tort’.
Justices Gaudron, Gummow and Kirby argue that in Boyce, and in the present proceedings, insufficient attention was paid to equity’s traditional role in the restraint of apprehended ultra vires activities on the part of public authorities with recourse to public funds. As discussed above, it seems that the Court has tried to change the nature of questions about standing from being not just concerned with special damage peculiar to plaintiffs or special interests but with equity’s historical supervisory jurisdiction over public authorities. Their Honours also expressed clear dissatisfaction with the reasoning underlying Boyce:
There is an incongruity in a principle which takes as its starting point the proposition that the statute in question has stopped short of creating a personal right which equity may protect by injunction, but nevertheless enables an individual who suffers ‘special damage peculiar to himself’ to seek equitable relief in respect of an interference with the public interest.
But is not this also the incongruity in the persistence of a special interest test for standing in public law? In ACF v Commonwealth, Gibbs J argued that ‘special interest’ imported the same meaning as ‘special damage peculiar to himself’ (from Boyce) yet found the Boyce principle ‘not altogether satisfactory’. The High Court in Bateman’s Bay seems ultimately to treat the foundations of the special interest test, a confusing admixture of private law notions of damages to individuals occurring simultaneously with breaches of public rights or duties, in a manner little dissimilar to Gibbs J’s treatment of it in ACF v Commonwealth. That is, Boyce is not an appropriate foundation for standing in public law but a general test is retained which insists on an ‘interest’ which a ‘mere belief’ on the part of a member of the public that the public law be observed can not constitute. As Gaudron, Gummow and Kirby JJ’s reference to the judgment of Gibbs CJ, Mason, Murphy and Brennan JJ in Wentworth v Woollahra Municipal Council demonstrates, the circumstances of the public nuisance case Boyce provided an ‘unpromising foundation’ for standing to challenge the violation by statutory bodies of legislation covering social and economic regulation. Their Honours seem to cite Wentworth in order to approve the perceived need for a ‘general principle’. They then only confirm the ‘flexible’ nature of the test, in order for it to accommodate the ‘exigencies of modern life as occasion requires’, and warn against precise formulations which may restrict the availability of equitable remedies to support the ‘public interest in due administration which enlivens equitable intervention in public life’. But the appropriateness of the special interest test is not considered by the High Court in its focus upon the ‘public interest in due administration’. Sykes’ criticism of such a test in public law remains relevant: when ‘it is considered that it is enough that the individual is affected or likely to be affected whether a broader section of society is at the same time affected or not’. The Court has not considered how the ‘public interest’ is served by the continuance of the test. Justice McHugh conceded the incoherence that exists in the law of standing, but believed any reform or ‘rationalisation’ should be left to the legislature’. Unlike Gaudron, Gummow and Kirby JJ, his Honour also noted the Australian Law Reform Commission’s recommendation for the introduction of open standing – that ‘any person should be able to commence and maintain public law proceedings’ unless the relevant legislation excludes such challenges or such a challenge would interfere with the decision of a person with a private interest in the matter from dealing with it differently – but no discussion of the ‘public interest’ that open standing might enhance in removing standing barriers appears in Bateman’s Bay.
The Court’s exegesis of equity’s historical supervision of statutory bodies misapplying public funds simply results in a repetition of the special interest test, without addressing the Federal Court jurisprudence in this area. It could be argued that because the applicants in Bateman’s Bay applied for their declaration and injunction in equity, and not under the ADJR Act, this precluded any need to consider the Federal Court decisions. But if the special interest test is being used to interpret ‘persons aggrieved’, and has been arguably expanding the scope of the test, why has the High Court not considered whether its treatment of the test in Bateman’s Bay applies to the type of public interest litigation in cases such as North Coast and ACF v Minister for Resources, or whether it applies to the expanded ‘cultural and spiritual’ category such as in Ogle v Strickland? The importance of the Federal Court cases North Coast and ACF v Minister for Resources lies in their development of the view, first recognised in ACF v Commonwealth, that the required ‘special interest’ need not be peculiar to the particular applicant. The High Court has confused the law of standing by emphasising the vindication of the public interest without reflecting on the appropriateness of insisting on an applicant’s interests in the matter. As Sackville J stated in North Coast: ‘there is much to be said for the view that the focus of attention where decisions of public authorities are challenged or reasons for those decisions are sought should not be any benefit that might accrue to the plaintiff or the applicant.’ Through the Federal Court decisions on representative capacity, public interest environmental litigation has been facilitated. In any case, the Federal Court saw no problem in using the special interest test to interpret ‘person aggrieved’, and so there seems no reason for not considering the impact of the Federal Court’s jurisprudence upon the special interest test in equity. The court’s reliance upon decisions such as ACF v Commonwealth does not appreciate the essentially private law foundations of the special interest test in that decision, as opposed to the public law focus of the test in the Federal Court ‘persons aggrieved’ cases, such as North Coast.
Justices Gaudron, Gummow and Kirby have confused the matter by confining the substantive part of their reasoning to making public bodies observe the law, ‘particularly those with recourse to public revenues’. Thus we do not know if cases not involving the recourse to public revenues, such as certain environmental and planning decisions, are covered by the High Court’s focus upon vindicating the public interest. In addition, the court answers its question as to when the ‘public interest’ can be protected in the absence of a ‘competent plaintiff’, by providing the ‘persistence in modified form of the Boyce principle’ the answer that ‘... the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter’. Does this simply mean that the respondents in Bateman’s Bay clearly had standing because they had a material interest? Or does it mean that in general a material interest is not necessary but a stronger indication of a special interest than a cultural, spiritual, vocational or social interest? To supply an answer confined to ‘sufficient material interest’ is surely inconsistent with the Federal Court and High Court reasoning discussed above. We can not be sure whether the court’s indication that its reasoning is meant to be ‘enabling’ and not ‘restrictive’ means that its re-examination of equity’s role in protecting the public interest extends to the special interests the Federal Court has recognised in public interest litigation. In the end, Bateman’s Bay represents another lost chance to reconsider the appropriateness of the special interest test. The Court has added an extra dimension to the test by examining the history of the equitable remedies in public law, but its focus upon vindicating the public interest sits ill with the persistence ‘in modified form’ of the Boyce principle.
Bateman’s Bay is an unusual and complex decision. The High Court has confirmed the flexibility of the special interest test in accommodating changing social conditions. This is consistent with both Federal Court and High Court authorities on the test, which have preferred not to define precisely a ‘special interest’ so as to assess each application on a case by case basis. But Bateman’s Bay also attempts to shift the focus of standing to seek declarations and injunctions in public law. Hitherto, the special interest test has traditionally focused upon the connection between a plaintiff’s interests and the subject matter of the dispute. But in Bateman’s Bay, the decision of Gaudron, Gummow and Kirby JJ emphasises the need to consider as an initial question the reason why equity historically chose to allow the remedies of declaration and injunction to be granted to plaintiffs challenging the ultra vires activities of statutory bodies. Ultimately, the decision restates and applies the special interest test, but in the process suggests ways of thinking about standing that take it beyond the connection between applicants and the subject matter of proceedings to considerations of equity’s historical interest in the remedying of public wrongs.
Bateman’s Bay also reflects upon the role of the Attorney-General in protecting the public interest. Justice McHugh’s opinion does not advance a ‘public accountability’ approach to standing. His Honour’s opinion seems to prefer the traditional right of the Attorney-General, but then accepts the special interest test as establishing standing for the respondent Funds. Justices Gaudron, Gummow and Kirby demonstrate the differences between England and Australia, which helps explain the reliance placed by Gouriet upon the Attorney-General’s traditional right. Their Honours display clear dissatisfaction with the view that the remedying of public wrongs can depend upon the undisclosed discretion of a political figure. It is interesting to note that the general approach of Gaudron, Gummow and Kirby JJ’s judgment reflects post-Gouriet and post-Boyce English decisions which are sceptical of the Attorney-General’s traditional role and are less concerned with private interests being affected than with demonstrating the abuse of some public right or duty. But Gouriet was one of the ‘foundation stones’ in ACF v Commonwealth, and despite the High Court’s dissatisfaction with Gouriet, Bateman’s Bay simply ends in a re-emphasis of the special interest test as derived from ACF v Commonwealth. There remains an inherent tension between the special interest test and Bateman’s Bay’s emphasis upon the accountability of statutory authorities. Whilst applicants will always need to establish both a special interest, which in Bateman’s Bay was a material interest, and the occurrence of ultra vires activities, the influence of Boyce and Gouriet in questions of standing will remain strong.