By Ashleigh Best, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493  

Court – High Court of Australia  
Judges – Aickin J; Gibbs, Stephen, Mason and Murphy JJ
Date of Judgment – 13 February 1980

FACTS OF THE CASE

The Australian Conservation Foundation Inc (‘ACF’), the appellant, brought action against the Commonwealth of Australia, Ministers of State and the Reserve Bank (‘Commonwealth’), the respondents, alleging that the approval granted to a corporation for the development of a resort and tourist facility in central Queensland was invalid. In early 1978, the corporation initiating the development was instructed by the Commonwealth to prepare a draft environmental impact statement in accordance with the administrative procedures under the Environment Protection (Impact of Proposals) Act 1974 (Cth), (‘the Act’), which was made available for public comment.

The ACF lodged a valid submission concerning the proposal within the time frame for public comment. Some days later, the Acting Minister for the Environment announced that approval had been granted for either the acquisition of overseas funds for the development or the development of the resort and tourist facility itself. The ACF sought declarations and injunctions in the High Court of Australia to nullify the approval. The claim was based principally on the ground that the Commonwealth had reached its decision without regard to the final environmental impact statement, and therefore failed to observe required administrative procedures. The Commonwealth sought to have the claim struck out on the basis that the ACF lacked standing to bring the action.

THE ISSUE

Whether the ACF had standing to enforce a public right.

THE DECISION

A majority of the Full Court, agreeing with the decision of Aickin J at trial, held that the ACF did not have the necessary standing to maintain the action. Principally, this determination was based on the fact that the Minister’s grant of approval did not expose the ACF to special damage or injure a special interest of the appellant.

In relation to standing generally, the Court emphasised that “apart from cases of constitutional validity”, a member of the public with the same interest as everyone else “has no standing to sue to prevent the violation of a public right”. While this was deemed the ordinary position, the Court explored various circumstances in which standing would be available for the enforcement of such a right.

Gibbs J noted that the enforcement of public rights by way of declarations and injunctions is the “responsibility of the Attorney-General” who, unlike in this case, may bring a related action on behalf of a member of the public who would not ordinarily have standing.

Stephen J and Gibbs J affirmed the capacity of legislation to grant standing for the enforcement of public rights. Stephen J rejected the contention that the legislation, by permitting and governing public contribution to environmental impact statements, had the effect of granting standing to the ACF as a participant in the process and, rather, found that the role of the ACF was limited to providing comments.

The Court referred to the English case of Boyce v Paddington Borough Council [1903] 1 Ch 109, which established that standing to enforce a public right may be available independently of the Attorney-General only where a private right is “at the same time interfered with”, or a plaintiff “suffers special damage” as a consequence of the public right being infringed. The Court found that the ACF was not asserting a private right, but rather a “public wrong”. Accordingly, while the ACF had been set up with the objective of promoting environmental protection, Stephen J was not satisfied that conduct “injurious to the object of that concern” namely, the construction of the resort and tourist facility, would cause special damage so as to vest the ACF with standing.

Gibbs J reformulated the special damage limb of the Boyce test to extend standing to a plaintiff in circumstances where they have a “special interest in the subject matter of an action”. While conceding that “a person might have a special interest in the preservation of a particular environment”, Gibbs J indicated that “an interest… does not mean a mere intellectual or emotional concern” and that there must be an advantage to be gained “other than the satisfaction of righting a wrong, upholding a principle or winning a contest”, deeming the appellant’s motivation inadequate. He also noted that a corporation “does not acquire standing because some of its members possess it”. By reducing the appellant’s cause to nothing more than a “belief”, Gibbs J found against the presence of a special interest, and thus held that the appellant lacked standing to bring the action.

Mason J affirmed that a person will have standing provided they can demonstrate “actual or apprehended injury” to his or her “property or proprietary rights… business or economic interests and perhaps…social or political interests”. However, Mason J found that the “mere belief or concern” held by the ACF and the fact that its “primary object is to protect…the environment, by virtue of that characteristic alone” were inadequate to vest the ACF with standing.

Murphy J, in dissent, concluded that by inviting public contribution to the environmental impact statement, the Act disclosed an intention to grant members of the public the standing required to enforce the procedures under it. Murphy J also found that the appellant had a special interest, being “more particularly affected as [the appellant] has gone to the trouble of submitting comments”.

COMMENTARY

A party seeking to bring an action in respect of a public right must identify a special interest in the subject matter of the case. Intellectual or emotional concern by itself will not constitute a special interest, nor will a mere belief. The fact that a corporation is underpinned by certain objects does not provide that corporation with a special interest, and thus standing, to take action against conduct which harms those objects.

Although this case concerned environmental protection, rather than animal welfare, much of the reasoning can be applied to animal welfare issues. Indeed, as the cases of Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221 and Animal Lovers Volunteer Association v Weinberger (1985) 765 F.2d 937 (9th Cir. 1985) demonstrate, such reasoning has already been applied to animal cases. It is also noteworthy, that in a later case, Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, the ACF was found to have standing in accordance with legislation that gave standing to “a person aggrieved”. The Court found that the ACF was the most important national conservation organisation and its objectives and activities were such to classify it as “a person aggrieved”. The later decision reflects an expansion in the test for standing in public interest matters at common law, as well as the breadth of the statutory test imposed under the Administrative Decisions (Judicial Review) Act 1977 (Cth).