Administrative law › Module guides › Standing

The idea

Standing is a separate jurisdictional question about the right to apply, not about the merits. At common law the tests are remedy driven, so each writ and each equitable remedy once carried its own rule, but the trend the memo relies on is convergence on the special interest test drawn from the Australian Conservation Foundation case. An ideological or intellectual commitment is not enough; a real stake, such as the cultural connection in Onus v Alcoa or lost profitability in Argos, is.

For the exam standing is brief by design and comes after remedies. An applicant directly affected by the decision is dealt with in a sentence. A representative body, third party or competitor is walked through the special interest test. You satisfy the strictest test the chosen remedies require, confirm it, and move on. It is never the battleground, worth roughly two to four marks and a single paragraph.

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Name the avenue, already fixed by the remedies section. Writs and equitable relief run under s 39B(1) or the Constitution, the ADJR Act runs on the s 3(4) person aggrieved test.
2. Route the applicant. Directly affected by the decision, whether refused, revoked or burdened by it? State standing in a sentence and move on. Representative body, third party or competitor? Walk the special interest test.
3. Satisfy the strictest test on the menu, because the rest then follow.
4. Confirm and stop. Standing is never the battleground and every held paper's applicant is straightforward. Roughly 2 to 4 marks and a single paragraph.

Cases at a glance

Case	In a line
Australian Conservation Foundation v Commonwealth	The Foundation opposed a tourist resort on environmental grounds. An ideological commitment is not a special interest, so it lacked standing for a declaration and injunction
Onus v Alcoa	Aboriginal custodians challenged a smelter that would destroy relics they used in their culture. A cultural and spiritual connection is a special interest, so they had standing
Right to Life Association	An advocacy body challenged approval of a drug trial. Its concern was intellectual and fell outside the zone of the Therapeutic Goods Act, so it was not a person aggrieved
Argos v Corbell	Supermarket operators and their landlord challenged a nearby development approval. Lost profitability made the operators persons aggrieved, but the landlord's contingent loss did not
Bateman's Bay	A commercial rival sought to restrain a statutory land council's funeral fund. A competitor in the same limited market has a sufficient special interest for equitable relief

The rules

R51 · How do the standing tests relate across remedies and avenues? arrow The formal standing tests differ by remedy and by avenue yet they converge on the special interest test, so an applicant who satisfies the strictest test on the menu satisfies the rest. Bateman's Bay.

R52 · What does a special interest require? compass A special interest requires that the applicant be affected more than the public generally and stand to gain some advantage beyond righting a wrong, because a mere intellectual or emotional concern will not do. ACF at 530.

R53 · Can a cultural and spiritual connection ground a special interest? compass The special interest test is flexible and a cultural and spiritual connection to the subject matter can ground it, as with custodians affected by the destruction of relics more than other members of the public. Onus.

R54 · Does incorporation around particular objects confer standing? arrow A body's incorporation around particular objects does not by itself confer standing where its concern falls outside the zone of the governing statute and remains merely intellectual or emotional. Right to Life.

R55 · Who is a person aggrieved under s 3(4) of the ADJR Act? arrow A person aggrieved under s 3(4) of the ADJR Act must show interests adversely affected beyond an ordinary member of the public, and a loss of business profitability can suffice where a remote or contingent effect will not. Argos.

R56 · Does the applicant the decision was made against have standing, and who bears the onus? arrow The person the decision was made against, the refused applicant or the revoked approval holder, is directly affected, so standing is confirmed in one sentence, and the onus sits on the applicant to make the case.

R57 · What is the standing test for certiorari and prohibition? arrow For certiorari and prohibition the standing test is person aggrieved, and even a stranger may qualify. Right to Life, Bateman's Bay.

R58 · What is the standing test for mandamus? arrow For mandamus the standing test is the strictest writ test, a benefit from the unperformed duty.

R59 · What is the standing test for injunction and declaration? arrow For injunction and declaration the standing test is special interest, the most demanding test and so taken first. ACF, Bateman's Bay.

Common traps

Overwriting standing. The marking machine prices standing briefly and flags every planted applicant straightforward. A page on standing earns the marks of a sentence and costs the time the grounds need. Name the test, apply it in two sentences, and stop.

The wrong avenue's formula. The question stipulates the avenue. Running the ADJR person aggrieved test in a s 39B(1) only paper, or the special interest test where the ADJR Act governs, misreads the question. On a joint application answer both regimes and do not drop a limb.

The automatic competitor or body. A commercial competitor is not automatically out and a concerned body is not automatically in. Each turns on the special interest analysis. Bateman's Bay let a competitor in on an immediate and peculiar interest, while ACF and Right to Life kept ideological bodies out.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

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