* Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 
Facts: 2 members of the Gourndich-jmara Aboriginal people sought to prevent Alcoa from constructing an Aluminium smelter on the land the company owned. They had occupied the land since prehistoric times and the land contained relics of spiritual significance to them and they were custodians of these relics. The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) provided that a person who destroyed a relic was guilty of an offence. The plaintiffs sought a declaration in the Supreme Court that the Aboriginal relics were ‘relics’ and that an injunction should be granted.

PRINCIPLE: A ‘special interest’ may be found where the applicant’s interest to the subject matter is proximate; their interest goes beyond a mere emotional or intellectual interest. it can be of a spiritual or emotional nature.

Held: Gibbs CJ: Distinguished from ACF
•    Applicants did have standing from the test in ACF;
o    “a plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public, if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.”
•    the Aboriginal people had a special interest, that went beyond a mere emotional or intellectual interest, as the relics have cultural and spiritual significance, that they were custodians of them, and they use them regularly e.g. to teach their children their culture.
•    Distinguished from ACF because of the “weight” and in particular in terms of proximity. Aboriginal interest to relics is proximate- in ACF didn’t have a close connection

What this case may mean:  The HC seemed to be a bit more liberal in its approach to finding whether or not a special interest was present.  If there is a cultural or  spiritual connection to the subject matter, it is not of a wide general nature, and there exists a connection by family descent or custodial obligations, then it is more likely the Court will find you have a special interest.

Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (1989)
Facts: An act provided a person may not take fauna. The Speleological Society (Incorporated) was an association whose objects where to conserve caves. The society ran tours of the caves until it was excluded from the area and had raised $3575 by selling stickers and T-shirts. The company proposed to demolish the ‘speaking tube cave’ which lay within its mining lease. The cave was a roosting site for pregnant ghost bats. The society commenced an action seeking an injunction to restrain the company from committing an offence under the Act.

Held: Derrington J:
•    The conservationists should not be allowed to rely on the company’s “generosity” in letting it visit the caves for tours and then forcing the company into “long and expensive and delaying litigation”.
•    “a party cannot create his own standing simply by spending money in support of the cause being or intended to be promoted in the litigation, whether it is by printing slogans on T-shirts or by any other such means”.
•    “Where the interest of the relevant group is purely conservation of the natural environment, that alone is insufficient to invest standing”.
•    The society has shown no greater interest than the ACF in ACF v Cth.
•    The problem with the selling t-shirts to try to establish standing was that the “possible financial loss in the activity proposed by the respondent has employed all possible features; but they are forced and lacking in substance”.* Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998)

Facts: The Aboriginal Community Benefit Fund sought to have the Aboriginal Land Council’s funeral benefit scheme declared unlawful and sought an injunction against it on the basis that the Act creating these funds did not allow the Aboriginal Land Council to operate the funeral benefits scheme. The ALC could subsidise its plans with other public monies. The Aboriginal Funeral Benefit Fund ran a funeral benefit fund which would be likely to suffer loss through additional competition if the other fund was operating.

PRINCIPLE: the special interest test will be satisfied if a statutory body is acting ultra vires (using public funds) and a party is suffering severe economic detriment as a result.

Held: GAUDRON, GUMMOW AND KIRBY JJ:
•    Since the ALC would operate in the same field as the Aboriginal Community Benefit Fund, the Benefit Fund would be financially harmed.
•    Judicial criticism of Boyce: The Boyce rule is that the party, if not joined by the A-G, must show “a special interest in the subject matter” (this is a re-expression of the Boyce rule). The Boyce rule may lead to an “unsatisfactory weighing of the scales in favour of defendant public bodies”. In Australia we can no longer rely on the A-G to always come to the aid in the public interest.
•    “Those persons, even if not given by the legislation personal rights which would be protected by injunction, may well have a sufficient special interest”. It is in the public interest that limitations upon the use of public monies should be overseen / reviewed.
•    The current test is a “modified form of the Boyce principle” i.e. “that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter”.
•    In practice the matter is significant to the Aboriginal Community’s Benefit Fund.
•    Respondents did have sufficient standing because the land council was acting ultra vires in a manner involving the use of public funding. If a statutory body is acting UV and using public funds while acting UV, will give standing where they normally wouldn’t (for pure competition cases).
•    Special interest test maintained but respondent entitled to seek equitable relief because of severe detriment to their business.
•    2 factors- council using public money to achieve UV purposes, and the applicant suffering severe economic damage.
•    Wont allow standing where one party just trying to eliminate competition.

McHUGH J:
•    The Fund had standing because it would suffer financial detriment if the ALC’s fund was allowed to operate. Also the detriment suffered by them would be greater than suffered by any other member of the general public.
•    Although Boyce and the second limb have been criticised, it has been extensively applied by the HCA. The modified test for the second limb should be used: “a special interest in the subject matter of the action”. The test is flexible (see ACF v Cth and compare to the Onus v Alcoa case).
•    The fund had a special interest in the subject matter of the matter. The subject matter is the legality of setting up the ALC’s fund in which the Benefit Fund had special interest. The activities would affect them financially and to an extent that exceeded injury to any other individual.

4.4    ADJR Act

s3(1) – a decision = a decision of an administrative character made under an enactment, other than a decision by the Governor General
s3(4) is a more straightforward test for standing

s3(4) –
(a) where the reference is to a person aggrieved by a decision includes a reference:
(i)    to a person whose interests are adversely affected by the decision; or
(ii)    in the case of a decision by way of the making of a report or recommendation- to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.
(b) the reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
 Although the concept of an 'aggrieved person' is not limited to persons who possess a legal interest it is necessary that the interest possessed must be more than a mere intellectual or emotional concern.  Right to Life v Dept of Human Services  (1994).

s5 –Grounds of review for a decision. This section specifies
(a) breach of the rules of natural justice
(b) non-observance of procedures required by law to be observed in connection with the making of the decision
(c) lack of jurisdiction to make the decision
(d) non-authorisation of  the decision by the enactment in pursuance of which it was purported to be made.
(e) improper exercise of power where the decision purports to be made in pursuance of a power conferred by an enactment. (includes relevant/irrelevant considerations, improper purpose, bad faith, acting under dictation, inflexible appl of policy, unreasonableness and uncertainty).
(f) error of law whether or not the error appears on the face of the record of the decision
(g) fraud:
(h) no evidence or other material to justify the making of the decision; and
(i) the fact that the decision was 'otherwise contrary to law."

S6  review for 'conduct engaged in' for the purpose of making a decision to which this act applies.  "conduct engaged in" – the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of injury or investigation.
S6(1)    provides for a direct challenge to conduct on procedural ground only- same grounds as in s5