4. Standing

The issue of standing — who is entitled to pursue remedies in court — primarily arises in cases with a public element, where a wider range of people, or the public generally, may have an interest.^[1]

Standing is generally not in issue in cases concerning private rights and interests. An implicit principle of the Australian legal system is that the holder of a private legal right has the option to determine whether or not that right should be enforced through the courts.^[2]

Unless standing has been expanded under legislation, the common law ‘special interest’ test applies. In the absence of standing a plaintiff cannot bring a claim and the court has no jurisdiction to hear it.

4.1 Special Interest Test

The general test for standing at common law, established in Australian Conservation Foundation Inc v Commonwealth (‘ACF’),^[3] requires an applicant to have a ‘special interest’ in the subject matter of the action. In finding that the applicant had no standing to maintain the action in ACF, Justice Gibbs (as his Honour then was) explained:^[4]

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty… A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

The special interest test maintains a focus on private rights and interests, in that litigants must demonstrate an interest greater than the public at large, creating difficulty for litigants seeking to bring cases in the public interest.

In the recent case of O’Donnell v Commonwealth of Australia (‘O’Donnell’),^[5] two of the applicant’s three causes of action — relating to the Commonwealth’s failure to disclose climate-related risks relating to certain exchange-traded Australian Government Bonds — were dismissed due to lack of standing. The Court found that there was insufficient evidence presented by the applicant to conclude that she had a ‘special interest’ in the declaratory and injunctive relief sought. Justice Murphy observed that while an emotional or intellectual interest in protecting the environment from the risks of climate change is not unworthy or illegitimate, ‘such an aim alone is insufficient to satisfy the test for standing’.^[6] Standing was not an issue in respect of the applicant’s third claim of misleading or deceptive conduct under the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) as injunctive relief is available to any person under the relevant statutory provisions.^[7]

4.2 Legislative Extension of Standing

Environmental litigation has been the site of many of the major battles in the development of standing rules. Various Commonwealth and state environment and planning laws (particularly in NSW) now extend standing to any person,^[8] or to individuals or groups that meet specified criteria.^[9] For example, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) extends standing for judicial review to environmental groups.^[10]

However, as discussed above, recent waves of climate litigation have moved outside environmental laws. While some are brought under other legislation with open standing,^[11] such as the misleading or deceptive conduct claims in O’Donnell, others must overcome the special interest test. The interrelated concepts of jurisdiction, standing and remedies must therefore be carefully considered when formulating a claim. Whether a plaintiff has sufficient special interest depends on ‘the nature and subject matter of the litigation’^[12] and the closeness of the plaintiff’s relationship to the subject matter in issue.

4.3 Open Standing for Public Interest?

The tension between standing criteria and public interest enforcement has been recognised by the courts. In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, the plurality (Gaudron, Gummow and Kirby JJ) said it was dangerous to attempt to define a precise formula for standing because the consequence ‘may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law’.^[13]

In a 1996 report, the Australian Law Reform Commission made a recommendation — subsequently rejected by the government — for a new standing test, according to which any person could commence public law proceedings unless the relevant legislation provides otherwise and/or the commencement of an action would unreasonably interfere with a private interest.^[14]

A more liberal or open public interest standing approach is taken in other jurisdictions. In South Africa, for example, open public interest standing is available under section 38 of the Constitution in relation to alleged infringements of a right in the Bill of Rights, which includes the right to an environment not harmful to health or wellbeing.

4.4 Legal Existence and the Rights of Nature

Standing has been described as a ‘screening device’^[15] or ‘filtering mechanism’,^[16] in that a denial of standing bars a plaintiff from obtaining a legal remedy without a conclusion having been reached on the merits of the case.

Legal existence is a related screening device, dictating which bodies are granted legal personhood and the accompanying rights.

Legal personhood has traditionally been associated with human persons and their representatives — for example, corporations. However, there is growing international momentum for the binary framing of legal personhood to be reconceptualised, including through extending rights to or recognising the legal personhood of the natural world.^[17] Ecuador in 2008 provided constitutional rights and protections to the environment and Bolivia subsequently passed similar laws to recognise the rights of Mother Earth. In 2017 New Zealand granted personhood status to the Whanganui River, arising from the negotiations of the Treaty of Waitangi.

The momentum of this movement is undoubtedly influenced by climate change, which forces an acknowledgement of our dependence and impact on nature. An expansion of legal existence to the natural world requires a fundamental shift in the human-centric focus of the law, which would have great impacts on climate litigation and the underlying issues and legal structures that give rise to it.