Onus v Alcoa (1981) 149 CLR 27

ONUS v. ALCOA OF AUSTRALIA LTD. (1981) 149 CLR 27

Administrative Law

COURT

High Court of Australia

Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6) and

Brennan(7) JJ.

HRNG

1981, March 3, 4; September 18. #DATE 18:9:1981

JUDGE1

September 18.

The following written judgments were delivered: -

GIBBS C.J. The appellants, Lorraine Sandra Onus and Christina Isabel

Frankland, have brought proceedings in the Supreme Court of Victoria for the

purpose of preventing the respondent, Alcoa of Australia Ltd. ("Alcoa"), from

carrying out on land in its occupation works which it is claimed will

interfere with aboriginal relics on that land. Such interference would, it is

claimed, be a breach of s. 21 of the Archaeological and Aboriginal Relics

Preservation Act 1972 (Vict.), as amended ("the Relics Act"). Section 2 of

that Act contains the following definition:

"'Archaeological relic' or 'relic' includes a relic pertaining to the

past occupation by the Aboriginal people of any part of Australia, whether or

not the relic existed prior to the occupation of that part of Australia by

people of European descent, and without affecting the generality of the

foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains

and anything belonging to the total body of material relating to that past

Aboriginal occupation of Australia, but does not include a body or the remains

of a body interred in a cemetery, burial ground or place of burial after the

year 1834, or a handiwork made for the purpose of sale."

Section 21 of the Relics Act provides as follows:

"A person who wilfully or negligently defaces or damages or otherwise

interferes with a relic or carries out an act likely to endanger a relic shall

be guilty of an offence against this Act."

By s. 28(2) of that Act a person who is guilty of an offence against the Act

is liable to a penalty not exceeding a thousand dollars or to imprisonment for

not more than three months or to both. The question for decision in the

present appeal is whether the appellants have standing to maintain the action.

(at p31)

2. Alcoa is a company which proposes to construct an aluminium smelter on

land which it occupies at Portland in western Victoria. Alcoa is obliged to

construct the smelter by an agreement made between that company and the State

of Victoria on 2 September 1980. The agreement has been ratified, validated,

approved and given the force of law by the Alcoa (Portland Aluminium Smelter)

Act 1980 (Vict.) ("the Agreement Act"). However, the agreement is subject to

certain conditions precedent, not all of which have yet been fulfilled. The

land on which the smelter is to be built contains relics of the former

aboriginal occupation of the area - particularly stone artefact scatters, i.e.

stone tools and manufacturing debris, usually on the sites of former

aboriginal workshops. Many of the scatters are in a very poor state of

preservation. There seems no doubt that these scatters are "relics" within the

Relics Act. The appellants, by their statement of claim, allege that Alcoa has

wilfully interfered with the said relics in breach of the provisions of s. 21

of the Relics Act and that Alcoa threatens and intends further to interfere

with the said relics over the whole or a substantial part of the said land by

constructing industrial works thereon. They claim a declaration that the said

relics are "relics" within the meaning of the Relics Act and an injunction

restraining Alcoa, its servants, agents or contractors from carrying out any

works upon the said land which would interfere with relics thereon. The

appellants applied on summons to the Supreme Court of Victoria for an

interlocutory injunction, and Alcoa similarly applied for an order that the

action be dismissed or perpetually stayed on the ground that it was an abuse

of the process of the Court and that it was frivolous and vexatious. The

applications came before Brooking J. who held that the appellants had failed

to make out a prima facie case either of a private right or of standing to sue

to prevent a contravention of s. 21. He dismissed the appellants' application

for an injunction, and on Alcoa's summons ordered that the action be

dismissed. An application for leave to appeal against the order dismissing the

action, and an appeal from the order refusing the interlocutory injunction,

were refused by the Full Court of the Supreme Court. The present appeal is

brought, by special leave, from that part of the order of the Full Court

whereby the application for leave to appeal was dismissed. (at p31)

3. According to the statement of claim the appellants are descendants from

inhabitants of Australia in prehistoric ages and members of the

Gournditch-jmara aboriginal people and are custodians of relics of the

Gournditch-jmara people according to their laws and customs. It is further

alleged that the relics referred to in the statement of claim relate to the

occupation of the land in question by the Gournditch-jmara aboriginal people

and are relics of which the appellants are custodians according their laws and

customs. It appears from the evidence that the Portland area was inhabited in

prehistoric times by a group of aboriginal people known as the

Gournditch-jmara people and that descendants of those people, who still live

in and around Portland, form "a tightly knit ethnic community in the area".

One of the appellants, Mrs. Onus, said in evidence that she had had an

association with the relics on the land at Portland for about ten years. When

asked what she had done in relation to the relics during that period, she

replied:

"Well, that particular area where the smelter - not just where the

smelter is going to be, but the land that Alcoa has purchased, has been land

that my people have frequented. It is near land that has not been or is not

frequented by other members of the community so much as the Gournditch Mara

(sic) people. We have been free to more or less do what we like there: camp

there, teach our children our culture, explain to them what different parts of

the land are and how important different sites are on that area; we go fishing

there, we go hunting there."

Her evidence then continued:

"Are the relics which are to be found at the sites there of significance

in terms of the use which you have made of this area of land? . . . They are

significant because they are part of our culture. It is an area that we well

know because, as I have just stated, it is educational for our children.

. . .

So far as the sites of the relics, do they have any spiritual

significance to you? . . . The land as it stands is of spiritual significance

to aboriginal people, that area particularly because we frequent it, and we

are very much aware of what went on there with our people.

And is there any significance in the fact that these sites were sites

where your ancestors lived in antiquity? . . . Very much so. It is a very deep

thing with aboriginal people."

In cross-examination she said that all the descendants of the Gournditch-jmara

people have a responsibility to ensure that any relics on the aboriginal

sites, sacred or otherwise, are protected, and that all the members of the

tribal group were just as much entitled to be custodians of the relics as were

the appellants; the only thing that was special about the position of the

appellants was that they were spokeswomen for the group. She was not

cross-examined in an attempt to elicit information as to the nature of the

laws and customs according to which she was one of the custodians of the

relics, or to elaborate on the use made of the relics in or on the land. (at

p33)

4. The first submission advanced on behalf of the appellants was that the

Relics Act was passed for the benefit or protection of the aboriginal people

as a class, and that any member of the class could sue to enforce the

prohibitions contained in the Act, without the necessity of proving that

special damage had been suffered or that a special interest existed. A

consideration of the Relics Act shows that this argument cannot be sustained.

The object of that Act, as its title shows, is to make provision for the

preservation of archaeological and aboriginal relics. It is not clear that

there are in Australia relics that can properly be described as archaeological

that are not aboriginal, but since the definition of "relic" is not expressed

to be exhaustive it may be suggested that the Act refers to relics other than

aboriginal relics; it is not necessary to decide this question, but it may be

assumed, in favour of the appellants' argument on this point, that the Act

refers to aboriginal relics only. By s. 5 of the Act there is established a

committee, called the Archaeological Relics Advisory Committee, whose

functions are to consider and advise the Minister on all matters it thinks

necessary in relation to archaeological relics and the preservation of those

relics (s. 7). The Committee consists of twelve members. One, the Director of

Conservation or his nominee, is the chairman, and -

"eleven shall be persons appointed by the Governor in Council -

(i) one being the Director of the National Museum of Victoria or his

nominee;

(ii) one being a member of the National Trust of Australia (Victoria);

(iii) one being a member of the Archaeological and Anthropological Society

of Victoria;

(iv) one being the Secretary for Lands or his nominee;

(v) one being a professional archaeologist from a Victorian university;

(vi) one being the Director of National Parks or his nominee;

(vii) one being the Chairman of the Forests Commission or his nominee;

(viii) one being a member of the Institute of Aboriginal Studies; and

(ix) three being Aborigines nominated by the Minister."

Counsel for the appellants attached some significance to the fact that three

members of the Committee were required to be aborigines, but it hardly seems

necessary to say that the fact that one-quarter of the members of this

Advisory Committee are aborigines is no indication that the Act was passed for

the benefit of a class comprising only aborigines. The composition of the

Committee suggests that it was intended that a wide range of public interests

should be reflected in its recommendations. By s. 9 the Governor in Council is

empowered to appoint in an honorary capacity inspectors and wardens, who are

given powers to enable them to assist in the administration and enforcement of

the Act: see ss. 12-14, 31. The Relics Act provides that in certain

circumstances land may be declared to be an archaeological area (s. 15(1)) but

no such proclamation may be made without the consent, if the land is private

land, of the owner and, if the owner is not the occupier, of the occupier (s.

15(2)). The consequences of proclaiming an archaeological area are that no

person may be within the area without the permission of an authorized person

(s. 17) and that all relics within the area shall be the property of the Crown

and under the protection of the Crown (s. 20). The National Museum of Victoria

is to be the official place of lodgment of relics which are the property of

the Crown (s. 20A(1)). By s. 18(1) it is provided as follows:

"Notwithstanding anything to the contrary in this Act the Minister may

compulsorily acquire any land other than land established as an aboriginal

reserve and on which aborigines are living when he is informed by the Advisory

Committee that there is a unique and irreplaceable relic on, in or under the

land which is in danger of loss or damage, has notified the owner of the land

in writing that he has been so informed, and has allowed time for an appeal to

be lodged . . . . "

The Minister is given various powers for the purpose of preserving relics: ss.

22, 25, 26. A person who discovers a relic shall forthwith report the

discovery to the Director or to an inspector or warden unless he has

reasonable cause to believe that the relic is recorded in the register kept by

the Director; when any relic is discovered in the course of any construction

or excavation on any land, it shall be the duty of the person in charge of

such construction or excavation to report the discovery to the Director, and

the Director, if he considers the relic to be worthy of preservation, shall

take whatever action is necessary (s. 23). A person is not guilty of an

offence in picking up or collecting a portable relic exposed in or upon the

surface of land, but a person who knowingly picks up or collects a portable

relic must, inter alia, safeguard it from loss or damage and give notice to

the Director (s. 27). It will be seen from these provisions that the

enforcement of the Act has been entrusted to the ordinary agencies of

government, assisted by inspectors and wardens, and not left to

representatives of the aboriginal people. There is nothing in the Act that

confers any special rights or duties on the aboriginal people or any class of

them in relation to the relics which the Act intends shall be preserved. It is

true that s. 18 exempts from compulsory acquisition any land established as an

aboriginal reserve and on which aborigines are living, but this does not

evince a recognition that aborigines have a special position in relation to

relics on lands which are not established as aboriginal reserves, and even

land which is an aboriginal reserve may be proclaimed an archaeological area

under s. 15. The provisions of the Act as a whole show that the Act was passed

for the benefit of the public at large, with a view to the conservation of

relics which are regarded as being of interest and value not only to

aborigines but also to archaeologists and anthropologists and indeed to

Australians generally. It is quite impossible to hold that the Act confers any

private rights on aborigines or any class of them. (at p35)

5. The case is therefore one in which two private citizens who cannot show

that any right of their own has been infringed bring an action for the purpose

of restraining another private citizen (Alcoa) from breaking the criminal law

by acting in contravention of s. 21 of the Relics Act. The question is whether

they have standing to bring the action. If an attempt were made to frame an

ideal law governing the standing of a private person to sue for such a

purpose, it would be necessary to give weight to conflicting considerations.

On the one hand it may be thought that in a community which professes to live

by the rule of law the courts should be open to anyone who genuinely seeks to

prevent the law from being ignored or violated. On the other hand, if standing

is accorded to any citizen to sue to prevent breaches of the law by another,

there exists the possibility, not only that the processes of the law will be

abused by busybodies and cranks and persons actuated by malice, but also that

persons or groups who feel strongly enough about an issue will be prepared to

put some other citizen, with whom they have had no relationship, and whose

actions have not affected them except by causing them intellectual or

emotional concern, to very great cost and inconvenience in defending the

legality of his actions. Moreover, ideal rules as to standing would not fail

to take account of the fact that it is desirable, in an adversary system, that

the courts should decide only a real controversy between parties each of whom

has a direct stake in the outcome of the proceedings. The principle which has

been settled by the courts does attempt a reconciliation between these

considerations. That principle was recently stated in Australian Conservation

Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 . 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 (1980)

146 CLR, at pp 530-531, 537, 547-548 . The rule is obviously a flexible one

since, as was pointed out in that case, the question what is a sufficient

interest will vary according to the nature of the subject matter of the

litigation. (at p36)

6. It seems to me that the appellants have an interest in the subject matter

of the present action which is greater than that of other members of the

public and indeed greater than that of other persons of aboriginal descent who

are not members of the Gournditch-jmara people. The appellants, and other

members of the Gournditchjmara people, would be more particularly affected

than other members of the Australian community by the destruction of the

relics. The appellants claim that, in common with other members of the

Gournditch-jmara people, they are the custodians of the relics according to

the laws and customs of those people. They claim that the relics are of

cultural and spiritual importance to them, and that they have used the relics

to teach their children the culture of their people. It is true that these

allegations were, as Brooking J. described them, vague and general. One might

be permitted to view some of them with a little scepticism. But counsel for

Alcoa had the opportunity to cross-examine Mrs. Onus with a view to showing

that there was no aboriginal law or custom which gave the appellants any

rights or duties as custodians, and to establishing to what extent, if at all,

the relics had been put to use. This opportunity was not taken. Counsel for

Alcoa very properly informed us that he did not rely on the paucity of the

appellants' evidence; quite rightly, he did not want the case to be decided on

the ground that the evidence was insufficient to make out standing if it

appeared that the appellants might have established that they had standing if

further evidence had been produced. (at p36)

7. The main reason advanced in the Supreme Court for denying standing to the

appellants was that their interest was entirely emotional and intellectual.

Starke J. relied upon statements by members of this Court in Australian

Conservation Foundation Inc. v. The Commonwealth, including the following

passage from my own judgment in that case (1980) 146 CLR, at p 530 :

"I would not deny that a person might have a special interest in the

preservation of a particular environment. However, an interest, for present

purposes, does not mean a mere intellectual or emotional concern. A person is

not interested within the meaning of the rule, unless he is likely to gain

some 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. A belief, however strongly felt, that the law generally, or a

particular law, should be observed, or that conduct of a particular kind

should be prevented, does not suffice to give its possessor locus standi."

Mason J. (1980) 146 CLR, at p 548 agreed with the concluding sentence of this

statement, and Stephen J. (1980) 146 CLR, at p 539 expressed a similar view

when he said that "an individual does not suffer such damage as gives rise to

standing to sue merely because he voices a particular concern and regards the

actions of another as injurious to the object of that concern." Of course, a

special interest is none the less sufficient if it is accompanied by an

emotional or intellectual concern. The present is not a case in which a

plaintiff sues in an attempt to give effect to his beliefs or opinions on a

matter which does not affect him personally except in so far as he holds

beliefs or opinions about it. The appellants claim not only that their relics

have a cultural and spiritual significance, but that they are custodians of

them according to the laws and customs of their people, and that they actually

use them. The position of a small community of aboriginal people of a

particular group living in a particular area which that group has

traditionally occupied, and which claims an interest in relics of their

ancestors found in that area, is very different indeed from that of a diverse

group of white Australians associated by some common opinion on a matter of

social policy which might equally concern any other Australian. Counsel for

Alcoa sought to meet the claim that the appellants and the other members of

the Gournditch-jmara community put the relics to actual use by submitting that

no relief could be given to them which would enable them to continue to use

the relics. Alcoa, he said, has the right to occupy, and indeed owns, the

land; the appellants have no right to resort to the land and therefore could

gain no advantage from success in the present action. There is therefore, he

submitted, no sufficient relationship between the facts relied on as giving

standing and the relief sought in the action. With all respect this argument,

although plausible, is unconvincing. If the relics are preserved, the

appellants will at least have a possible opportunity to have access to them.

If the relics are portable, no difficulty will arise in that respect. Even if

it is right to conclude that it is the relics in and on the ground that have

their special value for the appellants, it cannot be assumed that if the

relics are not destroyed the appellants will be denied access to them. It is

common experience that in places all over the world interested members of the

public are afforded an opportunity to obtain access to relics of historical

interest, including ancient buildings, notwithstanding that they are situated

on private property. There is no evidence, and it cannot be assumed, that such

an opportunity would be denied to the Gournditch-jmara people. On the other

hand, if the relics are damaged or destroyed, there will be no possibility

that the Gournditch-jmara people will be able to make use of them; they will

suffer an immediate and permanent disadvantage. In any case, once the

appellants show that they have a sufficient interest, they do not lose

standing to bring an action because the only remedy which they may obtain may

afford less than complete relief. (at p38)

8. It is unfortunate that the question of the appellants' standing was

determined as a preliminary issue in the present case, particularly on such

scanty material. To say that is of course no criticism of the learned primary

judge who had to deal with Alcoa's application. The question whether a

plaintiff has standing to bring an action is one that logically arises before

the question whether he is entitled to succeed in the action. However, as I

pointed out in Robinson v. Western Australian Museum (1977) 138 CLR 283, at p

302 , the court has a discretion whether or not it should determine the

question whether the plaintiff has a sufficient interest to bring the

proceedings before it proceeds to determine the merits of the case. It is

obvious that there are considerable obstacles in the way of the appellants'

success in the present case. The question whether the work of construction

proposed by Alcoa would amount to a breach of s. 21 is itself one which is

likely to raise controverted issues of fact and law. Moreover, once the

conditions precedent specified in the agreement scheduled to the Agreement Act

have been fulfilled it will be a serious question whether that Act does not

pro tanto override the provisions of the Relics Act and permit, and indeed

require, Alcoa to proceed with the necessary work even if it would otherwise

have amounted to a contravention of s.21 of the Relics Act. These questions,

however, cannot be decided at the present stage of the proceedings. We are not

called upon to consider whether we should exercise a discretion to allow the

appellants to proceed. The question for our decision is whether it was right

to hold that they lacked standing to bring the action and for that reason to

dismiss the action. For the reasons given, in my opinion it should be held

that no case for a dismissal or stay of the action has been made out. (at p39)

9. I would allow the appeal, and order that Alcoa's application for a

dismissal or perpetual stay of the action be refused. I would remit the action

to the Supreme Court of Victoria for further hearing and determination. (at

p39)

JUDGE2

STEPHEN J. The facts of this case appear in other judgments. The sole issue

for this Court is the standing of the appellants to bring their proceedings.

They support standing upon two grounds, the first of which relies upon the

terms of the Archaeological and Aboriginal Relics Preservation Act 1972

(Vict.), as amended. (at p39)

2. That Act does not, in express terms, confer upon the appellants any

standing. However, it was argued that an examination of its provisions

discloses that it was enacted primarily for the benefit of the aboriginal

population of Victoria, viewed as a class; that it seeks to preserve for

aborigines their ancestral relics. This, it was said, suffices to confer

standing upon the appellants, as Victorian aborigines, to seek injunctive

relief so as to prevent threatened relics. (at p39)

3. I do not regard the Act in that light. Its long title seems to me aptly

and fully to describe its nature: it is "An Act to make Provision for the

Preservation of Archaeological and Aboriginal Relics". Thus its concern is

with remains of the past generally, not merely with aboriginal remains, and I

think that it seeks to preserve them in the interests of the Victorian

community generally and not of any sub-group within that community. The terms

of the Act show this to be so. It approaches the task of preservation by

providing for archaeological areas (s. 15), which persons may not enter

without prior permission (s. 17); all relics within such areas are the

property of the Crown and under its protection (s. 20). The National Museum of

Victoria is made the official place of lodgment of such relics (s. 20A(1)).

All portable relics the property of the Crown are to be entrusted to the care

of the Director of the Museum and to be lodged in the Museum unless the

Minister otherwise determines (s. 20A(2)). By s. 10 the Director of

Conservation is empowered to arrange for the construction in archaeological

areas of buildings and of roads or trails "to accommodate the public or to

facilitate administration" and is required to "develop an educational

programme and service for the purpose of making available to the public facts

and information" about relics and about archaeological areas (emphasis added).

(at p39)

4. The Act of course provides for much else, none of it, however, suggesting

that relics are to be preserved in the interests of any particular class. The

above provisions, on the other hand, disclose a legislative concern in their

preservation for the benefit of the community at large and are largely

inconsistent with their preservation especially for the benefit of the

aboriginal community. (at p40)

5. There is nothing in the substantive provisions of the Act which would

confine relics or archaeological areas to those connected with aboriginal

occupation of the country. It was contended that the definition section of the

Act, s. 2, had this effect. It defines "archaeological relic" or "relic" as

follows:

"'Archaeological relic' or 'relic' includes a relic pertaining to the

past occupation by the Aboriginal people of any part of Australia, whether or

not the relic existed prior to the occupation of that part of Australia by

people of European descent, and without affecting the generality of the

foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains

and anything belonging to the total body of material relating to that past

Aboriginal occupation of Australia, but does not include a body or the remains

of a body interred in a cemetery, burial ground or place of burial after the

year 1834, or a handiwork made for the purpose of sale".

Unlike all but two of the other thirteen definitions, in s. 2, those of "Sale"

and of "This Act", this definition takes the inclusive, not the exclusive,

form. In those other two cases it is clear enough why the inclusive form is

used: an enlarged meaning is thereby given to "sale" while its ordinary

meaning is left unaffected; likewise with the definition of "This Act", which

speaks for itself: it reads "'This Act' includes the regulations". The third

occasion for the use of the inclusive form of definition, in the definition of

"archaeological relic" or "relic", seems no less deliberate; it ensures that,

despite the lack of antiquity of those aboriginal relics which have come into

existence since European settlement, they too will qualify as relics. It also

removes any doubts that might exist concerning the full reach of "relics"

according to popular usage; the defined meaning will extend to aboriginal

middens and skeletal remains as well as to artefacts and the like. So

understood, this inclusive form of definition in no way confines "relics" to

those that are aboriginal. Present knowledge of course suggests that, apart

from the few known relics left behind by Indonesian fishermen and by early

European explorers, archaeological remains in this country pre-dating white

settlement will all be aboriginal. But this is only a reflection of the past

isolation of this continent, a circumstance which makes no less real the

interest of Australian legislatures in the preservation of such remains for

the benefit of the entire present-day Australian community. (at p40)

6. The appellants also placed some reliance upon the terms of s. 18(1) and

upon the particular constitution of the Archaeological Relics Advisory

Committee which the Act creates. As to each of these submissions I have

nothing to add to what is said in the judgments of the Chief Justice and of

Wilson J. It follows that I agree with their conclusion that the provisions of

the Act cannot be relied upon by the appellants as supporting standing to sue.

(at p41)

7. For their second ground of standing the appellants rely upon what was said

by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109 , as

recently expanded and applied by members of this Court and especially by Gibbs

J., in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146

CLR 493 : the appellants claim to have a "special interest in the subject

matter of the action" - see per Gibbs J. in the A.C.F. Case (1980) 146 CLR, at

p 527 . I regard that ground of standing as having been made out by the

evidence in this case, sparse though it is at this stage. That evidence has

been reviewed in other judgments and I agree with the conclusion in this

regard arrived at by the Chief Justice and by Wilson J. (at p41)

8. In saying this I wish to add three observations. First, whatever may be

thought to be the need for development in this area of the law, the present

appeal provides no occasion for it. In this case the contentions of the

parties call for no reconsideration of the present law: the appellants need

invoke no new principle in order to establish their right to sue; the

respondent urges no new principle but instead contends that the application of

existing law supports its denial of the appellants' standing to sue. Moreover

it may be that any general development of the law relating to standing to sue

should be left to legislative action, prompted by law reform agencies. Any

significant changes will necessarily involve the weighing of important

considerations of policy; different solutions may be appropriate in different

areas of the law or where the remedies sought by plaintiffs differ; there

exists considerable diversity in the recommendations which have emerged to

date from agencies in the common law world regarding desirable reforms. All

this points towards deliberate legislative action rather than judicial

innovation. (at p41)

9. Having said this I should say that I do not regard the existing state of

the law to be that the possession of intellectual or emotional concern is any

disqualification from standing to sue. On the contrary, it will be but rarely

that a person having a special interest in the subject matter of the action

which he has instituted does not also possess at least a strong intellectual

and perhaps also a strong emotional concern with that subject matter. What is

more, the absence of mere material interest in that subject matter, in the

sense of property or possessory rights, will not, as the law now stands, be in

itself any bar to standing; this the present case attests. (at p42)

10. Thirdly, the distinction between this case and the A.C.F. Case is not to

be found in any ready rule of thumb, capable of mechanical application; the

criterion of "special interest" supplies no such rule. As the law now stands

it seems rather to involve in each case a curial assessment of the importance

of the concern which a plaintiff has with particular subject matter and of the

closeness of that plaintiff's relationship to that subject matter. The present

appellants are members of a small community of aboriginal people very long

associated with the Portland area; the endangered relics are relics of their

ancestors' occupation of that area and possess for their community great

cultural and spiritual significance. While Europeans may have cultural

difficulty in fully comprehending that significance, the importance of the

relics to the appellants and their intimate relationship to the relics readily

finds curial acceptance. It is to be distinguished, I think, and will be

perceived by courts as different in degree, both in terms of weight and, in

particular, in terms of proximity, from that concern which a body of

conservationists, however sincere, feels for the environment and its

protection. Courts necessarily reflect community values and beliefs, according

greater weight to, and perceiving a closer proximity to a plaintiff in the

case of, some subject matters than others. The outcome of doing so, however

rationalized, will, when no tangible proprietary or possessory rights are in

question, tend to be determinative of whether or not such a special interest

exists as will be found standing to sue. (at p42)

11. The recent decision of their Lordships in Lonrho Ltd. v. Shell Petroleum

Co. Ltd. (No. 2) (1982) AC 173 was given some time after the hearing of

argument in this case. Although that decision refers to Boyce v. Paddington

(1903) Ch 109 , it seems to me to decide nothing about the meaning and

application of the passage from the judgment of Buckley J. which was expanded

and applied by this Court in the A.C.F. Case, the passage in which his

Lordship spoke of special damage peculiar to the plaintiff. As Lord Diplock

pointed out (1982) AC, at p 186 , the meaning and application of that passage

will only arise if there has first been created by the statute in question "a

legal right to be enjoyed by all of Her Majesty's subjects who wish to avail

themselves of it". As his Lordship went on to say, the legislation enforcing

the sanctions orders there in question created no legal right but, on the

contrary, withdrew a previously existing right. Accordingly his Lordship never

came to consider what might be involved in Buckley J.'s concept of special

damage peculiar to the plaintiff: this may explain how it is that Lord Diplock

in describing that concept (36) did so by reference to two rather different

phrases, first that employed by Brett J. in Benjamin v. Storr (1874) LR 9 CP

400 and secondly that used by Buckley J. almost thirty years later. (at p43)

12. I would allow this appeal, refuse the respondent's application for

dismissal or stay of the action and remit the action to the Supreme Court of

Victoria. (at p43)

JUDGE3

MASON J. As other members of the Court have shown, this case is clearly

distinguishable from Australian Conservation Foundation Inc. v. The

Commonwealth (1980) 146 CLR 493 . The relics here have great cultural and

spiritual significance for the Gournditch-jmara community. The members of that

community are the guardians of the relics according to their laws and customs

and they use the relics. I agree with Gibbs C.J. in thinking that in these

circumstances the appellants have a special interest in the preservation of

the relics, sufficient to support locus standi. (at p43)

2. I would allow the appeal, and order that Alcoa's application for a

dismissal or perpetual stay of the action be refused. I would remit the action

to the Supreme Court of Victoria for further hearing and determination. (at

p43)

JUDGE4

MURPHY J. The appellants, members of the Gournditch-jmara Aboriginal people,

sought orders in the Supreme Court of Victoria against the respondent based on

s. 21 of the Archaeological and Aboriginal Relics Preservation Act 1972

(Vict.). (at p43)

2. The only issue in this appeal is whether the appellants have standing to

bring their claim against the respondents. The Law Reform Commission defines

"standing" as "the legal entitlement of a person to invoke the jurisdiction of

the court in a particular case" (Discussion Paper No. 4, "Access to the Courts

- I Standing: Public Interest Suits"). Standing focuses on the parties seeking

to get their complaint before the court, not on the issues they wish to have

the court consider (Flast v. Cohen (1968) 392 US 83, at p 99 (20 Law Ed 2d

947, at p 961) ). Denial of standing does not deny merit in a plaintiff's

legal claims but denies the plaintiff the right to have those claims

adjudicated. (at p44)

3. Standing is a judicial invention. In Baker v. Carr (1962) 369 US 186, at p

204 (7 Law Ed 2d 663, at p 678) , the court considered that "the gist of the

question of standing" is whether the plaintiff has "alleged such a personal

stake in the outcome of the controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which the court so largely

depends for illumination of difficult constitutional questions". The test is

not limited to constitutional cases. In Australian Conservation Foundation

Inc. v. The Commonwealth (1980) 146 CLR, at pp 528-529 Gibbs J. stated that

"the broad test of special interest" in the subject matter of the action is

the proper one to apply in Australia and that this appears to be similar to

the test adopted in the United States. (at p44)

4. It is sufficient for standing that a plaintiff have an interest exceeding

that of members of the public generally in preventing breach of a public right

or in securing the performance of a public duty. The interest need not be

peculiar to the plaintiff. It is enough that the plaintiff's interest, even if

many others also have it, is not the same as that of members of the public

generally. A legal interest is not necessary to establish standing; it need

not be proprietary; a cultural or other interest may suffice. (at p44)

5. Standing in the sense of a special interest in the plaintiff over that of

members of the public generally does not seem to be necessary for the exercise

of judicial power. There are numerous unquestioned examples of exercise of

judicial power at the instance of persons with no such interest, for example

private criminal prosecutors, strangers in applications for writs of

prohibition. (at p44)

6. In practice, questions of standing are often brushed aside if a court

considers that the issue of substance should in the public interest be

settled, particularly if it seems clear that the plaintiff will lose on the

merits. Often, however, where a plaintiff seeks to have litigated an issue

which is awkward because it questions dominant social institutions or

relationships, standing looms large. (at p44)

7. Restrictive rules of standing deny access to justice. (See The Law Reform

Commission, "Standing: Public Interest Suits.") In other cases I have

expressed the belief that the court should adopt a liberal view on standing

and that several objections to allowing citizens wide access to the courts

have no merit (see Robinson v. Western Australian Museum (1977) 138 CLR 283 ;

Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338 (the A.A.P. Case);

Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493 ;

Attorney-General (Vict.); Ex rel. Black v. The Commonwealth (1981) 146 CLR 559

("the D.O.G.S. Case")). (at p45)

8. The Archaeological and Aboriginal Relics Preservation Act 1972 is "An Act

to make provision for the Preservation of Archaeological and Aboriginal

Relics". "Archaeological relic" or "relic" is defined to include "a relic

pertaining to the past occupation by the Aboriginal people of any part of

Australia . . . " (s. 2). Section 21 of the Act provides:

"A person who wilfully or negligently defaces or damages or otherwise

interferes with a relic or carries out an act likely to endanger a relic shall

be guilty of an offence against this Act." (at p45)

9. The Gournditch-jmara aboriginal people were the traditional inhabitants of

the area which includes the site on which the respondents plan to build an

aluminium smelter; the site contains many relics within the meaning of the

Act. The relics are those of the appellants' ancestors and thus have special

significance for them. Also in their culture they are custodians of the

relics. The appellants allege that the respondent has wilfully interfered with

relics on the construction site and unless restrained will interfere with

other relics on the site. For the purposes of this appeal the assumption

should be made that the conduct sought to be restrained is unlawful. The

appellants have a special interest in the enforcement of the Act and the

preservation of their ancestors' relics. This is a special interest sufficient

for standing. (at p45)

10. In the Supreme Court of Victoria both Brooking J. and the Full Court

(Starke, Kaye and Jenkinson JJ.) denied the appellants standing. They

considered that the relationship of descent which gave to the relics their

significance for the appellants was not enough to invest the beliefs and

concerns which each appellant has about those material objects with a value

which came within the test of "a special interest in the subject matter of the

action". Jenkinson J. stated that "some human biological relationships have

grave legal consequences of general kinds, because of the fundamental

importance of those relationships in Western European Judeo-Christian culture.

But the descent of the appellants from those whose relics lie at Portland is

not in my opinion such a relationship as a court administering the common law

can, without legislative direction or encouragement, regard as conferring that

special interest." The respondent relied on those statements in this Court.

(at p45)

11. Interests sufficient to found standing are not confined to those which

arise out of relationships which are fundamentally important in what was

described as "Western European Judeo-Christian culture". Australia is a nation

composed of peoples deriving from a variety of cultures, which are not

restricted to Western European. Our people also adhere to a variety of

religions many of which are not "Judeo-Christian", and many have no religion.

"Western European Judeo-Christian culture", if there is such a culture, has no

privileged status in our courts. Aboriginal culture is entitled to just as

much recognition. If a cultural or religious interest founded on

"Judeo-Christian Western-European" traditions is enough to establish standing,

then a cultural or religious interest founded on aboriginal tradition is also

enough. There is no justification for using "standing" to introduce religious,

racial or cultural discrimination to the courts. (at p46)

12. The appellants have standing and the appeal should be allowed. (at p46)

JUDGE5

AICKIN J. This is an appeal by special leave from a decision of the Full

Court of the Supreme Court of Victoria which upheld the decision of Brooking

J. that the appellants' application for an interlocutory in injunction

restraining the respondent (Alcoa), its servants and agents from interfering

with any "relics" as defined by the Archaeological and Aboriginal Relics

Preservation Act 1972 (Vict.), as amended ("the Act") on the respondent's land

be dismissed and in which he also ordered that the action be struck out on the

ground that the appellants lacked locus standi and any private right in

relation to the subject matter of the proceedings. The Act is entitled "An Act

to make Provision for the Preservation of Archaeological and Aboriginal

Relics". (at p46)

2. On the hearing of the appeal in this Court the only matter dealt with was

the standing of the plaintiffs to maintain the proceedings, there being no

appeal from the dismissal of the application for an interlocutory injunction.

(at p46)

3. Because the application for an interlocutory injunction in the Supreme

Court was heard at the same time as the application to strike out the

statement of claim and dismiss the action, the question of the locus standi of

the appellants was dealt with not simply upon the basis of the statement of

claim (to which I refer below) but in the light of such facts as were given in

evidence in support of the application for an interlocutory injunction, both

on affidavit and orally, which threw some additional light on the factual

position. The additional matters are set out in the judgment of Starke J. in

the Full Court of the Supreme Court as well as in the judgment of Brooking J.

It is however not necessary to set them out in any detail. The plaintiffs

alleged that they are descendants of the inhabitants of Australia in

prehistoric times and are members of the Gournditch-jmara aboriginal people

who had formerly lived in what is now the Portland area in Victoria. They said

that they and all other members of that tribe are custodians of the relics of

those aboriginal people according to their laws and customs. They alleged that

land in the vicinity of Portland occupied by the defendant contains numerous

"relics" within the meaning of the Act and that such relics relate to the

occupation of the land by the Gournditch-jmara people. They further alleged

that contrary to the provisions of s. 21 of the Act the respondent has

wilfully interfered with the relics and that it threatens and intends to

interfere with the relics by constructing industrial works on the land. It was

said in evidence that the relics were of significance to the plaintiffs

"because they are part of our culture. It is an area that we well know

because, as I have just stated, it is educational for our children." It was

not alleged that the relics were sacred in any sense of the term but that they

were relics within the meaning of the Act and included debris resulting from

the making of stone artefacts as well as stone tools and shell middens. It was

also said by the plaintiffs that they and other members of the tribe used the

land, or had used the land, for teaching their children "our culture" in the

course of camping on the land and fishing and hunting. (at p47)

4. It does not clearly appear at what period of time this use took place and

what was the condition or ownership of the land during the time that the

individual plaintiffs used it in that manner. It does not appear whether the

land was used for agricultural or pastoral purposes, but it was described in

evidence as being covered with thick scrub. It appears from the agreement set

out in the schedule to the Alcoa (Portland Aluminium Smelter) Act 1980 (Vict.)

that some of it was Crown land, including land surrendered or to be

surrendered to the Crown by the Portland Harbor Trust Commissioners, and that

the State undertook to sell such land to Alcoa. Under that agreement the State

undertook to procure the closing of various roads and to sell to Alcoa the

land on which such roads were constructed or set out and to facilitate the

undertaking of various works by Alcoa. (at p47)

5. The Alcoa (Portland Aluminium Smelter) Act ratified an agreement dated 2

September 1980 made between the State of Victoria and Alcoa. Under that

agreement Alcoa agreed to construct an aluminium smelter and to use its best

endeavours to commence continuous production at such smelter by a specified

date and to ensure that necessary additional housing for employees of the

company was made available. The State assumed a large number of miscellaneous

obligations under cl. 5 of Div. B of Pt II of the agreement, which included

the granting of industrial development leases, selling land to Alcoa and

ensuring that various permits and licences under various Acts would be granted

for the construction and use of pipelines, conveyor belts, construction and

loading facilities. Notwithstanding the date of the agreement and the fact

that the Alcoa (Portland Aluminium Smelter) Act has come into operation, cl. 3

of Pt I of the agreement scheduled to that Act provides that the Part of the

agreement which sets out the obligations of Alcoa and of the State shall not

come into operation until the first day of the month following the date upon

which the last of a number of specified events occurs. We were informed in the

course of the hearing that as at that day three of the nine conditions

precedent had not yet been satisfied, namely, the making of specified

agreements with governmental authorities. It appeared from the material before

the trial judge that notwithstanding that these events had not yet occurred

work on the site had commenced. (at p48)

6. The term "Aborigine" is defined in s. 2 of the Act as meaning "inhabitant

of Australia in pre-historic ages or a descendant from any such person". The

term "Archaeological relic" or "relic" is defined to include "a relic

pertaining to the past occupation by the Aboriginal people of any part of

Australia, whether or not the relic existed prior to the occupation of that

part of Australia by people of European descent, and without affecting the

generality of the foregoing, includes any Aboriginal deposit, carving,

drawing, skeletal remains and anything belonging to the total body of material

relating to that past Aboriginal occupation of Australia, but does not include

a body or the remains of a body interred in a cemetery, burial ground or place

of burial after the year 1834, or a handiwork made for the purpose of sale".

(at p48)

7. Section 21 of the Act is as follows:

"A person who wilfully or negligently defaces or damages or otherwise

interferes with a relic or carries out an act likely to endanger a relic shall

be guilty of an offence against this Act." (at p48)

8. It was argued on behalf of the appellants that they had locus standi to

maintain their proceedings against Alcoa on two separate bases. The first

submission was that the Act was one for the benefit of Aborigines as a class

and that it gave to every member of that class a private right sufficient to

enable him or her to maintain an action directed to the preservation of

relics, either relics generally or relics connected with his own tribal

ancestors. It was not altogether clear which proposition was being put

forward. It is however of no present significance because it is in my opinion

clear that neither proposition could be maintained. Wilson J. in his reasons

for judgment deals with this matter and I cannot usefully add to what he has

said or the reasons which he has given for regarding this submission as

untenable. (at p49)

9. The second submission was that the appellants had a special interest as

members of the Gournditch-jmara people in the relics of their own ancestors

and in particular in those which may be on or in the smelter site. It was

submitted that this interest was more than a mere intellectual or emotional

interest and was thus in a different category from the interest dealt with by

the Full Court in Australian Conservation Foundation Inc. v. The Commonwealth

(1980) 146 CLR 493 ("the A.C.F. Case"). That case is the most recent decision

of this Court dealing with the nature of an interest sufficient to support

proceedings which are directed to the enforcement not of private rights but of

public rights by persons other than the Attorney-General or those to whom he

has granted his fiat to commence proceedings in his name. The history of the

development of this branch of the law in Australia, England, Canada and the

United States is examined in the judgments in that case and also in the

earlier case of Robinson v. Western Australian Museum (1977) 138 CLR 283 . I

refer to those cases below. (at p49)

10. The classic formulation of the relevant principle is that of Buckley J.

in Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 :

"A plaintiff can sue without joining the Attorney-General in two cases:

first, where the interference with the public right is such as that some

private right of his is at the same time interfered with (e.g., where an

obstruction is so placed in a highway that the owner of premises abutting upon

the highway is specially affected by reason that the obstruction interferes

with his private right to access from and to his premises to and from the

highway); and, secondly, where no private right is interfered with, but the

plaintiff, in respect of his public right, suffers special damage peculiar to

himself from the interference with the public right." (at p49)

11. Buckley J. referred to a number of cases dealing with public nuisance and

applied the rule laid down in those cases to the case before him, i.e., one of

a threatened breach of a statute. The cases to which he referred show that it

had long been settled that, for an individual plaintiff to sue in respect of

public nuisance, he must, in the words of Kelly C.B. in Winterbottom v. Lord

Derby (1867) LR 2 Ex 316, at p 320 , show "a particular damage suffered by

himself over and above that suffered by all the Queen's subjects" or "some

damage peculiar to himself, his trade, or calling" (1867) LR 2 Ex, at p 322 .

The Court of Appeal (1903) 2 Ch 556 were disposed to regard the

Attorney-General as a necessary party and adjourned the hearing to enable the

plaintiff to communicate with him. He consented to be joined as an additional

plaintiff and the appeal proceeded on that basis. There was an appeal to the

House of Lords (1906) AC 1 but, as the Attorney-General was then a party, no

question of standing arose. Notwithstanding the doubts of the Court of Appeal

the decision of Buckley J. has been treated as stating the correct principles

for determining the standing of a plaintiff, at least until very recently. (at

p50)

12. I do not consider that the principle stated by Buckley J. conveyed or was

intended to convey that the damage suffered by the plaintiff must be unique.

The proper distinction is that drawn in one of the public nuisance cases which

he cited, i.e., Benjamin v. Storr (1874) LR 9 CP 400, at p 407 , where Brett

J. said:

"Winterbottom v. Lord Derby (1867) LR 2 Ex 316 was decided upon the same

ground; the plaintiff failed because he was unable to show that he had

sustained any injury other and different from that which was common to all the

rest of the public."

The same view had been expressed by Pollock C.B. in Chamberlaine v. Chester

and Birkenhead Railway Co. (1848) 18 LJ (Ex) 494, at p 496 where he said:

"Where a statute prohibits the doing of a particular act affecting the

public no person has a right of action against another merely because he has

done the prohibited act. It is incumbent on the party complaining to allege

and prove that the doing of the act prohibited has caused him some special

damage, - some peculiar injury beyond that which he may be supposed to sustain

in common with the rest of the Queen's subjects by an infringement of the law.

But where the act prohibited is obviously prohibited for the protection of a

particular party, there it is not necessary to allege special damage."

It is entirely consistent with those statements of principle that more than

one person may suffer "special damage" from the same public nuisance or the

same breach of a statutory provision. This view seems to me to run through all

the cases subsequent to Boyce's Case. (at p50)

13. The principle as formulated by Buckley J. was approved by the House of

Lords in London Passenger Transport Board v. Moscrop (1942) AC 332 . See per

Viscount Maugham (1942) AC, at p 345 where he said:

"What special interest has the respondent to enable him to bring this

action? We are not here concerned with anything but his civil right, if any,

under the section. I think it plain that there has been no interference with

any private right of his, nor has he suffered special damage peculiar to

himself from the alleged breach of the general prohibition as to certain acts

directed to local or public authorities contained in s. 6: see Boyce v.

Paddington Borough Council (1903) 1 Ch, at p 114 , and cases there cited. He,

therefore, could not sue without joining the Attorney-General."

In my opinion, his Lordship there used the term "special interest" in the

sense of the two bases upon which the respondent might have maintained his

action, i.e., interference with a "private right" or "special damage peculiar

to himself". With due respect I am unable to agree with the observation of

Gibbs J. in the A.C.F. Case (1980) 146 CLR, at p 527 that Viscount Maugham

regarded the expression "special damage peculiar to himself" as equivalent to

"having a special interest in the subject matter of the action". The sense in

which his Lordship used that term appears from the balance of the passage

quoted above, which reproduces the two bases stated by Buckley J. In my

opinion he used it as embracing those two categories. (at p51)

14. That however does not mean that the law has not developed since 1942 but

I cannot regard the developments as having begun in that decision of the House

of Lords or at any time prior thereto. (at p51)

15. I turn now to Robinson v. Western Australian Museum. In that case Barwick

C.J. said (1977) 138 CLR, at p 292 : "It is sufficient for present purposes

that he has claimed to be entitled either to salvage or compensation". (at

p51)

16. Gibbs J. said (1977) 138 CLR, at pp 301-302 :

"At the outset there arises the question whether the plaintiff has

standing to challenge the validity of the legislation. The defendant contends

that the plaintiff is in no different position from any other member of the

public, and has no sufficient interest in the determination of the questions

raised by his pleadings. The plaintiff asserts that he has a special interest

of a two-fold kind: the statutes, if valid, deny his right, as finder or

salvor, to the possession of the wreck, and destroy his claim to reimbursement

of salvage expenses. In my opinion the plaintiff had a special interest of

another kind in challenging the validity of the legislation. He had worked on

the wreck, and had recovered things of value from it, and was prevented by the

operation of the statutes from continuing to do so. In other words the

statutes prevented him from carrying on the activity in which he had been

engaged and thereby caused him possible pecuniary detriment; they interfered

with what was for him his trade or business. This is enough to entitle him to

challenge the validity of the legislation in so far as it prevents him from

continuing his former activities: Attorney-General (N.S.W.) v. Brewery

Employes Union of N.S.W. (1908) 6 CLR 469, at pp 491, 497-498, 519-520, 549

and British Medical Association v. The Commonwealth (1949) 79 CLR 201, at pp

257-258 ."

See also per Mason J. at pp. 327-329, esp. at pp. 327-328, where, speaking of

claims for a declaration of the invalidity of a statute, he said:

"Reflection on the considerations which underlie the rule do not provide

much assistance in defining the nature of the interest which a plaintiff must

possess in order to have locus standi. However, it does indicate that the

plaintiff must be able to show that he will derive some benefit or advantage

over and above that to be derived by the ordinary citizen if the litigation

ends in his favour. The cases are infinitely various and so much depends in a

given case on the nature of the relief which is sought, for what is a

sufficient interest in one case may be less than sufficient in another. Here

the plaintiff does not seek performance of a public duty; nor does he assert

that he will suffer special damage through interference with a public right -

cases which are notorious for their difficulties. Here the legislation, if it

is valid, deprives the plaintiff of a right of reimbursement which he would

otherwise have or be entitled to claim. It also imposes obligations upon him

to which he would not otherwise be subject. This is enought to support locus

standi in an action for a declaration of invalidity."

See also per Jacobs J., at p. 340, and per Murphy J., at pp. 344-345, where he

took a somewhat different view, but arrived at the same result. (at p52)

17. In the A.C.F. Case Gibbs J. referred to the decision of Buckley J. and

said (1980) 146 CLR, at p 527 : "However, 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'." I have

referred above to this view which, with respect, I cannot regard as expressed

in Moscrop's Case, but Gibbs J. also relied on Gouriet v. Union of Post Office

Workers (1978) AC 435 to which I refer below. In addition he examined the

Canadian and United States decisions and I do not need to go over that ground

again. I do not think that particular assistance can be obtained from those

decisions for present purposes. Gibbs J. rejected the contention that it is

sufficient to have an intellectual or emotional concern about the alleged

breach of a public duty and said (1980) 146 CLR, at pp 530-531 :

"I would not deny that a person might have a special interest in the

preservation of a particular environment. However, an interest, for present

purposes, does not mean a mere intellectual or emotional concern. A person is

not interested within the meaning of the rule, unless he is likely to gain

some 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. A belief, however strongly felt, that the law generally, or a

particular law, should be observed, or that conduct of a particular kind

should be prevented, does not suffice to give its possessor locus standi. If

that were not so, the rule requiring special interest would be meaningless.

Any plaintiff who felt strongly enough to bring an action could maintain it."

I respectfully agree with those observations. (at p53)

18. Stephen J., after quoting the passage from the judgment of Buckley J.

which I have set out above, said (1980) 146 CLR, at p 538 :

"It is his Lordship's second limb which is of significance in the

present case. It deals with those cases in which 'no private right is

interfered with'. In such cases, according to his Lordship, a private

plaintiff has standing only if he suffers 'special damage peculiar to himself

from the interference with the public right'. The private remedy arises

because of infringement of the public right but is dependent upon the

suffering of special damage peculiar to the plaintiff. The principle stated in

Boyce's Case was approved and relied upon by Viscount Maugham in London

Passenger Transport Board v. Moscrop (1942) AC, at p 345 and the general rule

concerning the enforcement of public rights has very recently been restated by

their Lordships in Gouriet v. Union of Post Office Workers. There Lord

Wilberforce said (1978) AC, at p 477 , that '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'. It is to this general rule that

Boyce's Case states the exception, dependent upon special damage suffered by

an individual. Lord Wilberforce refers to this (1978) AC, at p 483 , as does

Viscount Dilhorne (1978) AC, at p 494 , Lord Edmund-Davies (1978) AC, at pp

506, 513 and Lord Fraser of Tullybelton (1978) AC, at p 518 ."

He further said:

"An individual does not suffer such damage as gives rise to standing to

sue merely because he voices a particular concern and regards the actions of

another as injurious to the object of that concern. That it is a body

corporate rather than an individual which seeks to do so cannot of itself

alter that position; the fact that that body corporate has as its main object

the voicing, and encouragement in the community, of just such a concern no

doubt ensures that what it does to give effect to such an object will not be

ultra vires; it will not otherwise improve its position. To say this is not

merely narrowly to rely upon the precise limits to standing suggested by what

was said by Buckley J. in Boyce's Case. Let it be assumed that the damage need

be no more than apprehended, that it need not be damage to a property right

recognized by the law and that it need not be so peculiar to the would-be

plaintiff that no-one else suffers it. Even so, the appellant clearly enough

fails to establish standing to sue on the basis of damage suffered by itself.

For it to succeed upon this particular ground the law must be that any person

with genuinely held convictions upon a topic of public concern thereby

acquires standing to enforce a public right to breach of which it takes

exception. That is not the current state of the law. To hold otherwise would

be radically to alter the existing law as it now stands."

Mason J. said (1980) 146 CLR, at pp 547-548 :

"I also agree with Gibbs J. that, apart from cases of constitutional

validity which I shall mention later, a person, whether a private citizen or a

corporation, who has no special interest in the subject-matter of the action

over and above that enjoyed by the public generally, has no locus standi to

seek a declaration or injunction to prevent the violation of a public right or

to enforce the performance of a public duty.

Depending on the nature of the relief which he seeks, a plaintiff will

in general have a locus standi when he can show actual or apprehended injury

or damage to his property or proprietary rights, to his business or economic

interests (as to which see New South Wales Fish Authority v. Phillips (1970) 1

NSWR 725 ) and perhaps to his social or political interests. Beyond making

this general observation, I consider that there is nothing to be gained from

discussing in the abstract the broad range of interests which may serve to

support a locus standi for, as I said in Robinson v. Western Australian Museum

(1977) 138 CLR, at pp 327-328 : 'The cases are infinitely various and so much

depends in a given case on the nature of the relief which is sought, for what

is a sufficient interest in one case may be less than sufficient in

another.'"

Murphy J. dissented. (at p54)

19. In Gouriet's Case Lord Wilberforce said (1978) AC, at pp 483-484 :

"On the other hand, the case in this House of London Passenger Transport

Board v. Moscrop (1942) AC 332 is clear and strong authority that where there

is no interference with a private right and no personal damage, declaratory

relief cannot be sought without joining the Attorney-General as a party (s.c.

as relator) - see pp. 344-345 per Viscount Maugham. In my opinion the law is

clear, and rightly so, that only the Attorney-General - either ex officio or

ex relatione can apply to the civil courts for injunctive relief against

threatened breaches of the law. The present proceedings are misconceived and

should have been struck out." (at p55)

20. Viscount Dilhorne said (1978) AC, at p 491 :

"An Attorney-General is not subject to restrictions as to the

applications he makes, either ex officio or in relator actions, to the courts.

In every case it will be for the court to decide whether it has jurisdiction

to grant the application and whether in the exercise of its discretion it

should do so. It has been and in my opinion should continue to be exceptional

for the aid of the civil courts to be invoked in support of the criminal law

and no wise Attorney-General will make such an application or agree to one

being made in his name unless it appears to him that the case is

exceptional."

His Lordship also said (1978) AC, at p 494 :

"The conclusion to which I have come in the light of the many

authorities to which we were referred is that it is the law, and long

established law, that save and in so far as the Local Government Act 1972,

section 222, gives local authorities a limited power so to do, only the

Attorney-General can sue on behalf of the public for the purpose of preventing

public wrongs and that a private individual cannot do so on behalf of the

public though he may be able to do so if he will sustain injury as a result of

a public wrong. In my opinion the cases establish that the courts have no

jurisdiction to entertain such claims by a private individual who has not

suffered and will not suffer damage." (at p55)

21. Lord Diplock (1978) AC, at pp 499-500 in a passage too long to quote

makes it clear that "the jurisdiction of a civil court to grant remedies in

private law is confined to the grant of remedies to litigants whose rights in

private law have been infringed or are threatened with infringement." (at p55)

22. Lord Edmund-Davies said (1978) AC, at p 506 :

"The point of cardinal importance that nevertheless remains is: assuming

that the Attorney-General was entitled to decide as he did, does that preclude

others who take a different view from seeking relief in the courts? For this

purpose, we have to suppose that Mr. Gouriet's private legal rights have not

been threatened or breached, and that although a public right is involved he

has not suffered, and does not apprehend, any special damage over and above

that sustained by the public at large." (at p55)

23. His Lordship also said (1978) AC, at p 513 :

"But the primary question is: Had the court jurisdiction to make them

(i.e. the declarations sought)? The answer given by the Attorney-General may

be simply stated and has a familiar ring: Whenever public rights are in issue,

the general rule is that relief may be sought only by, and granted solely at

the request of, the Attorney-General. There are certain exceptions to the

general rule, but none of them applies here."

His Lordship sets out certain statutory exceptions and concludes by saying:

"And there are the familiar common law exceptions to the general rule,

dealt with by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch,

at p 114 , where a private right has also been invaded or special damage

suffered." (at p56)

24. Lord Fraser of Tullybelton said (1978) AC, at p 518 :

"The general rule is that a private person is only entitled to sue in

respect of interference with a public right if either there is also

interference with a private right of his or the interference with the public

right will inflict special damage on him - Boyce v. Paddington Borough Council

(1903) 1 Ch 109 ." (at p56)

25. I find nothing in the speeches of their Lordships in Gouriet's Case to

suggest that they regarded the area in which private citizens might sue in

respect of breach of public rights as wider than as stated by Buckley J. or

that 'the expression "special damage" should be read as covering a larger and

less precise area than the words themselves suggest. (at p56)

26. It does not appear that it is necessary to show present pecuniary damage.

The "damage" sought to be prevented in Boyce's Case was the loss of

opportunity to obtain after the appropriate period a prescriptive right to

light. Such a right would be valuable, as would the prospect of obtaining it,

and the damage was clearly "peculiar to himself" in the relevant sense, but it

would not have been pecuniary damage. (at p56)

27. In the present case there is no pecuniary damage alleged, nor is there

any loss of rights to go on to the relevant land by reason of anything done by

the defendant. No claim was made in respect of any right to go on to the

relevant land. No particulars were given of the allegation in the statement of

claim that the plaintiffs had "suffered or will suffer special damage peculiar

to themselves". In such circumstances it could not be asserted that the

statement of claim disclosed no locus standi. (at p56)

28. The primary allegation according to the evidence, though it is not

pleaded, was that the plaintiffs and all other members of the tribe were

"custodians" or "joint custodians" of the relics according to the laws and

customs of the tribe. This statement made in oral evidence was not pursued or

elucidated in cross-examination or re-examination. This allegation if further

investigated may show something which may be capable of amounting to "special

damage" of a non-pecuniary nature which may bear out the pleading. It is

however impossible to say on the present evidence whether it does or not. On

an application to strike out a statement of claim and dismiss an action on the

basis of want of locus standi the defendant bears the onus of showing that the

facts as alleged or proved in evidence are incapable of sustaining a cause of

action. It appears to me that in the proceedings in the Supreme Court the

defendant failed to discharge that onus. It does not follow that upon a full

examination of the facts at the hearing of the action absence of locus standi

may not be established. An interlocutory decision will not prevent the matter

being investigated on all the material then available. (at p57)

29. It is not necessary for present purposes to consider whether the fact

that the alleged conduct of the defendant is a criminal offence under s. 21 of

the Act or the fact that the plaintiffs have concurrently with these

proceedings instituted criminal proceedings in respect of such alleged offence

will operate to deny the plaintiffs the remedy they seek. Those are matters

for the trial. (at p57)

30. Since I prepared the above reasons for judgment the report of the

decision of the House of Lords in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No.

2) (1982) AC 173 has come to hand. In that case Lord Diplock, with whose

speech all their Lordships agreed, referred to Benjamin v. Storr and Boyce v.

Paddington Borough Council (1903) 1 Ch 109 and said of Buckley J.'s second

category (1982) AC, at p 186 :

". . . while to come within the second case at all it has first to be

shown that the statute, having regard to its scope and language, does fall

within that class of statutes which creates a legal right to be enjoyed by all

of Her Majesty's subjects who wish to avail themselves of it. A mere

prohibition upon members of the public generally from doing what it would

otherwise be lawful for them to do, is not enough." (at p57)

31. The present case would appear not to satisfy that test. On the view which

I have taken the considerations to which his Lordship adverts would be a

matter for consideration on the trial of the action. His Lordship's test

appears to be narrower than that adopted by this Court in the A.C.F. Case. (at

p58)

32. In the result therefore I am of opinion that the appeal should be allowed

and the matter remitted to the Supreme Court of Victoria. (at p58)

JUDGE6

WILSON J. The sole point in this appeal by special leave from a unanimous

decision of the Full Court of the Supreme Court of Victoria (Starke, Kaye and

Jenkinson JJ.), on appeal from Brooking J., is whether the appellants have

locus standi to maintain their claim against the respondent. (at p58)

2. The respondent is the owner of land ("the land") in Portland, Victoria.

Under an agreement made with the State on 2 September 1980, and subsequently

ratified and approved by the Parliament of Victoria in the Alcoa (Portland

Aluminium Smelter) Act 1980, it has undertaken on the happening of the events

outlined therein to construct and operate an aluminium smelter on the land.

The Court was informed that this obligation has not yet crystallized. (at p58)

3. The appellants allege that they are members of the Gournditchjmara

community of aboriginal people and descendants of the tribe which, in

prehistoric times and subsequently, occupied land in and around the area which

is now known as Portland, including the land occupied by the respondent. They

say that in, on and under the land there is evidence of the occupation by

their ancestors in the form of many things which are relics within the meaning

of that term in the Archaeological and Aboriginal Relics Preservation Act 1972

(Vict.) ("the Act"). These things include, but are not limited to, stone tools

and debris resulting from the manufacture of stone artefacts. The statement of

claim alleges that in breach of the provisions of s. 21 of the Act the

respondent has wilfully interfered with these relics and threatens and intends

further to interfere with them over the whole or a substantial part of the

land by constructing industrial works thereon. They seek relief in the form of

a declaration that the relics are "relics" within the meaning of the Act and

an injunction restraining the respondent from carrying out any works on the

land which will interfere with the relics. (at p58)

4. I will have occasion later in these reasons to refer to certain of the

provisions of the Act, but it is convenient at this stage to describe briefly

some features that it presents. It is "An Act to make Provision for the

Preservation of Archaeological and Aboriginal Relics". Section 2 reads, in

part:

"In this Act unless inconsistent with the context or subject-matter -

'Aborigine' means inhabitant of Australia in pre-historic ages or a

descendant from any such person.

. . .

'Archaeological relic' or 'relic' includes a relic pertaining to the past

occupation by the Aboriginal people of any part of Australia, whether or not

the relic existed prior to the occupation of that part of Australia by people

of European descent, and without affecting the generality of the foregoing,

includes any Aboriginal deposit, carving, drawing, skeletal remains and

anything belonging to the total body of material relating to that past

Aboriginal occupation of Australia, but does not include a body or the remains

of a body interred in a cemetery, burial ground or place of burial after the

year 1834, or a handiwork made for the purpose of sale.

. . . "

Section 21 provides:

"A person who wilfully or negligently defaces or damages or otherwise

interferes with a relic or carries out an act likely to endanger a relic shall

be guilty of an offence against this Act." (at p59)

5. Mr. Dwyer, counsel for the appellants, advances two submissions in support

of his clients' standing. The first is that the Act is an Act for the benefit

of aborigines as a class, investing every member of the class with a private

right sufficient to maintain a suit directed to the preservation of relics

connected with his tribal ancestors. (at p59)

6. In my opinion the submission is clearly untenable. The Act does not single

out aborigines as its beneficiary. Of course, it recognizes that aboriginal

relics are likely to be of primary importance in the preservation and

protection of relics which it is the object of the Act to secure. But the Act

is clearly directed to the preservation and protection of those relics for the

benefit of all Australians: cf. ss. 5, 10, 20, 20A, 26 and 30. There is a

generality about its provisions which precludes any implication of private

rights in any particular group or class. Mr. Dwyer relied on two sections in

particular as evincing the statutory purpose for which he contended: s. 5,

dealing with the membership of the Advisory Committee, and s. 18 conferring on

the Minister a qualified power compulsorily to acquire land containing a

unique and irreplaceable relic which is in danger of loss or damage. He points

out that three members of the Advisory Committee are to be aborigines. This is

true, but the provision of three members in a total membership of twelve

persons falls well short of signifying a controlling responsibility for the

work of the Committee. It is a provision which recognizes that a substantial

part of the work of the Committee will be to advise the Minister in relation

to aboriginal relics. It is to be noted that the definition of "archaeological

relic" and "relic", while expressed only in terms of past aboriginal

occupation of Australia, is not couched in exhaustive terms. I think the

conclusion must be drawn that the Act is not concerned solely with aboriginal

relics. (at p60)

7. Section 18 denies to the Minister the power compulsorily to acquire land

which is established as an aboriginal reserve and on which aborigines are

living. On its face, the section makes an important distinction in favour of

the aborigines who are referred to, a distinction which may or may not be

affected by the special operation of statutes which are applicable to

aboriginal reserves. It is unnecessary to examine the question, because I

think it is clear that s. 18 cannot of itself have the far-reaching effect for

which Mr. Dwyer contends. The protection of aboriginal interests which may be

thought to be achieved by rendering a reserve ineligible for compulsory

acquisition is limited. For example, it would seem that such a reserve, with

the consent of the appropriate Minister, could be declared an archaeological

area, with the result that all relics within that area would become the

property of the Crown and be under the protection of the Crown (ss. 15 and

20). The provisions directed to protection and preservation of relics that are

contained in ss. 21, 22, 23, 25, 26, 27 and 30 are all applicable without

qualification to aboriginal reserves, as they are to other land in the

occupation of other Australians. (at p60)

8. I therefore conclude that the Act does not create in aborigines as a class

any private rights. (at p60)

9. Mr. Dwyer's alternative submission is that the appellants have a special

interest as members of the Gournditch-jmara tribe in the relics of their

ancestors. He argues that their interest is more than a mere intellectual or

emotional interest, and falls squarely within the second limb of the statement

of Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109 as it was

re-stated by Gibbs J. (as he then was) in Australian Conservation Foundation

Inc. v. The Commonwealth (1980) 146 CLR 493 . (at p60)

10. In the former of these cases, Buckley J. (1903) 1 Ch, at p 114 stated the

effect of the earlier authorities as follows:

"A plaintiff can sue without joining the Attorney-General in two cases:

first, where the interference with the public right is such as that some

private right of his is at the same time interfered with . . . ; and,

secondly, where no private right is interfered with, but the plaintiff, in

respect of his public right, suffers special damage peculiar to himself from

the interference with the public right."

In the latter case, Gibbs J. (1980) 146 CLR, at p 527 said of this passage:

"Although the general rule is clear, the formulation of the exceptions

to it which Buckley J. made in Boyce v. Paddington Borough Council is not

altogether satisfactory. Indeed the words which he used are apt to be

misleading. His reference to 'special damage' cannot be limited to actual

pecuniary loss, and the words 'peculiar to himself' do not mean that the

plaintiff, and no one else, must have suffered damage. However, 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'."

Later in his reasons his Honour elaborated his understanding of a "special

interest" (1980) 146 CLR, pp 530-531 :

"I would not deny that a person might have a special interest in the

preservation of a particular environment. However, an interest, for present

purposes, does not mean a mere intellectual or emotional concern. A person is

not interested within the meaning of the rule, unless he is likely to gain

some 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. A belief, however strongly felt, that the law generally, or a

particular law, should be observed, or that conduct of a particular kind

should be prevented, does not suffice to give its possessor locus standi. If

that were not so, the rule requiring special interest would be meaningless.

Any plaintiff who felt strongly enough to bring an action could maintain it."

(at p61)

11. The significance of the relationship between the subject matter of the

suit and the appellants is expressed by them in a number of ways. The relics

are of cultural and historical importance to the members of the tribe, they

aid the preservation of the tribe's separate identity, and are used in the

education of their children in that the handling and visual examination of

them assists in imparting an understanding of the heritage of the tribe. (at

p61)

12. On the other hand, Mr. Pannam, counsel for the respondent, while

conceding for the purpose of the argument that there is evidence of user,

argues that there is no right to use, no right to enter on the land to gain

access to the relics, with the result that the appellants have no stake in the

controversy, and hence no standing. In any event, he argues that the cultural

and historical associations which are relied upon by the appellants are no

more than intellectual and emotional considerations which have never been

regarded as sufficient. (at p61)

13. I hold against the respondent on both these points. I agree that the

character of the relief which is sought in a particular case is relevant to

the question of standing, and Mr. Pannam has made a telling point in this

regard. Nevertheless, when the allegation is that relics of great significance

to a particular people are threatened with destruction, the preservation of

those relics is of overriding importance whether or not there is any immediate

right of access. It may reasonably be a case of first save the relics, and

worry later about gaining access in order to use them. (at p62)

14. With regard to the second point, this seems to me to be a very special

case. I have felt some concern about the sufficiency of the case asserted in

the statement of claim and developed in the evidence with respect to the

merits. But we are not concerned with that. The nature of the interest that is

asserted is clear enough, and in my opinion it is one which stands in contrast

to that which was asserted in the Conservation Foundation Case. In that case,

the Foundation was asserting a general concern that environmental

considerations should receive adequate consideration in the administration of

government, a concern that happened to be focussed through the events that

occurred on a particular development in Queensland. It might just as easily

have been related to proposed development in Victoria, or Western Australia or

anywhere else in Australia. In the present case, the interest of the

appellants is necessarily focussed on relics in a particular locality. There

is nothing abstract about it. There is nothing voluntary about it, as there

would be if it were a cause which if not pursued at Portland today may be

pursued in the Kimberleys tomorrow. The Gournditch-jmara people, of which the

appellants are representative, are involved with these relics, whether they

like it or not. It is to their ancestors, their history, that the relics bear

silent but meaningful testimony. Furthermore, the corporate nature of the

interest, resident as it is collectively in the tribe, also serves to identify

an interest which is deeper and more significant than a mere emotional

attachment. In my opinion, the interest of the appellants, described as it is

as a cultural and historical interest, is more than the kind of emotional or

intellectual interest to which Gibbs J. referred in the Conservation

Foundation Case. Whether there are spiritual implications is something which

is unclear, perhaps because we have been concerned with stone chips rather

than with the land itself. (at p62)

15. The view which, with great respect to their Honours, appeals to my mind

may be further explicated by reference to the example taken by Starke J. of

interference with the relics in the Australian War Memorial. I entirely agree

with his Honour in his treatment of that hypothetical case. But I do not find

it to be a true analogy because the class of hypothetical plaintiffs is drawn

too widely. The interest which all former servicemen could claim in common in

such relics is a spirit of patriotism nurtured and sustained by the memory of

the courage and sacrifice displayed by so many of their fellow Australians,

and in which to varying degree they may have shared. It is a precious

sentiment, with a strong emotional content, yet lacking in that particularised

special interest which is required to establish standing in law. The analogy

would perhaps be more truly drawn if the hypothetical plaintiffs were related

more closely, for example as actual descendants of those the relics of whose

service were threatened with interference. On the other hand, if an aborigine

from Arnhem Land had brought the present action, asserting an interest in the

aboriginal relics on the respondent's land at Portland simply because he was

an aborigine, with no greater interest in them than that possessed by every

other aborigine, then no doubt his interest would not be sufficient. It is of

course a question of fact and degree in every case and, as Mason J. remarked

in Robinson v. Western Australian Museum (1977) 138 CLR, at p 327 , the cases

are "infinitely various". (at p63)

16. It is also a fact in the present case that the appellants seek to use the

civil process in order to enforce the criminal law. It is a jurisdiction which

must be jealously guarded, its invocation even by the Attorney-General being

confined normally to rather special circumstances: see, for example, Gouriet

v. Union of Post Office Workers (1978) AC 435, at pp 481, 490-492, 498, 510,

521 . However, in the circumstances of this case it is a consideration which

does not of itself displace the special interest which I have found the

appellants to possess. It may be very pertinent to the question whether the

relief by way of injunction should be granted, although, if relics are

irreplaceable, preventive action by way of injunction would obviously be more

consistent with the objects of the Act than punishment following their damage

or destruction. (at p63)

17. For these reasons, I hold that the appellants have standing to maintain

their action. What the outcome of it will be is not for me to say. Mr. Pannam

referred to a number of considerations which may well be more decisive to a

consideration of the merits of the action than they were relevant to the

limited question with which the Court has been concerned. (at p63)

18. I would allow the appeal, and return the matter to the Supreme Court of

Victoria to be proceeded with according to law. (at p64)

JUDGE7

BRENNAN J. Section 21 of the Archaeological and Aboriginal Relics

Preservation Act 1972 (Vict.) (which I shall abbreviate to the Relics

Preservation Act) provides:

"A person who wilfully or negligently defaces or damages or otherwise

interferes with a relic or carries out an act likely to endanger a relic shall

be guilty of an offence against this Act."

Contravention of this provision is punishable by fine or imprisonment or both

(s. 28(2)). (at p64)

2. Founding their action on this section, the two appellants issued a writ

against the respondent, indorsed with their statement of claim alleging that

it had wilfully interfered with certain relics on land which it occupies at

Portland in Victoria. (at p64)

3. The relics consist for the most part in stone artefacts and the debris of

their manufacture scattered in several areas and lying on or near the surface.

The scatters of artefacts probably mark the sites of Aboriginal workshops in

prehistoric times. The plaintiffs allege that the relics relate to the

occupation of the land by the Gournditch-jmara people, and that the plaintiffs

are the custodians of the relics according to the laws and customs of those

people. They allege that the respondent had threatened "to further interfere

with the said relics over the whole or a substantial part of the said land by

constructing industrial works thereon" and that it intended to do so. (at p64)

4. The respondent proposes to construct an aluminium smelter on the land. It

is bound by an agreement made with the State of Victoria that it will commence

and complete construction of the smelter without undue delay, though the part

of the agreement containing that obligation is not to come into operation

until further agreements are made with respect to, inter alia, water and

sewerage rates and charges and electricity tariffs and charges. The agreement

was approved and given the force of law by the Alcoa (Portland Aluminium

Smelter) Act 1980 (Vict.). Counsel for the respondent informed the Court that

the further agreements had not yet been made and that the time for performance

by the respondent and by the State of their respective obligations under the

agreement had been deferred accordingly. (at p64)

5. The appellants claim the following relief:

A. A declaration that the said relics are "relics" within the meaning of the

said Act (i.e., the Relics Preservation Act).

B. An injunction, including an interlocutory injunction restraining the

defendant its servants agents or contractors from carrying out any works upon

the said land which will interfere with relics thereon.

C. Such further or other relief as to the Court may seem fit. (at p65)

6. The appellants applied on summons to Brooking J. for an interlocutory

injunction restraining the defendant its servants agents or contractors from

carrying out any work upon the land referred to in the statement of claim

until the hearing and determination of the action. The injunction was refused

and the application dismissed. A cross application by the respondent to

dismiss the action succeeded. The Full Court upheld the orders made by

Brooking J. The view was taken that the plaintiffs could not show either a

private right or a special interest in the subject matter of the action, and

accordingly that they lacked standing to sue for the declaration and

injunction which they claimed. (at p65)

7. The Attorney-General having declined to grant his fiat, special leave to

appeal from the judgment and orders of the Full Court was given by this Court.

The appeal turns solely on the standing of the appellants to sue for the

relief claimed. The appellants submit that they have standing to sue for the

declaration and injunction claimed in their pleading either because s. 21 of

the Relics Preservation Act confers a private right upon them or because the

facts alleged in pars. 1, 2, 4, 5 and 6 of the statement of claim show that

they have a special interest in the relics and their preservation. Those

paragraphs allege:

"1. The Plaintiffs are descendants from inhabitants of Australia in

prehistoric ages and members of Gournditch-jmara Aboriginal people.

2. The Plaintiffs are custodians of the relics of the Gournditchjmara

Aboriginal people according to their laws and customs.

3. . . .

4. The Defendant is the occupier of land delineated upon the map annexed

hereto and situate at Portland in the State of Victoria (hereinafter referred

to as 'the said land').

5. The whole of the said land contains numerous relics within the meaning

of the Archaeological and Aboriginal Relics Preservation Act 1972.

6. The said relics relate to the occupation of the said land by the

Gournditch-jmara Aboriginal people and are relics of which the Plaintiffs are

custodians according to their laws and customs." (at p65)

8. The action is not brought to compel a public officer to perform a

statutory duty; it is an action between private litigants to enforce

performance by the defendant of a statutory duty for breach of which a penalty

is provided. The appellants' argument in support of their standing to bring

the action relies on both limbs of the proposition stated by Buckley J. in

Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 :

"A plaintiff can sue without joining the Attorney-General in two cases:

first, where the interference with the public right is such as that some

private right of his is at the same time interfered with (e.g., where an

obstruction is so placed in a highway that the owner of premises abutting upon

the highway is specially affected by reason that the obstruction interferes

with his private right to access from and to his premises to and from the

highway); and, secondly, where no private right is interfered with, but the

plaintiff, in respect of his public right, suffers special damage peculiar to

himself from the interference with the public right." (at p66)

9. As Stephen J. pointed out in Australian Conservation Foundation Inc. v.

The Commonwealth (1980) 146 CLR, at pp 537-538 ("the A.C.F. Case"), the first

limb of the proposition "involves no more than that a plaintiff may, without

joining the Attorney-General, sue for interference to some private right of

his own", and it would be "surprising if the law were otherwise". There are,

of course, a multitude of instances where the same act or omission at once

violates both a private and a public right, or at once breaches a public duty

and a duty owed to an individual. A plaintiff who sues to prevent violation of

his private right or to enforce performance of a duty owed to him does not

lack standing because there is a public right or public duty similar to the

right or duty the subject of the action. Thus, an elector who is denied his

common law right to vote may sue for an infringement of that right, though it

is infringed in breach of a statute assuring free elections (Ashby v. White

(1703) 2 LdRaym 938, at pp 954, 958 (92 ER 126, AT PP 136, 139) ); or a

plaintiff who suffers damage as the inevitable consequence of a positive

intentional criminal act has a cause of action in tort and may sue for

damages: Beaudesert Shire Council v. Smith (1966) 120 CLR 145 ; Kitano v. The

Commonwealth (1974) 129 CLR 151 . Any protection of the public interest which

results from the prosecution of a plaintiff's action in cases of these kinds

is incidental to the vindication of the plaintiff's own right or the

enforcement of the performance of a duty owed to him. (at p66)

10. Similarly, when a statute at once creates a duty and confers a private

right upon a party who suffers damage by breach of the duty created, the

standing of a party to sue to enforce his private right is not in doubt. There

may be difficulties in ascertaining whether, upon a true construction of the

statute, it is intended that a private right should be conferred upon a

particular plaintiff, but once that question is answered affirmatively the

standing of the plaintiff to sue is clear. Sometimes a statute which creates a

public duty may expressly confer a right of action for damages or other relief

in the event of its breach, as in ss. 80 and 82 of the Trade Practices Act

1974 (Cth) (see Hornsby Building Information Centre Pty. Ltd. v. Sydney

Building Information Centre Pty. Ltd. (1978) 140 CLR 216, at p 226 ). But

usually the question whether a private right is conferred must be answered by

reference to an inference which arises "on a balance of considerations, from

the nature, scope and terms of the statute, including the nature of the evil

against which it is directed, the nature of the conduct prescribed, the

pre-existing state of the law, and, generally, the whole range of

circumstances relevant upon a question of statutory interpretation . . . "

(per Kitto J. in Sovar v. Henry Lane Pty. Ltd. (1967) 116 CLR 397, at p 405 ).

(at p67)

11. The appellants' argument on the first limb is that the Relics

Preservation Act confers on them a private right of action for breach of s.

21. The Act is concerned to protect relics pertaining to the past occupation

by the Aboriginal people of any part of Australia (ss. 2 and 21); it provides

that three Aborigines must be appointed to the Archaeological Relics Advisory

Committee constituted to advise the Minister in relation to archaeological

relics and their preservation (ss. 5 and 7); and it exempts Aboriginal

reserves on which Aborigines are living from compulsory acquisition when

acquisition would otherwise be necessary to preserve a unique and

irreplaceable relic from loss or damage (s. 18). It is submitted that a

private right of action for breach of s. 21 is to be inferred because the Act

benefits or protects Aborigines as a class. On the other hand, there are

statutory indications that the preservation of relics is intended to enure for

the benefit of the public at large and not only for the benefit of Aborigines;

the duty to take action for the preservation of relics imposed upon the

Minister and the Director of Conservation (ss. 10, 22(3), 23 and 25), the

vesting in the Crown of property in all relics within an archaeological area

(s. 20), and the prohibition against any person disturbing or excavating land

for the purpose of uncovering or discovering a relic without first receiving

the consent of the Minister (s. 22(1)). (at p67)

12. Though a statutory reference to a class to be benefited may assist the

drawing of an inference that a right is intended to be conferred upon the

members of the class (Cutler v. Wandsworth Stadium Ltd. (1949) AC 398, at pp

412-413 ), the conferral of a right of action does not depend on whether the

statutory provision is expressed to be for the benefit of a class (O'Connor v.

S. P. Bray Ltd. (1937) 56 CLR 464, at pp 486-487 ; Whittaker v. Rozelle Wood

Products Ltd. (1936) 36 SR (NSW) 204, at p 208 , per Jordan C.J.). Nor does it

necessarily follow that a statute which expressly refers to a class as a class

to be protected affords its protection by conferring a right of action

(Attorney-General v. Pontypridd Waterworks Co. (1908) 1 Ch 388, at pp 399-400

; and cf. Attorney-General v. North Eastern Railway (1915) 1 Ch 905, at p 917

). (at p68)

13. What is the class upon whom a right of action for breach of statutory

duty might be thought to be conferred? It cannot be supposed that a defendant

who breaches s. 21 is liable in damages to every Australian or Victorian

Aborigine, or to every Aborigine who has a connection with a relic which has

been defaced, damaged or interfered with. Nor does an award of damages to each

member of a class appear to be a remedy which the legislature would have

intended consequent upon any breach of s. 21. By what yardstick would damages

be assessed? In context, neither the terms of s. 21 nor the statutory

references to Aborigines, Aboriginal relics and Aboriginal lands reveal an

intention to confer a private right of action upon the members of an

Aboriginal class entitling them to damages for breach of the statutory duty

imposed by s. 21 or some other form of relief. Nor does s. 21 confer on

individual Aborigines a proprietary right to relics or a usufructuary right

over them. Nor does it confer on all members of an Aboriginal class

collectively any right which might be enforced by some members of the class in

a representative action (see Bedford (Duke of) v. Ellis (1901) AC1 ; Wyld v.

Silver (1963) 1 Ch 243, at p 265 ). (at p68)

14. The plaintiffs are therefore constrained to establish standing by

bringing themselves within the exception to the rule that a private citizen

cannot bring proceedings to prevent public wrongs. The general rule was stated

by Gibbs J. (as the Chief Justice then was) in the A.C.F. Case in these terms

(1980) 146 CLR, at p 526 :

"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. There is no difference, in this

respect, between the making of a declaration and the grant of an injunction.

The assertion of public rights and the prevention of public wrongs by means of

those remedies is the responsibility of the Attorney-General, who may proceed

either ex officio or on the relation of a private individual. 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 rules as to standing are the same whether the plaintiff seeks a

declaration or an injunction." (at p69)

15. The exception to this rule formulated by Buckley J. in the second limb of

Boyce was reformulated by Gibbs J., the better to express the principle which

now governs the standing of a private plaintiff to sue to enforce performance

of a public duty (1980) 146 CLR, at p 527 :

"Although the general rule is clear, the formulation of the exceptions

to it which Buckley J. made in Boyce v. Paddington Borough Council is not

altogether satisfactory. Indeed the words which he used are apt to be

misleading. His reference to 'special damage' cannot be limited to actual

pecuniary loss, and the words 'peculiar to himself' do not mean that the

plaintiff, and no one else, must have suffered damage. However, 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'." (at p69)

16. Mason J. expressed the exception in similar terms (1980) 146 CLR, at p

547 :

"I also agree with Gibbs J. that, apart from cases of constitutional

validity . . . a person, whether a private citizen or a corporation, who has

no special interest in the subject-matter of the action over and above that

enjoyed by the public generally, has no locus standi to seek a declaration or

injunction to prevent the violation of a public right or to enforce the

performance of a public duty."

The criterion of special interest better describes the approach to standing

which has been taken in recent cases in Australia. A difference may be

perceived between the strict view taken by the Court of Appeal in Boyce and

more recent Australian cases relating to the standing of a plaintiff to sue

his neighbour to enforce to the plaintiff's advantage the provisions of

building or planning legislation. (at p69)

17. In Boyce the plaintiff, submitting that a statute required the land

contiguous to his own land to be kept as open space, sought to prevent the

defendant from erecting a hoarding. He failed before Buckley J. because the

statute, on its true construction, did not preclude the defendant from

erecting the hoarding (1903) 1 Ch, at p 117 , and ultimately his Lordship's

construction of the statute was upheld in the House of Lords (1906) AC 1 . In

the Court of Appeal, however, the view was expressed that the Attorney-General

should be joined as co-plaintiff in order to determine as between him

representing the public and the defendant whether the defendant was in breach

of its public duty. It was held that no complaint of breach could be made by a

private individual: see per Vaughan Williams L.J., with whom the other members

of the Court concurred (1903) 2 Ch 556, at pp 563-564 . The Attorney-General

was joined as a plaintiff, and when the case went to the House of Lords the

view of the Court of Appeal went unchallenged. (at p70)

18. However, in Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272 ,

Bowen C.J. in Eq. (as he then was) held that plaintiffs had standing to bring

proceedings seeking a declaration that a development approval and land use

consent granted to the second defendant by the Warringah Shire Council were

nullities. The plaintiffs could sue without joining the Attorney-General

because, as his Honour said (1975) 2 NSWLR, at p 275 , they "would be directly

affected by the proposed development and do have locus standi." Recently this

Court held in Day v. Pinglen Pty. Ltd. (1981) 148 CLR 289 that a plaintiff

whose view of Sydney Harbour would be interfered with by an unlawfully erected

building, and whose property would thereby be depreciated in value, had

standing to sue to restrain the contravention of the building control

provisions of the Local Government Act 1919 (N.S.W.). In both cases, the

plaintiffs were assisted to show that they had a special interest in

protecting the amenities of the neighbourhood by a provision which conferred a

personal right on the plaintiff to object to a grant of approval for the

construction of the building; but in neither case were the plaintiffs seeking

to enforce rights to object or to participate in administrative proceedings

for the grant or refusal of approval (cf. S.S. Constructions Pty. Ltd. v.

Ventura Motors Pty. Ltd. (1964) VR 229 ). And in Howes v. Victorian Railways

Commissioners (1972) VR 103, at p 124 McInerney J. held that depreciation in

value of a plaintiff's land caused by a defendant's contravention of a

planning scheme would be "special damage" sufficient to give a plaintiff

standing to sue to enforce conformity with the scheme. (at p70)

19. The interests which were held sufficient to give standing in these cases

may not have satisfied the Court of Appeal in Boyce but they fall squarely

within the concept of "special interest" expressed in the A.C.F. Case. Of

course, the breach of duty in each of these cases affected the plaintiff's

interests as an owner of land. And perhaps the same foundation supported the

standing of the plaintiff in Blanch v. Stroud Shire Council (1947) 48 SR (NSW)

37 where Roper J. held that, as the defendant's proposal to raise a loan

carried the risk that the loan moneys would be used to acquire compulsorily

the plaintiff's land, the plaintiff had standing to challenge the lawfulness

of the proposed raising of the loan. But the criterion of special interest is

expressed to be of general application, not limited to cases where breach of a

public duty is productive of damage to the plaintiff's proprietary rights. (at

p71)

20. Perhaps Buckley J.'s notion of special damage was derived from the notion

of particular damage occasioned by a public nuisance and recoverable at common

law (Neville Nitschke Caravans (Main North Road) Pty. Ltd. v. McEntee and

McEntee (1976) 15 SASR 330, at p 340 , per Bray C.J.). If that be so the

reformulated criterion of "special interest in the subject matter of the

action" facilitates the separation of the rule as to standing from the

definition of the damage occasioned by a public nuisance which is recoverable

at law (as to which, see Walsh v. Ervin (1952) VLR 361 ). The elements of the

common law right to recover a pecuniary award for particular damage occasioned

by a public nuisance are unlikely to furnish a general criterion of a private

litigant's standing to sue for an injunction to restrain the contravention of

a penal statute where the statute does not confer a personal right to sue for

damages for its breach. It is not necessary for a private litigant to show

that he would have an entitlement to damages if the law were breached before

he can demonstrate a special interest in obtaining a declaration or an

injunction to restrain a threatened breach. The exception to the general rule

precluding a private litigant from suing in such cases extends beyond the

recognition of a private litigant's right to sue to protect his own

proprietary interests or to prevent the tortious infliction of damage upon

him. If the exception were so limited, there would be a tendency to expand the