Last updated 20 May 2022
A person is entitled to seek a statutory order of judicial review in the circumstances set out in pt 3 of the Judicial Review Act 1991 (Qld) (Judicial Review Act).
Section 20 of the Judicial Review Act provides that a person who is aggrieved by a decision to which the Judicial Review Act applies may apply to the Supreme Court for a statutory order of review in relation to the decision. Standing (a right to bring a legal action) to seek judicial review, therefore, requires both that the person is aggrieved by the decision and that recourse can be sought under the Judicial Review Act.
A person aggrieved by the decision includes a person whose interests:
- are adversely affected by the decision
- would be adversely affected by a report or recommendation (s 7 Judicial Review Act).
This includes a person whose interests would be affected by conduct engaged in for making the decision or the failure to make a decision.
For an application for review under pt 5 of the Judicial Review Act, a person is entitled to make an application if the persons interests are, or would be, adversely affected in, or by, the matter to which the application relates (s 44 Judicial Review Act).
The phrase ‘a person whose interests are adversely affected by the decision’ has been interpreted by the courts as generally requiring that a person must have an interest that is greater than the interest of a member of the general public. This will not be a problem when an applicant has been directly and materially affected by a decision (e.g. being refused a licence).
The difficulty with showing standing for judicial review primarily arises when the applicant is a person or public interest group not directly affected by a decision in the same sense, but has a degree of concern about the decision (e.g. an environmental group that wants to challenge a decision to grant development permission to a developer).
Under the common law, it was necessary for the Attorney-General to bring an action against a decision that affected the public interest, and it was a matter of discretion whether or not the Attorney-General chose to do so. An individual or group might have standing to seek judicial review if it could be shown that the infringement of the public interest affected them more than other members of the public, or they had a greater interest in the subject matter of the decision than other members of the public. A mere intellectual or emotional concern was not enough, and courts tended, under common law, to find that environmental groups had only that kind of interest.
Under modern state and Commonwealth legislation, the courts will look at a number of factors to determine whether an individual or group has standing, including:
- relevant organisational objects
- government recognition of a group’s concern through funding or an invitation to participate in projects or conferences
- a history of involvement in the subject matter through submissions over a substantial period of time
- the size of the group’s membership
- community perceptions of the group’s ability to represent the public interest.
A very broad approach was adopted in the case of North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service  QSC 172, where it was considered that standing should be granted in an environmental matter unless to do so would involve an abuse of process (i.e. open standing). This case was decided in 2000 and the approach has been applied in many environmental cases since.
Special costs orders
Section 49 of the Judicial Review Act enables a party to the proceedings (other than the decision maker) to ask the court for a special costs order—either that another party indemnify the requesting of the order for its costs, or that each party should bear its own costs regardless of the outcome. One advantage for an applicant in making a costs application under s 49 is that it allows the applicant to assess the strength of the claim at an early stage before significant costs are incurred. Failure to secure a costs order may prompt an applicant to reconsider their position.