Topic 10 Michael Webb

Facts pertaining to hearing at first instance before Lindgren J and appeal to FFC; Issues to be decided at Appeal to FFC; Right to Lifes applications and arguments; Key points of reasoning of appellate judges; Observations and comment.

Facts Right to Life Association (NSW) Inc. sought to review a decision by the first respondent to allow the RU 486 pill to be imported and trialed in Australia. The Decision was made pursuant to the Therapeutic Goods Act and the Therapeutic Goods Regulations which contain a public interest clause. At trial the Judge held that the appellant was not a person aggrieved within the meaning of the ADJR. At trial the Judge held that there was a decision within the meaning of s 5 of the ADJR, no failure to make a decision within the meaning of s 7, nor conduct under s 6 of the act, and that there was not a positive obligation on the Secretary to investigate possible breaches of the law.

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Is applicant a 'person aggrieved' within the meaning of the Administrative Decisions (Judicial Review) Act? Answer: No. 2. (a) Was there a 'decision' by the first respondent within the meaning of s5 of the Administrative Decisions (Judicial Review) Act or a 'failure [by the first respondent] to make a decision' within the meaning of s7 of that Act? Answer: As to 'decision' - Yes, as to 'failure to make a decision' - No. (b) Was there 'conduct' by the first respondent within the meaning of s6 of the Administrative Decisions (Judicial Review) Act? Answer: No 3. Under paragraph (e) of Item 3 of Sch 5A to the Therapeutic Goods Regulations (Cth), is there a positive obligation on the first respondent to investigate possible breaches of State law? Answer: No."

Therapeutic Goods Act 1989 (Cth) imposes conditions on therapeutic goods used for experimental purposes in humans, including the following: ...the Secretary must not, at any time: (i) have become aware that to conduct or continue the trial would be contrary to the public interest; and (ii) have directed that the trial not be conducted, or be stopped... NB (i) Does not read should become aware, i.e. No positive obligation.

a declaration that RU486 was being used in the trials as an abortifacient and the trials therefore were contrary to the public interest; a declaration that the conduct of the trials involved breaches of the criminal provisions in New South Wales and Victoria that criminalise unlawful abortion; and an order that the Secretary further consider his decision according to law.

incorporation did not of itself determine standing; while recognition by the Commonwealth as representing a particular public interest had been determinative in prior cases he did not regard this as a relevant factor; Associations right to free speech in public & political discourse did not translate to a right of standing; the Association had not challenged the criteria the Act & the Therapeutic Goods Regulations 1990 (Cth) apply.

Association while it may believe it was aggrieved was not on the evidence available objectively and actually aggrieved and therefore was not an aggrieved person; No evidence of the nature or scale of the activities of the Association; No material presented to the Court indicating Right to Life had undertaken any particular research, study or activity, in this area; did not in his reasoning refer to any necessity for contiguousness between the governing statutory regime and the objects of a public interest group.

not satisfactory to deal with a claim of being a person aggrieved without identifying the relevant decision, a step requiring identification of the enactment under which the decision was made; understanding of enactment necessary for a proper consideration of the issue of standing; Parliaments use of aggrieved important as it suggests the question of standing is not answered by identification of a person who is an effective and faithful representative of the public interest; Held it was not a decision made under enactment, and thus standing need not be determined.