Onus v. Alcoa of Australia, Ltd. (1981) 149 CLR 27

Facts: Section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) (AARPA) provided that a person who wilfully or negligently defaced or damaged or otherwise interfered with a relic or carried out an act likely to endanger a relic should be guilty of an offence.

Held (per Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson & Brennan JJ): Persons who claimed to be descendants and members of the Gournditchjmara Aboriginal people and thus custodians of the relics of cultural and spiritual importance of those people according to their laws and customs, had standing to commence an action to restrain another citizen from contravening section 21 of the AARPA.

Per Gibbs CJ: A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since ... the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.

Per Stephen J: [T]he distinction between this case and the ACF 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 the plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter.

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