Page 3496 - Week 12 - Wednesday, 19 September 1990
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Mr Justice Kelly then turned to the second limb, the public interest limb. This has secured most of the publicity but was only one of the limbs. He traversed there the notion of affected local inhabitants and questions of residential amenity involving local issues such as traffic congestion, parking overspill, air pollution and damage to heritage. Of course, His Honour excluded height and design and siting effectively.
On traffic, His Honour found that the 700 prospective occupants of the building would be added to the 32,000 employment level which was the predicted level in the 1989 Civic Centre Policy Plan. This is a level that was in the pipeline at that time in evidence before His Honour; but, as the Assembly well knows, accurate figures given in evidence before this Government when it was faced with making a decision were as follows: in June 1990, the employment in the Canberra city area, including adjoining commercial areas, was 25,405, well short of the 32,000 that was thought to be happening during the heady days in 1989. This was during markedly different economic times and prior to the Government's decision to ensure that no further public servants came to the city; nevertheless, His Honour anticipated as best he could the requirement in the 1989 plan that he make the assessments and, in effect, as Mr Moore has said on several occasions, Mr Justice Kelly's judgment was an environmental assessment - those are Mr Moore's words. Certainly, it was an environmental and planning assessment in the sense that His Honour dealt with what was before him as best he could; but, since the time of His Honour's decision and since the decision by the Federal Court not to overturn the judgment of Mr Justice Kelly, in terms of the exercise of his discretion on these issues, as Mr Jensen has pointed out, the Assembly had before it other more up-to-date information. This included compelling information such as the facts that parking had been banned in all of the adjoining suburbs and that the pollution issues predicted in the 1989 report, that His Honour seemed a bit diffident about, were borne out by quantified testing. Indeed, the traffic flow issues were again tested and the fears that His Honour had were not borne out.
Now, what does a government do when faced with this situation; faced with the fact that in an imperfect world we place upon the shoulders of a good judge the enormous responsibility of predicting and making environmental and land planning assessments? I believe His Honour did very well in that assessment; but, in the light of the information to hand and in the light of the careful work of the Assembly committee, it was the Government's view that the better decision would be to take account of the factors that His Honour enjoined us to and himself took into account at a different time and with markedly different information before him.
Technically it may be said that the Government overrode a court's decision, but in our view no injustice has come
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