Page 5010 - Week 16 - Tuesday, 26 November 1991
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"(4) Notwithstanding section 13 of, and Schedule 2 to, the Administrative Decisions (Judicial Review) Act 1989, a decision referred to in subsection (3) shall be taken to be a decision to which that section applies.".
Mr Deputy Speaker, this provision reflects, in its first subclause, the acknowledgment that the Chief Minister gave in question time today that, in making a decision on funding in this program, she would, of course, apply a fair and reasonable decision to the area. I think her words were "fairly" and "reasonable". She acknowledged that. Mr Deputy Speaker, subclauses (3) and (4) seek to extend the role of judicial review in relation to this decision making.
I will need to take members through the steps for it, because no doubt Mr Connolly has some legal advice. I am not going to turn this into a trial tonight. I am well aware that the Government will be opposing this provision. The essential issue is, as has been put very clearly and historically over the years:
The role of judicial review ... is supervisory. The aim is to ensure that, substantively and procedurally, the administration acts according to law, and does not exceed or abuse the proper limits of its powers, and does not deny procedural justice and fairness.
I am reading from an excellent speech given by Mr Todd, a former president of the Administrative Appeals Tribunal. But he acknowledges that:
... judicial review does not presume to tell the administration how to exercise its powers.
So, I stress that this provision does not seek to move money around. It does not offend, on the advice available to me, section 65 of the self-government Act. It merely places an onus upon the Government. It has already acknowledged that it accepts that onus, and it argues that it has discharged it. We disagree that it has acted fairly and reasonably.
To attract the other provisions of this amendment, that is the Administrative Decisions (Judicial Review) Act, the decisions that this amendment seeks to attack need to be of an administrative character under an enactment. I anticipate discussion of that issue. It is the Rally's argument that the requirements are met and that, regardless of whether they are met or not, the provision before the house allows the administrative decisions judicial review process to take place.
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