Page 5019 - Week 16 - Tuesday, 26 November 1991
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
They put the court in place of the decision maker. That is not what I am referring to. The Administrative Decisions (Judicial Review) Act simply checks to see whether Ministers have acted lawfully, according to laid down procedures, and according to standards of reasonableness, such that the only unreasonable standards are those which are so gross and so unfair as to amount to what are called errors of law. The basic difference between merit review and judicial review was misunderstood in this debate by all commentators.
I accept that I am not going to get that point through here. I have the wrong audience. It is unfortunate. We had the same debate on the National Crime Authority, where I could not get a point through. Mr Connolly said, "A judge will find decisions unlawful", and, "We would have the judge putting himself in the place of this and that". Those statements are so laughable. They would be so laughed at by practising administrative lawyers. I want to stress in this debate that Mr Connolly is not a practising administrative lawyer. He is not a practising lawyer. He may be registered, but he is not practising.
You should give me some credit for all the many cases I have run, some mentioned in this text. I tell you, and I assure the house, that what I sought to do was to adopt the North American experience, which settled the DOGS debate. It settled it once and for all. There were mainstream Supreme Court decisions based on similar Federal administrative laws in both Canada and the United States that took this issue out of the political environment where the courts laid down definitive decisions on bussing, desegregating and the standards that a government should apply in allocating revenue in these situations. They determined the standards that they should apply, not the merit decisions - not how much and not the allocations. Those decisions were reached in Canada and the United States. In this legislature, I have not managed even to tap the beginnings of some cerebellums. It is bad luck.
Also, Mr Connolly asked, "What tests are we putting in?". I wasted a couple of minutes explaining them - the principles of proportionality that we argue in court all the time; the principle of legal certainty, that schools have to have certainty in their funding processes; and the principle of consistency, which applies around the country. The surprising thing is that Mr Stefaniak understands these concepts, because I discussed them with him earlier. He does understand them, and he knows the points I was making. I regret that the whole party machine set-ups stopped Mr Stefaniak from contributing, because he has seen how these cases are run.
No credit to the arguments that I advanced was done by either of the speakers. I am not being demeaning. I am simply stating my case. I am saying, "You did not listen; you did not even want to consider it". The statements that this is a hand-over of power by the Executive to the
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .