Page 5542 - Week 17 - Wednesday, 4 December 1991
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Clause 50
MR MOORE (3.25): Mr Speaker, clause 50 is an entirely inappropriate clause. In fact, clause 50 was the subject of a substantial part of a speech given by Alan Bradbury of Macphillamy Cummins and Gibson at the ACT planning and leasehold administration seminar in which he gave a brief comparison with New South Wales planning legislation and procedures. He drew attention to the fact that this provision mirrors section 35 of the EPA Act in New South Wales and said that it is likely to be effective in precluding challenges to the validity of the plan on most grounds. Note that the provision also includes plan variations. I think that is an important thing. Alan Bradbury went on to say that the courts have shown great reluctance to give effect to provisions which exclude judicial review. Then he quoted a series of cases, Mr Speaker, to verify that perspective. I am delighted to make this copy of his speech available to any members who would like to see it.
The important thing here, I think, is that any provision in the plan cannot be questioned after three months. It may well be, Mr Speaker, that there is something that is inappropriate in the plan and that it ought to be challenged. Of course, the court is the method by which we get an arbiter in a challenge. This is an entirely inappropriate provision.
In discussion with Mr Wood and his officers after I had raised the issue it was pointed out to me that perhaps the compromise could be that, if a provision of the plan was challenged and something had been built, it would not necessarily need to be pulled down. I have to agree, Mr Speaker, that that would be an intolerable situation and entirely inappropriate. It is something that the Minister raised with me and I agree.
The solution, therefore, is perhaps to redraw the provision. I accept that that is the solution. If the provision is going to be redrawn, then it is appropriate for us to remove it from the legislation because, as I see it, it has unintended consequences. The department and the Government will have plenty of time to bring it back on. They will have plenty of time to redraw it because the earliest that we can see this legislation being brought into effect is in a couple of months' time. Most likely, it will be towards the end of March or 2 April. That being the case, there is another three months after that for this matter to be brought before the parliament and corrected to the satisfaction of the parliament.
I think it would be inappropriate for us, to use Mr Connolly's words this morning, to pass a bad law. This would be passing bad law, and I grant that I am using that term quite freely. If this is left in the legislation it may well mean that any provision within the plan can no longer be challenged after the first three months.
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