Page 5547 - Week 17 - Wednesday, 4 December 1991
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To place the validity of an instrument made at the initiative of a Minister or otherwise by the executive government beyond examination is a matter of constitutional significance. It is, in my opinion, to be done only if there be serious reasons why what the Minister or his department does should not be able to be questioned and if there is no other way in which what is sought to be achieved can be achieved.
There are reasons why a planning instrument should not be open to attack for reasons which go to formalities and technicalities and not to the substance of what has been done.
I think that is the point that the Leader of the Opposition was raising before. It is a valid point too. The judge continued:
And if planning instruments may be set aside, for reasons which do not go to the substance of them, long after they have been made, public and private inconvenience may result.
That is a point that I have been trying to make and that is why I have argued that this particular clause does more than I believe that it was intended to do. I think this is important:
There are legislative provisions in other areas to ensure that inadvertent informalities or technical errors may not be relied on.
He goes on to say:
In the present case, s35 -
we have said that section 35 of the EP Act reflects clause 50 here -
purports to put beyond question any matter going to the validity of a planning instrument, and makes no distinction between defects of form and defects of substance.
Then he talks about the present case. It is also interesting to note that Alan Bradbury, in his comment, went on to say:
Legislative provisions which preclude judicial review altogether have met with little success before the courts.
So, he would also argue that provisions like this anyway are going to meet with very little success before the courts. Later on he argues - I think it is an appropriate argument - that, if you are going to put in a provision of this nature, then you ought to allow the court to decide
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