Page 5704 - Week 17 - Thursday, 5 December 1991
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MR COLLAERY (5.03): Yes, if it would assist Mr Moore. This provision we are looking at has a long history in terms of government behind-the-scenes wrangling - and I see smiles on their faces. This provision sets up the widest possible appeal structure, the widest possible scope for appeal in Australia in any planning legislation. It allows anyone who may be affected - the widest possible words - to object. Other legislation restricts it to "directly" affected and uses a whole lot of qualifying words. There was a mammoth battle in drafting to get it through, and I trust that the Minister will stick to his guns now and vote for it. I am sorry that there is a bit of confusion on this side of the house.
I go back to the parallel I use all the time, the Hail Mary case, where His Honour Mr Justice Wilcox found that a couple of clerics could be affected by a perceived blasphemous film. Mr Connolly is nodding; he knows what I am talking about.
We are breaking new ground with this provision and I commend it to the house. I apologise for not communicating on this side of the house a bit earlier, but this was approved by us when we were in government and it is a major feature of the scheme. I think the fault lies with me in not communicating to my non-government colleagues the legal meaning of "who may be affected". It gives a very wide standing, the widest possible standing. You are required to be affected. There is no test of effect put into this.
Mr Kaine: Even if it only makes you sick to think about it.
MR COLLAERY: Indeed. If it is blasphemous, or something, on the parallel I use. I assure you that we had very anxious and detailed discussions on this provision in government at the time. It is, as I am sure Mr Justice Paul Stein, who currently rules the Land and Environment Court in New South Wales, would say - as Mr Moore heard him say recently when we talked to him about the Chaelundi Forest decision - the widest possible ground for review. I commend it and apologise to my colleagues for not discussing it with them earlier.
MR MOORE (5.05): I heard what Mr Collaery said. I heard his lawyers' argument. I know that lawyers like these sorts of arguments. He said that it is the widest possible allowance. I get the indication that I am going to lose this amendment, so we will be able to test that. But in English "any person" is much wider than "any person who may be affected". There is no doubt in plain English that one is wider than the other. I know that the thing can be tested in due time because I am going to lose, but it still seems to me that this narrows the ability to appeal. As far as I am concerned, any person should be able to appeal. It is as plain as that. That is why I moved the amendment.
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