Page 5796 - Week 18 - Tuesday, 10 December 1991
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was adopted in preference to the words "any person". I know that Mr Moore was interested in that view when we were discussing the planning legislation and we adopted the words "to consider" because we thought that language was more in keeping with, as the then Law Office advised me, the person aggrieved test, which is the normal basis for determining standing under the Act. Further, it serves to emphasise that review under the Act is on questions of law and does not go to the merits of a decision.
I just want to add a couple more points. Whilst this Bill before the house, which we support, widens standing under the planning and land use package, it should be noted that the costs in any legal action are normally paid by the unsuccessful party. That differs from the section 11A City Area Leases 1936 application situation, where sometimes the applicant would still be ordered to pay the costs of an objector with a well-founded case. That followed a decision of the ACT Supreme Court.
In relation to the situation after the package comes in, that will not necessarily apply. In fact, costs under the Administrative Decisions (Judicial Review) Act normally go according to the principle of the unsuccessful party paying the costs. That is an issue that needs to be faced, and I am sure that Mr Moore would have some comment on it. I do remind the house that we are coming back to the mainstream, as it were; but at the same time we need to be aware that at times the potentiality for costs in the Supreme Court, or formerly, under this legislation, the Federal Court, is a great disincentive to people seeking a review.
What this Bill does is to give the widest standing in Australia, in effect, in the planning situation. At the same time the minus is that at this stage, unless a subsequent Supreme Court sitting on a matter under this Act were to decide to adopt the other standard that we had, costs would go with the event. There is the beginning of a disincentive there and that may reconcile a lot of developers to the view that this very wide standing will not be too intrusive into their activities. I point out that that issue no doubt will be hotly contested in due course.
I commend the Bill to the house. The question of costs in well-founded but technically deficient claims is one we should always be conscious of because review under this Act is on questions of law and not merit. You can have a lot of merit in your case and lose on your law, and in losing on your law there is often a strong begrudging of costs when the unsuccessful applicant applies. This legislation has very wide standing. At the same time, those seeking to apply under it will need to consider very carefully that it is an application on a question of law. It is not merit review; that is to take place in the Administrative Appeals Tribunal under other collateral provisions in the planning legislation.
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