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Legislative Assembly for the ACT: 1997 Week 14 Hansard (9 December) . . Page.. 4769 ..

MS HORODNY (continuing):

The Explanatory Memorandum that accompanied the Bill ... was misleading as to the effect of the proposed changes. The significance of the changes was not apparent on the face of the Bill. The relevant clause simply referred to "omitting subparagraph 4(a)(iii)". The Explanatory Memorandum said:

Clause 87 - Interpretation - amends section 3 of the Administrative Decisions (Judicial Review) Act 1989. The amendment removes the right of a person to seek a statement of reasons under section 13 of the Act where the person considers that a decision made under the Principal Act is contrary to law. The amendment does not apply to applications made to the Supreme Court and not finally dealt with before this clause commences.

Whilst the amendment does remove the liberalised right to apply for a statement of reasons this right is subsidiary to the principle right to then apply to the Supreme Court for judicial review. The Explanatory Memorandum is therefore misleading because it fails to refer to the most significant effect of the proposed amendment.

If Mr Humphries has a comment to make about this, he can certainly seek leave, after I have finished, to explain further what he believes to be the truth of this matter. Mr Mossop continues:

It may be that the misleading nature of the Explanatory Memorandum was the reason that the provisions of cl 87 were not referred to in the debate on the Bill in the Assembly ... I should point out that it is a rare event for such a liberalised test of standing to be removed from legislation once it has been inserted. Indeed I know of no other jurisdiction in which this has occurred. It is particularly unusual that this occurred with the support of the Australian Labor Party, a party whose record of support for open standing and civil enforcement provisions has, until now, been excellent.

Ms McRae: What is the relevance of this?

MS HORODNY: Again, Ms McRae can make an explanation of this if she chooses.

My Bill attempts to broaden the rights of persons to go to the Supreme Court to restrain or remedy breaches of the Land Act. I accept that it goes beyond the original intent of the relevant section of the AD(JR) Act. However, it is not inconsistent with laws regarding open standing in other States. Neither Mr Humphries nor Ms McRae has addressed that issue. Mr Humphries made a number of criticisms of the detail of my Bill. I should point out, however, that the wording of this Bill was taken almost word for word from equivalent sections 122 to 124 of the New South Wales Environmental Planning and Assessment Act. If the New South Wales Parliament had no difficulty in passing these sections, then I do not understand why this Assembly has such difficulty.

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