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Legislative Assembly for the ACT: 1998 Week 9 Hansard (18 November) . . Page.. 2641 ..

MS TUCKER (continuing):

Administrative Appeals Tribunal. This appeal process primarily addresses a particular development proposal from a planning perspective. Being a tribunal, it is a more informal process than a court. The other process is to apply for a review of a decision to the Supreme Court under the AD(JR) Act. This process addresses whether a decision has been made in accordance with the provisions of the relevant legislation. The AD(JR) Act allows for judicial reviews of any government decision made under legislation, not just development applications.

Just about all appeals against development applications are done through the AAT because it is able to examine the appeal from a broader perspective than under the AD(JR) Act. It is also considerably cheaper, as it does not involve going to the Supreme Court and paying legal costs. A recent example of the use of the AD(JR) Act was the Supreme Court case brought by Manuka traders against the Manuka car park development. The traders could not use the AAT as the Minister had made the decision to approve the development application and no appeal rights were available under the Land Act in this instance.

The judge in the case made it quite clear that this was not a merits review of the development. He said that a judicial review is concerned only with process and compliance with law rather than the merits of the decision in question. He thus rejected affidavits from various experts in architecture, planning and urban design because he said that a judgment on whether the development would adversely alter the scale and character of the Manuka precinct was not a matter capable of judicial review. All the judge did was review whether the decision complied with the Land Act and was consistent with the specific requirements of the Territory Plan. So the AD(JR) Act is really there as an accountability mechanism. It is not used very often, but it needs to be there just in case the law has not been applied correctly and those persons concerned about the decision can challenge it in a legal forum.

This Bill merely removes one of the hurdles to allow a person to seek judicial review of a decision under the Land Act, in that they would not have to prove that they were adversely affected by the decision. They would merely have to prove that they thought that the decision was contrary to law. Mr Rugendyke, this is the really important part. Surely, if a decision is contrary to law, then it does not matter who challenges the decision. It should be the decision that is up for challenge, not the standing of the person who wishes to make the challenge.

Basically, the argument that is coming from the Liberal Party here, and it is sort of Mr Rugendyke's argument, is that self-interest has to be the main motivating factor. If your self-interest is in some way possibly going to be negatively affected by the incorrect administration of the law, only then do you have the right to challenge how that law was administered. What does that actually say about the value system that is behind that argument? It says that you can only challenge the fact that a law of our Territory is incorrectly administered by government if it hurts you. So, if you have self-interest, you can look after yourself. Why is that a noble sort of sentiment or something we should be proud of?

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