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Legislative Assembly for the ACT: 2002 Week 14 Hansard (12 December) . . Page.. 4485 ..

MRS DUNNE (continuing):

they have invested so much already and they have to protect their investment. This is not about protecting the big guy, it is actually about saving the community from vexation.

I commend the amendment to the house.

MR CORBELL (Minister for Education, Youth and Family Services, Minister for Planning and Minister for Industrial Relations) (9.19): The government will not be supporting Mrs Dunne's amendment. The reason for that is that Mrs Dunne seeks to significantly expand the range of circumstances in which the Administrative Appeals Tribunal may decide that it is appropriate to award costs against a particular party. Essentially, Mrs Dunne proposes that costs could be awarded against the applicant if the tribunal is satisfied that the application or part of the application is frivolous or vexatious.

The reality is that, if Mrs Dunne's amendment was successful, it would never be used because it is too difficult to determine when an application is vexatious or frivolous. Having been a minister now for just over a year, my experience is that, when someone lodges an application, it is sometimes the case that they do so in a way that would appear to be vexatious or frivolous. However, in some cases, when you look at the substance of the objection, it is quite clearly a case well made.

People who make an objection, who may intend to make a frivolous or vexatious objection, always make an argument. It is always incumbent upon the tribunal to determine the outcome of the objection on the basis of its merits, not on the basis of the intention of the person making the objection. I think it is extremely difficult to say that an objection is frivolous or vexatious, if the appellant is making an argument on, say, tree protection or set backs. The tribunal must be obliged, at the end of the day, to make a judgment about the objection on the basis of its merits, not on whether or not the intent of the objector is to be frivolous or vexatious.

I do not believe that Mrs Dunne's amendment is either workable or appropriate. The government's amendment, which Mrs Dunne is seeking to amend, simply clarifies the circumstances in which the tribunal has the capacity to award costs. The government's approach to this issue is this: in circumstances where a party to a hearing does something to deliberately obstruct or hinder the processes of the tribunal, it is open to the tribunal to award costs. This was discussed at the round-table meeting. It was a matter about which a number of members-if I recall correctly, Ms Tucker and perhaps Ms Dundas-raised a concern.

What the government has therefore sought to do is refine and clarify the intention of the bill. The government's amendment replaces the cost provision in the bill with a similar provision that makes clear the very limited circumstances in which costs can be awarded. The provision inserted in the bill by this amendment is an improvement because it clarifies what is meant by contravention of a tribunal direction.

It also defines what the tribunal must consider when deciding whether it would be in the interests of justice to award costs. The tribunal will only be able to award costs in situations where a party has contravened a tribunal direction, and it is in the interests of justice that the party should be made to bear the associated costs. Again, the power to award costs is to be used at the discretion of the tribunal in the specified circumstances.

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