Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .

Legislative Assembly for the ACT: 2004 Week 05 Hansard (Thursday, 13 May 2004) . . Page.. 1848 ..

the real issues that the government’s legislation presents and these are the issues that should be the real subject of this debate. It is irrelevant whether or not we support the Gungahlin Drive extension or where we believe the Gungahlin Drive extension should be built. This debate is not about whether to build a road; it is about how governments should undertake development and the role of the judiciary in government developments.

For those who need reminding, Western liberal democracies subscribe to a fundamental belief that there should be a separation between those who enforce laws and those who interpret the law. In this case, we are presented with a government who wishes to build a road. However, in our system of government it is the legitimate role of the courts to determine whether the government has complied with the law in doing so. This also means that, in order for the court to fulfil this, the people of Canberra should have reasonable access to the courts in order for them to make that judgment.

The proposed change to legislation breaks this principle. This change will mean that the executive will be the only judge as to whether the law has been complied with. This is an inappropriate removal of the role of the judiciary and reduces the rights of the people of Canberra. Once again we see that this government, the Stanhope Labor government, who professes to protect the rights of people of the ACT, actively taking those rights away.

The second issue is that this sets a precedent for governments to avoid the scrutiny of the courts by way of regulation. There are existing call-in powers available to the minister that already achieve this end. I will restate the Democrats’ opposition to those call-in powers, which also have the effect of removing scrutiny by the judiciary. However, at the very least the current arrangements for the use of call-in power must undergo consultation with the Planning and Land Council and the results must be tabled in the Assembly.

This requirement has been sidestepped by the piece of legislation before us, opening up a new door for governments to call-in developments without going through the established processes. The fact that the call-in powers already exist begs the question of why this legislation is necessary in the first place as there is already a mechanism to achieve the government’s desired outcome. The same issue is raised by the fact that this effectively introduces a new mechanism by which a government can avoid the scrutiny of the courts. However, why should this only be used where the government is the developer? Why should other developers not have the right to avoid the same scrutiny by a change to the planning regulations? This change opens a Pandora’s box whereby suddenly governments have the ability to remove the scrutiny of the courts at a whim. The Assembly should rightly refuse this interference to help ensure that it does not occur in the future.

These regulations offend against Westminster ideas of the separation of powers, are unnecessary and sidestep existing planning requirements—in fact, they go above and beyond what the government is trying to achieve. These regulations create one law for the government and another for everyone else. Regardless of the arguments about whether the Gungahlin Drive extension is a bad policy decision, these regulations are, without a doubt, bad law. The ACT Democrats will be supporting the motion to disallow them.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .