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Legislative Assembly for the ACT: 2004 Week 05 Hansard (Thursday, 13 May 2004) . . Page.. 1851 ..

The scrutiny of bills report raises the question of rights in relation to—to paraphrase—sidestepping the right of appeal by rewriting the rules. I note that there is, unfortunately, an inaccuracy in the report. At the end of the second paragraph in relation to clause 6, there is a statement that says, “The rights issue is raised by the fact that this new rule would apply in the determination of any appeal taken from the decision of Crispin J”. I think that is a misinterpretation of clause 4 of the regulation. Clause 4 specifies, “The new set of regulations do not apply to any applications for development that were lodged before the commencement of the new regulations”. As I understand it, this means that an appeal to the Crispin judgment would be determined under the old regulations. It does, however, mean that, should the government find a way to withdraw the original application, it will circumvent that scrutiny.

I would like to point out two rights issues raised by the scrutiny report—firstly, the removal of the rights to appeal and, secondly, the effect of this change to the rules when cases are under way. I will read one section from the scrutiny report. Hopefully members have read it. We obviously have not seen a government response at this point, except a letter, which I have just seen. One point we make in the report that I think is interesting is as follows:

the effect might be to diminish public confidence in the appeal courts, given that they will be perceived to be associated with the change in the rules. (It is the effect of the law on how the courts are perceived that is critical: Nicholas at 220 [110], per McHugh J.) The result is that the law makes it more difficult to maintain public confidence in the administration of justice by the courts …

An independent line of argument might be founded on the fact that the law is aimed at the particular litigation concerning the O’Connor Ridge. This may not in form be the appearance of the effect of clause 6, but in substance this is its effect (as the Explanatory Statement acknowledges); and see Nicholas at 260ff per Kirby J. Some judges take legislative judgment aimed at particular people is an indication that the law interferes in the curial process … Justice Gaudron has taken the view that laws that are specific and not general in their operation may be invalid because they require or authorise the court “to proceed in a manner that does not ensure equality before the law …

We also make the point:

Whether the Act constitutes an impermissible interference with judicial process, or offends against Ch III of the Constitution, does not depend upon the motives or intentions of the Minister or individual members of the legislature. The effect of the legislation is to be considered in context, and the plaintiff is entitled to point to the litigious background for such assistance as may be gained from it. However, it is the operation and effect of the law which defines its constitutional character, and the determination thereof requires identification of the nature of the rights, duties, powers and privileges which the statute changes, regulates or abolishes.

It goes on. I realise I cannot read the whole thing. (Extension of time granted.)

I note with some concern too that, if the debate had gone ahead as requested by Mr Hargreaves last week, there would have been no time for this scrutiny. As it is, there was time for a special meeting of the committee to consider this regulation but the

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