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Legislative Assembly for the ACT: 2004 Week 05 Hansard (Tuesday, 25 May 2004) . . Page.. 2171 ..

mediation and case conferences are issued in civil proceedings, the context and purpose of such requirements are entirely different. It is drawing a long bow to suggest that concerns relating to authorisations that have not been given to environmentally damaging activities, for example, are the same as a civil dispute on a broken contract. It is also drawing a long bow to suggest that simply notifying the minister, who is the party responsible for the alleged breach, is somehow the same as the mediation or case conference.

It appears to be a profound erosion of the rights of citizens to ensure that proper authority has been granted for an environmentally damaging activity that is being carried out. The right of citizens here relates to the right to a healthy and clean environment.

Question put:

That clause 12 be agreed to.

The Assembly voted—

Question so resolved in the affirmative.

Clause 12 agreed to.

Clauses 13 and 14, by leave, taken together and agreed to.

Clause 15.

MS TUCKER (12.45): I will be opposing this clause also. I do not support the removal of access to the AD(JR). The AD(JR) reviews the lawfulness of decisions. I do not believe that this really basic scrutiny of the legality of government actions ought to be sacrificed to convenience. At first, on the face of it, it appeared that it would be difficult to mount a case, difficult to find a lawful requirement on the minister in this bill which could be challenged, either under AD(JR) or in the Supreme Court. The absolute discretions phrase, together with the absence of any criteria for decision-making, seemed to leave almost no purchase for appeal. This made it, I think I said in comment on the bill’s appeals rights, somewhat decorative.

However, I have since been advised that the courts will in fact look at the intent of the statute. In this case, this would mean the underlying statutes—the Environment Protection Act, the Heritage Act, et cetera—apply so that, where the minister is put in the position of decision-maker by the GDE Authorisation Act, the minister cannot ignore the intent of those statutes. So it is really important to try to keep this here.

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