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Legislative Assembly for the ACT: 2004 Week 07 Hansard (Thursday, 1 July 2004) . . Page.. 3173 ..

could be established. The Supreme Court brought down a judgment on what I understand to be the topic of public interest, although I have to say that I am working on the reporting of the judgment rather than the judgment itself. On Tuesday 22 June an article in the Canberra Times written by Roderick Campbell and Scott Hannaford states:

Justice Madgwick said that he had granted the temporary injunction because the possibility of significant and irreparable harm being done to native fauna and flora during construction narrowly outweighed the financial cost to the ACT of further delays and the fact that the Assembly had passed laws intended to facilitate construction of the GDE.

To me that seems to be weighing up what is in the public interest. If I understand this amendment correctly—and I cannot be absolutely sure that I do because we have not had time to obtain considered advice—it will make it explicitly clear that no-one but the territory, that is, the government, will have any standing to argue any case about the public interest. It is of great concern that this law, which is being rushed through this chamber, will ensure that, for the construction of the Gungahlin Drive extension, only the government would be deemed to understand the public interest for the purpose of gaining standing to test actions and decisions made by the minister. That is really moving towards dictatorship.

Tim Bonyhady, professor in the Faculty of Law and director of the Australian Centre for Environmental Law at the Australian National University, in an article in the Canberra Times on 21 May this year entitled “Stifling activists does us all harm in the long term”, argued against the government’s policy of amending the law when a case is lost in the courts. He discussed the earlier ACT Supreme Court case in which Justice Crispin found that Save the Ridge was entitled to bring its action as its case was well founded. Bonyhady wrote:

The Government, the judge held, had failed to obtain development approval for its actions.

This sequence of events is a vindication of our democracy. It is a story not only of members of the public’s having access to the courts but also of government’s being subject to the general law rather than above it. The proper democratic consequence should be for the Government to comply with the law it has breached as any ordinary citizen would be expected to do.

The ACT Government has ignored this principle. First it introduced regulations to remove the need for development approval, just as it introduced other regulations to stop a second challenge by Save the Ridge to the ACT’s Administrative Appeals Tribunal. Now it has introduced legislation to authorise the road and free it from challenge on the ground that further litigation would be “expensive and divisive” and would not “reflect the wishes of the Canberra community as a whole”.

This legislation flouts the principle that general laws should not be undermined by special provisions for specific cases. It offends also the principle that law should not operate retroactively by validating unlawful acts. The Government’s argument about popular support for the road misses the point that access to our tribunals and courts should not depend on opinion polls.

Professor Bonyhady criticised the Liberal Party’s territorial significance bill and stated:

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