Page 2867 - Week 09 - Thursday, 18 August 2005
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I understand from the estimates process and from the briefing has already commenced, will take about another year.
The bill, as it is currently drafted, has no sunset clause. It means the moratorium can go on forever and a day. I had proposed to move an amendment to implement a sunset clause, but amendments from the government essentially institute a sunset clause. The moratorium will last for two years. The moratorium will commence on the day this bill is enacted, and that is a matter of considerable concern that I will address again in speaking to the amendments.
There are serious doubts about proposed new section 63B, that is, the ability to create a moratorium, because it goes directly to the circumstances upon which a licence to extract water can be granted. It not only goes to environmental issues but also goes to property law and constitutional law. It is important to bear in mind that currently there is a case in the ACT Court of Appeal, that of Rashleigh v Environment Protection Authority, which has direct bearing on this piece of legislation. The principal reason the opposition will be opposing this part of the bill is that the property law issues at stake here are unresolved and are currently before a court. Environment Protection Authority officers have advised me that that matter is listed in the Court of Appeal for November and it is the contention of the opposition that the moratorium should not be instituted until the matter of Rashleigh and the. EPA is resolved in the Court of Appeal.
By way of background, the original case was in the AAT. The AAT found for the Environment Protection Authority. The applicant then took the Environment Protection Authority on appeal to the Supreme Court. The original case and the appeal dealt with complicated legal issues arising out of section 23 (1) (a) of the self-government act, which deals with the acquisition of property without just compensation. As I understand it, the Supreme Court found that a denial of licensing rights amounts to a denial of property rights. These points of constitutional property law, as they relate to sections of the Water Resources Act 1998, are currently the subject of legal appeal. It was an appeal that was instigated by the government. As I have said, for that reason alone, it would be highly inappropriate for us to proceed with this legislation at this stage.
If we were to support a moratorium, there should also be a sunset clause. That has been addressed to some extent by the government. Government officials say that it would only take them 12 months to undertake their review. I would have thought a 12-month moratorium would be sufficient, but it seems the government want to have a considerable leeway and they want their moratorium to run for two years. I think it is probably not worth the quibble over that.
There is another problem with the bill. It relates to proposed new section 63B, which would take away the right of anyone to appeal against any related decision through the application of the Administrative Decisions (Judicial Review) Act. I have spoken at length in this place about the capacity of this government to take away people’s rights of appeal. There was one case where there was general agreement that, in a small, one-off case, that would be reasonable, and we did discuss it at great length in this place when we instituted the enabling legislation in relation to Gungahlin Drive.
But there have been a number of cases in the genetech legislation that provided for the removal of appeal against administrative decision through the AD(JR) Act. Here again,
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