Page 110 - Week 01 - Wednesday, 28 February 2007
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There are good reasons for that. People do need to have certainty in their actions. They do need to have certainty when they undertake a court action, as has occurred in this case, that the law as it applies at the time will apply to them and will not be subsequently changed in a way that adversely affects them. It is clear that this legislation does adversely affect some in our community.
That was one of the issues that the committee raised. The committee raised a number of other issues that were of concern to it. I want to highlight a couple of them. This does go to the concern we have, which is why we opposed the suspension of standing orders, with this bill being rushed through. The detailed report of the scrutiny of bills committee raised a number of serious issues. I have already mentioned the principle of retrospective legislation, the precedent that that sets and the concern in terms of retrospectively applying laws which adversely affect people. But other issues also were raised and I put it to the Assembly that they do require further scrutiny.
One is in relation to the question raised on page 6 of the committee’s report; namely, whether the amendments are inconsistent with paragraph 25 (4) (c) of the Australian Capital Territory (Planning and Land Management) Act 1988, which is a commonwealth act. The concern raised by the committee, and I do not know the answer to this matter, is that that paragraph of this commonwealth act, the PALM act, could potentially limit this kind of legislation. Paragraph 25 (4) (c) says:
The law shall include provision for … the procedures for just and timely review, without unnecessary formality, of appropriate classes of decisions on planning, design and development of land ...
The committee has highlighted the issue of just and timely review and whether retrospective legislation amounts to laws that provide for just and timely review, just in particular. As I said, I do not know the answer to that. I have concerns at a broader level that we are limited in this way. I wish this particular piece of legislation, this commonwealth legislation, did not exist. I do not think the territory should be limited in this way. I think we should be able to put forward our planning laws in the Assembly without this kind of interference, but the reality is that this law is in place.
The concern I would put on record is that when this bill inevitably goes through we may well see court action based on this very piece of legislation. We may see court action that challenges the validity of this law on the basis of the PALM act. I do not know whether that would be successful. As I say, I would prefer that we not have such a piece of legislation, but we are bound by it. That is another issue that the Assembly needs to consider. It is an issue the minister needs to consider as to whether he is going to be buying further litigation as a result of this amendment.
The other issue raised by the committee has raised that I want to highlight is in relation to acquisition of property on just terms. As members would be aware, there is a requirement under paragraph 23 (1) (a) of the Australian Capital Territory (Self-Government) Act that any acquisition of property be done on just terms. The question, obviously, where we have an action on foot and we have an entity which has had some success in its court action and has obviously expended money in relation to that, is whether to take away that right of appeal or to take away really the fruits of
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