Page 118 - Week 01 - Wednesday, 28 February 2007
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accrued at the time the legislation was enacted. This is a principle of statutory interpretation. However, it is clear that the legislature has powers to retrospectively interfere with accrued rights, and the courts have recognised this power. The statutory interpretation principle does not lead to a conclusion that a person has a right not to be adversely affected by retrospective law. No such right exists.
In any case, the bill does not unduly trespass from the general principle that a legislature should be taken not to intend to interfere with accrued rights, because it is clear that under the bill it intends to do that. The intention to do so, however, arises because of a court decision that has an effect that was wholly unintended by the making of regulation 10A. The making of that regulation, which was not opposed by those on the other side of this chamber, was intended to remove the right to appeal against decisions approving development in the Civic centre area, town centre areas and industrial areas.
The regulation was made before there was any development approval or any appeal that resulted from the court decision. As the court decision showed, the amendment did not achieve its intended effect and this amendment seeks only to maintain the previous position. This issue of correction of the intended effect of the legislation is relevant to each of the other issues that I will now address. The scrutiny of bills committee also raised the issue about whether or not the amendments were inconsistent with paragraph 25 (4) (c) of the Australian Capital Territory (Planning and Land Management) Act 1988—the commonwealth act.
This paragraph of the PALM act was taken into consideration in drafting the bill, and the government has received legal advice that the amendments are not inconsistent with this paragraph. The scrutiny of bills committee also asked: would the bill, if passed, amount to an exercise of legislative power that is an interference with, or infringement of, judicial power?
This amendment is to correct the failure of the current legislation to reflect the government’s policy and the legislature’s intention in relation to appeals against decisions upon development in the Civic centre area, town centre areas and industrial areas. It is not directed towards a specific person or persons. The amendment has been undertaken at the first opportunity that was available after the failure of the current legislation became clear as a result of the court decision.
The next question the scrutiny of bills committee asked was: does the scheme of the bill amount to an acquisition of property, otherwise than on just terms, contrary to paragraph 23 (1A) of the Australian Capital Territory (Self-Government) Act 1988. This issue was also considered by the government and legal advice received in regard to this matter. Our advice again is that the bill does not seek to acquire property other than on just terms.
Finally, the committee asked: does the scheme of the bill derogate from the rights stated in subsection 21 (1) of the Human Rights Act and, if so, is the derogation justifiable under section 28 of the Human Rights Act? The scrutiny of bills committee itself concluded there is no derogation of rights from rights under subsection 21 (1) of the Human Rights Act.
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