Page 2003 - Week 07 - Thursday, 23 August 2007
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If people know that the government wants a particular development to go ahead, they may be discouraged from lodging an objection because of the possibility that the minister will call in the project and deprive them of any appeal rights, or practical legal avenue of redress anyway. I know that one of the previous minister’s advisers said that his prolific use of the call-in powers was largely the result of commercial interests abusing the appeal processes to delay and damage their competitors. I do not doubt that this is true, but it was not only because of such abuse. Of course, call-in powers can be used to stop objections of people in the neighbourhood as well.
Call-in powers are not the only way to deal with such abuse. Other jurisdictions give tribunals the power to strike out matters that are perceived to be an abuse of process by commercial competitors. They also have penalty provisions to punish any such abuses. Was this approach considered? Indeed, was there any genuine attempt to solve the problem of frivolous and anticompetitive legal actions by means that did not disenfranchise the community? I suspect that the argument of abuse of appeal mechanisms by developers is a convenient smokescreen to remove those pesky do-gooders from getting in the way of development.
I welcome the limited appeal rights for community organisations that have been included in this bill. They are better than nothing. I hope not too many legal resources are wasted in arguing over whether a group’s objects clauses are sufficiently related to the development to award it standing. I fear that this may be the case.
Where is the requirement for the use of call-in powers to be referred to a committee, or where is the obligation on the minister to give a detailed statement of reasons for his or her decision? These powers lend themselves to the corrupt peddling of political power and improper influence by sectional interests. Political so-called “donations” from developers have corrupted the political process in other jurisdictions. We do not want to do anything that encourages the peddling of political influence.
The Development Assessment Forum, or DAF, which came up with the basic planning model that we are adopting, was itself set up and funded by the Howard government. In the opinion of the senior legal officer of the Environmental Defender’s Office, “the DAF model has as one of its aims the exclusion of community participation in the planning process”. The restriction of appeal rights, limited legal standing, abolition of independent advisory bodies, limited referral to committees and broad call-in powers are all part of a system that, in the words of the President of the Local Government Association, Mike Montgomery, “is an assault on the democratic right of communities to control the planning process”. No wonder the development lobby thinks it is such a fine, best practice, cutting-edge model for planning reform.
This government has made a few amendments that ameliorate the system somewhat, such as the granting of standing to entities whose objects clauses are concerned with the issue under dispute. However, these measures do not go far enough and I have no confidence that the call-in powers will not be abused either by this government or by a future Labor or Liberal government. This government does not seem to appreciate that it is not making laws just for itself. The laws that you pass here today will be implemented by a future government too. Even if you think you can be trusted with
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