Page 1091 - Week 03 - Thursday, 18 March 2010
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confirms that a tribunal rule cannot prescribe a time for doing a thing that is longer than the time prescribed by an authorising law, if the authorising law provides that the thing cannot be done in the longer time. Any procedure under an authorising law for dealing with an application prevails over the procedures set out in the rules for dealing with the application. Members’ attention is drawn to section 27. For example, the Planning and Development Act 2007, section 409(3) provides that the period for making an application for review of a decision under that act cannot be extended. That provision prevails over any rule to extend the time for making an application under that act.
The bill also contains provisions clarifying that the ACAT is not required to produce a statement of reasons with respect to interim orders, including orders of a procedural nature. On introduction of the ACAT Act, it was not the government’s intention to require tribunal members to produce written statements of reason in relation to interim orders or other orders of an ancillary nature.
Requiring statements of reasons for every interim decision would place an undue burden on the operation of the ACAT and lead to unnecessary delays. Such delays potentially conflict with one of the key objects of the ACAT Act under section 6(c), being to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice. There is also potential for litigants to take advantage of any perceived uncertainty in this regard and seek written decisions for all manner of orders to delay a final decision.
The proposed amendment seeks to clarify government policy in this regard, balancing the right of a party to seek reasons to a substantive decision without unduly burdening or delaying the tribunal in carrying out its duties. It remains possible, of course, for the tribunal to produce written reasons for interim and interlocutory decisions if it considers it appropriate to do so.
One of the things that we need to be particularly cautious about in terms of our treatment of appellants, particularly in relation to costs, is that we allow the procedure and the processes to be able to distinguish between a vexatious litigant and somebody who is seeking to have justice before the law who may not have the means to actually pay for an unsuccessful challenge. It is not in the interests of justice to put all appellants in the same position with respect to appellant costs and we should be very careful about doing that in the context of legislation. I do not think anybody would have any difficulty in saying to people that if they are going to be a vexatious litigant—and, heavens, we have had a few of those, I recall; in fact, the Save the Ridge group, in my view, were vexatious litigants—
Mr Rattenbury: Yes, trying to protect our nature parks is vexatious to you, John.
MR HARGREAVES: I hear Mr Rattenbury interjecting, Madam Deputy Speaker. I might remind the honourable Speaker—and I use both of those words in the interim—that in fact they did strive to protect a disused rubbish tip. It is no surprise to me at all that the Greens party would seek to protect a rubbish tip. But there is some sort of conflict here actually when you consider that they do not want us to put anything into the Mugga Lane tip, to preserve it for archaeological purposes. But they were quite happy to protect the same process on O’Connor Ridge.
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