Page 2220 - Week 06 - Wednesday, 23 June 2010
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on the part of ACTPLA, who are administrators of the system and should not make that type of mistake. This is a fair and reasonable application of this type of clause.
Exactly the same principle should apply in the instances covered by the bill. ACTPLA administers the notification scheme and it is therefore at a significant advantage over the average member of the public who would know very little about the notification requirements in the Planning and Development Act. There is very little cost involved to correctly notify the development application and it could well be that members of the public may be forced to suffer a significant detriment without ever having had the opportunity to put their case. Given the reliance our planning system places on objector comments, it is proportionate and reasonable to ensure that the community are given a fair opportunity to have their views heard.
The second key issue is the proper ACAT review of ACTPLA decisions. The current schedule 1 to the Planning and Development Act sets out 49 reviewable decisions. Only one, the review of merit track decisions, has this additional limitation that confines ACAT to the extent that the development proposal is subject to a rule and does not comply with the rule or is not subject to a rule. This is inconsistent with section 68 of the ACAT Act, which provides, at subsection (2):
The tribunal may exercise any function given by an Act to the entity for making the decision.
It is also inconsistent with the well-established principle of merits review that the reviewer should stand in the shoes of the decision maker. In Drake and the Minister for Immigration and Ethnic Affairs, Justices Deane and Bowen established that the role of merit review tribunals is to determine the question as to whether the decision that was made is the correct or preferable one on the material before the tribunal. That is, the tribunal is not restricted to the material that was considered by the decision maker or even by the material that was presented by the parties.
This is a well-established role of Australian merits review tribunals and I see no reason for a departure from it for the decisions of ACTPLA in approving, or otherwise, decisions in the merit track. The ACAT Act adopts the same language as used in the Administrative Appeals Tribunal Act, which was the subject of review by the Federal Court in that case. I have no reason to think that it would be applied any differently in the ACT.
I have reviewed the 56 ACT acts which have a schedule of reviewable decisions that provide for ACAT to review decisions. I seek leave to table a list of the acts rather than reading them out.
Leave granted.
MS HUNTER: I table the following paper:
Acts that include schedules of reviewable decisions—List.
I think that this is all; if not, it is very close to all. I have not found a single reviewable decision, of the many hundreds of reviewable decisions listed in the schedules to each
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