Page 2221 - Week 06 - Wednesday, 23 June 2010
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
of these acts, that sets boundaries on what ACAT considers in relation to a reviewable decision apart from the decision subject to this amendment. This is indeed a unique provision and one that I can find no reasonable justification for. As I said, it is contradictory to the 31 years of jurisprudence on merits review tribunals that we have in this country and fundamentally undermines what is one of the world’s most developed systems of administrative law.
This amendment does not seek to do anything radical. Rather, it corrects an error and facilitates better scrutiny by an independent tribunal to ensure that the executive is exercising its functions in accordance with the law and providing a means of redress where the correct or preferable decision has not been made on the merits of the case.
Finally, I would like to turn to perhaps the most controversial issue, the issue of standing. What the amendment does is amend the requirements to bring a matter before ACAT so that an eligible entity for the decision—that is, a person who made a submission during the consultation period or any other person whose interests are affected by the decision—can appear before the tribunal and seek review of the decision. The amendment does not go as far as the New South Wales planning legislation, which provides no limits on those who may appear before a court or tribunal in relation to planning matters.
Why do we have standing requirements? It is important to answer this question before we evaluate what these requirements should be. The best description I have come across can be found in the judgement of Justice Graham in Hussein and Secretary of the Department of Immigration and Multicultural and Indigenous Affairs. He said that standing rules:
… are designed to ensure that applicants only litigate their business. For an application to have standing demands a connection between the applicant’s interest and the relief sought. As a general rule the Court will not recognise busybodies who interfere in things that do not concern them.
The difficulty, of course, is that public law and many planning decisions, by their very nature, are everybody’s business. Standing law rules were developed in the 19th century English courts in the context of private law matters. At that time there were very few public law actions or remedies. They were never designed as a filter or preventive measure so that matters may remain in error for want of the correct person to bring them before a court. All members should remember this when considering the merits of this change.
The only argument that I have heard advanced on this issue is that such a change would mean that too many decisions would be challenged and the planning process unreasonably delayed. Ms Le Couteur has already outlined the most compelling evidence as to why this simply is not the case. Evidence from both the Land and Environment Court and the Supreme Court of New South Wales has found unequivocally that this has not occurred, and their provisions actually go further than ours. The argument has been put that they are a different jurisdiction, so this argument does not apply. With due respect to my colleagues here, that is just a nonsense. Are they seriously suggesting that the people of Canberra are more litigiously minded than those in New South Wales?
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video