Page 2222 - Week 06 - Wednesday, 23 June 2010
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The second argument against the change involves the discrete category of litigation that arises where a business operator challenges the validity of an administrative decision which confers an advantage on their competitor. The concern is, of course, that it is unjust to allow a rival to interfere with the other party’s rights as determined by the regulator and that we should not be facilitating this type of litigation, especially as this serves a commercial and therefore private rather than public purpose. The Greens agree with this idea.
This amendment will not, in reality, give rise to these concerns. The principal reason is that it does not apply to town centres, where most of these types of cases would apply. Further, this applies to merits review in the ACT and does not affect the common law standing rules or the application of the AD(JR) Act and judicial review, which may well be the focus of the more complicated arguments put in these type of cases.
What the amendment does is remove the requirement of a material detriment. Currently, the tribunal’s time is essentially wasted on standing matters when it could be spending that same amount of time deciding the merits of the case. ACAT has given us some guidance on what material detriment actually means, but no doubt many more cases could be heard arguing the finer points of exactly what this concept does and does not include. Why? Surely, we must accept that it would be a better use of time to hear the merits of the case and come out with a decision that may actually aid the future application of the Planning and Development Act and clarify the many concepts that are open to dispute. This would make it easier for people to weigh up whether they ought to challenge or whether they have any prospects of successfully challenging an ACTPLA decision they feel is incorrect.
The meaning of the remaining requirement for an interest in the administrative context is best set out in Justice Brennan’s decision in Re McHattan and Collector of Customs (NSW), later cited with approval by the High Court in Allen and Transurban City Link Ltd.
I would like to conclude by returning to the topic of the public interest. These amendments principally address the right of the members of the community to bring matters in the public interest—that is, of no individual benefit beyond what all in the community stand to gain. This may be an environmental benefit or simply improved amenity of our suburbs. There are public concerns with which no private citizen has immediate connection. I refer the Assembly to Australian Law Reform Commission report 78, published in 1996, entitled Beyond the doorkeeper: standing to sue for public remedies, which comprehensively covers this issue and recommends, with some conditions, open standing for public law remedies.
I would like to finally make the point that arguably the single most effective measure that has been adopted in Australia to improve the quality of executive decision making has been the availability of merits review and the requirements for statements of reasons. If we are truly interested in improving the quality of executive scrutiny and delivering better outcomes, these amendments should be supported.
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