Page 3466 - Week 11 - Thursday, 19 September 2013
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The government notes and supports Mr Rattenbury’s efforts to simplify what has become a complicated area of the law. The government agrees that legal challenges should focus more on substantive issues and the administrative decisions in question and less on whether or not a case may be brought by an applicant. But we must take care that our best intentions do not undermine the practical operation of existing laws.
The government therefore supports relaxing the standing requirements for bringing proceedings under the act, but has three main concerns about the AD(JR) Amendment Bill. Firstly, the open standing provisions in the presentation bill would apply to the Planning and Development Act 2007 and the Heritage Act 2004. AD(JR) applications could be brought to delay or defer planning and land processes in circumstances where it would be frivolous or vexatious or might unduly interfere with legitimate processes for no public benefit.
Secondly, the requirements that must be satisfied in order for a person to be excluded from applying for review of a decision or applying for reasons for a decision exclude very few people from applying for review, which has the tendency to open government to potential abuses of process as people who have no interest in a matter are able to seek review in relation to it. Thirdly, unlike the standing rules in the ACAT legislation in relation to administrative review, there is no restriction on creating an organisation or association after a dispute arises, for the sole purpose of initiating proceedings. Under the ACAT Act only organisations or associations in existence at the time a matter arises may take action.
Access to justice issues are particularly pertinent when dealing with administrative decisions of government. There is a welcome trend towards increasing transparency of government and this includes the opening of government decision making to public scrutiny. However, there needs to be balance in pairing this with powerful injunctive relief. The proposed government amendments to the bill give effect to this need to strike the appropriate balance.
The revision of the standing requirements is based on the Australian Law Reform Commission report No 78 Beyond the Doorkeeper—Standing to Sue for Public Remedies. Under current law in the ACT, it is not open to just any member of the public to commence litigation. A person must have standing to commence proceedings. Various tests are used to determine what is sufficient standing. In the ACT, the existing AD(JR) Act specifies the “person aggrieved” test: “a person whose interests are, or would be, adversely affected”. The policy rationale behind this is that the best person to conduct litigation in court is the person most affected by a decision, conduct, or controversy.
The Law Reform Commission’s report recommended that these restrictions be removed in favour of open standing and any person should be able to commence proceedings having a public element, subject only to two limits: a person should not be able to commence these proceedings if the relevant legislation provides otherwise, or the litigation would unreasonably interfere with the ability of a person having a private interest in the matter to deal with it as he or she wishes.
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