Page 3467 - Week 11 - Thursday, 19 September 2013
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Mr Rattenbury’s bill was drafted to give effect to the commission’s findings and, in essence, to expand the standing requirements to increase the public’s access to justice.
The government proposes to address some issues with the Administrative Decisions (Judicial Review) Amendment Bill by implementing a number of targeted amendments to the bill while still retaining and supporting its general thrust. Specifically, there are three amendments that government proposes to address each of its three main concerns: the retention of the “person aggrieved” test to review planning and development as well as heritage decisions, restricting eligibility to apply for review and restricting the definition of “eligible person”.
Firstly, land planning and heritage matters need to be excluded from the operation of the bill. The government wants to avoid strategic lawsuits designed to frustrate the policies and objectives of the elected government of the day, or to obtain competitive advantage. The government’s amendments take into consideration the strong opinions expressed by stakeholders that when it comes to land planning and heritage matters that the status quo should remain in relation to them.
The government proposes that the current “person aggrieved” test continue to apply to land planning and heritage matters as the existing review mechanisms are sufficient, well established and appropriately balanced. This is a well-settled area of the law and the introduction of unnecessary change does not, in the government’s view, serve any clear purpose.
Allowing the bill to apply to planning and development decisions could significantly weaken the ACT’s planning processes and adversely interfere with the orderly provision of important public infrastructure and private development to support the growth of the city. The exemptions of specific acts and decisions in schedule 1 and schedule 2 of the Administrative Decisions (Judicial Review) Act 1989 continue to apply and are not affected by the proposed bill or the government amendments. Also, the common law right to review of decisions on application to the Supreme Court still remains.
The government’s second amendment recognises that the right to apply for review needs to be restricted from the proposal in the bill. The requirements that must be satisfied in order for a person not to be able to make an application need to be adjusted in order to exclude more people from automatically being able to launch applications. The current requirements in the bill exclude very few people from applying for review.
This can open the government to potential abuse of process as people who have no interest in the matter will be able to seek review in relation to it. The threshold for being excluded from applying for review is very high, so almost anyone can apply for a review. The government, along with the courts, has been working for some time to reduce court delay. The government does not intend to endorse anything that has the potential to reverse the trend towards shorter waiting times by potentially flooding the courts with unmeritorious proceedings.
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