Page 3472 - Week 11 - Thursday, 19 September 2013
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As outlined in my presentation speech and the ES, the bill seeks to implement the Australian Law Reform Commission recommendations. In responding to some of the issues raised by others in the debate, it is worth reiterating part of the overview to the report:
The current law on standing for proceedings of this kind is counterproductive. It acts as an extra source of unnecessary legal costs and delay. It does not act as an effective filter for disputes that are futile, vexatious or otherwise inappropriate for litigation. Such a filter is provided by other laws and discretions available to the court.
It also acts as an unpredictable technical barrier. In particular the “special interest” test can be uncertain, complicated, inconsistent and overly dependent on subjective value judgements. This can make the legal system appear unfair, inefficient and ineffective.
The standing rules do not work as a gate guarding Australia against a flood of litigation or guarding Australian business against damaging and meddlesome interference. Experience over the last ten years indicates that there is not a flood of litigants waiting to be released and that, even if there were, standing tests are not an effective restraint.
Where there is a need for protection against damaging interference in government regulation of business and other activities, this requires better case management and better government decision making. The law of standing does not help.
Those words from the Australian Law Reform Commission are fairly compelling. Conversely, the availability of external review as well as the requirement to give reasons improves the quality of decision-making, so not only does the availability of review ensure redress is made, it actually reduces the errors in the first place.
In the context of planning laws, which we will return to in the detail stage, the Chief Judge at Common Law of the Supreme Court of New South Wales, Justice McClellan, said in a 2005 article that, as a result of the open standing provisions in New South Wales, many of the cases heard have “significantly enhanced the quality of environmental decision-making within New South Wales”. This is not some green lawyer; this is the Chief Judge at Common Law of the Supreme Court of New South Wales making those remarks.
To put it bluntly, there really is not a single redeeming feature of the current law of standing. It has proven to be unnecessary, wasteful and counterproductive, and no informed analysis of it has ever shown otherwise. Certainly, there are particular interest groups in the community who are quite happy with the status quo, most notably—perhaps, in fact, even only—the Property Council. It says something that those who are wealthiest are the ones happiest with the status quo. I am not at all surprised the Liberal Party would want to stick with that position. Although, it is interesting that yesterday the Liberal Party was claiming to be concerned about the rights of the residents of Uriarra to be able to seek review of a planning decision and
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