Page 3475 - Week 11 - Thursday, 19 September 2013
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Under the government’s test a person will be ineligible to reply for review if the interests of the person applying for review are not adversely affected by the decision and the application fails to raise a significant issue of public importance. The government’s approach uses some of the Greens’ original criteria but provides a more effective filter for eligibility. The government’s amendments support the general thrust of the bill but draw a line between people who should be entitled to access decisions and reasons for decisions and people who are strangers to those decisions.
In proposing these amendments the government is mindful that the right to apply for review also gives a person a right to ask for reasons for a decision. Without these amendments, it is possible that the AD(JR) act would have allowed legitimate government processes to be subverted and delayed by individuals seeking a commercial advantage through requests for reasons for interim stage decisions.
Previously, the person aggrieved test applied to judicial review in relation to all decisions to which the AD(JR) act applies, including under the Planning and Development Act 2007 and the Heritage Act 2004. Schedule 1 of the Administrative Decisions (Judicial Review) Act 1989 lists discrete exceptions. The government position, as I have already outlined, is to retain the person aggrieved test for planning and heritage decisions. These types of decisions are category A decisions in the government’s amendment. All other decisions are known as category B decisions and the open standing test applies to them.
The threshold for applying for review in current proposed section 4A(2)(b) in the Greens’ bill prevents people from applying for review only if all of the following apply: (a) the interests of the eligible person—the person applying for review—are not adversely affected by the decision; (b) the subject matter of the application is a decision about an individual; (c) an order of review in relation to the decision may prejudicially affect the individual; and (d) the application fails to raise a significant issue of public importance. This is an extremely high threshold of preventing a person from applying for review, and it is the government’s view that a simpler test which lowers the threshold for exclusion should be applied instead.
Therefore, the government proposes a test that would make a person ineligible to apply for review if: (1) the interests of the eligible person are not adversely affected by the decision; and (2) the application fails to raise a significant issue of public importance. This approach allows more potential applicants to be removed from the class of people eligible to apply for a review of decisions under AD(JR).
The government also proposes an amendment to restrict the dictionary definition of “eligible person”. The definition will include a requirement that an organisation be in existence prior to an administrative decision being made in order to have standing for review of the decision. This is consistent with the approach in the ACT Civil and Administrative Tribunal Act 2008, which has operated successfully to date. This amendment will lessen the prospect of corporations and associations being established solely to fight particular decisions.
I commend the government amendments to the Assembly.
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