Page 1661 - Week 06 - Tuesday, 3 June 2014
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MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services, Minister for Workplace Safety and Industrial Relations and Minister for the Environment and Sustainable Development) (11.38), in reply: In closing the in-principle stage of this bill, I will simply seek to address some of the issues raised by the scrutiny of bills committee in its report No 19 of 27 May, where it commented on this bill. It noted the proposed limitations in the bill in relation to third-party review and referred to its comments in report No 16 of 1 April on similar proposals from the now withdrawn Planning and Development (Project Facilitation) Amendment Bill. The committee commented that the limitations raised human rights implications, and I would like to respond to a number of these comments.
The following points were made in relation to the now withdrawn project facilitation bill, and the committee indicated that these points applied equally to this bill. In accordance with case law, human rights legislation does not guarantee a right of appeal for civil matters, but any restrictions need to be considered in the context of other avenues of input. An example of an alternative avenue is the right to comment on development applications. I would make the observation that this bill provides significant alternative avenues for community input into such decisions.
In its report, the committee commented on the proposed time limits in the bill in relation to Supreme Court common law rights of review, suggesting that the government consider provisions for the Supreme Court to extend the 60-day time limit. The 60-day restriction is a significant measure, and it is intended to confine any court actions to proceedings commenced within that time frame. This crucial measure ensures a degree of certainty and finality in relation to the special variation and any subsequent development decision on the Symonston mental health facility. The cut-off date means that the community, government, industry and the proponent are able to proceed with confidence that the project will not be disrupted by late legal proceedings, potentially even years after the relevant decision has been made.
Such measures are not without precedent. The Gungahlin Drive Extension Authorisation Act included similar restrictions on court proceedings. I note that the current Planning and Development Act also requires an important challenge to the validity of a provision of the territory plan to be made within three months of the commencement of that provision. So such limitations are justified, given the immediate need for this facility.
I also note that the scrutiny of bills committee has commented on the retention of review under common law and has sought clarification for the differences between administrative decision judicial review and common law remedies. The committee suggested that the removal of AD(JR) alone would be of little practical effect.
I would like to comment briefly and discuss the difference between review under the AD(JR) Act and review under common law. In my response to the scrutiny of bills committee I indicated that these sets of review rights are not identical, and I will reiterate these points. The grounds for seeking review in standing under the AD(JR) Act are codified by statute. The grounds and the test for standing under the AD(JR) Act are arguably wider than those available at common law. In contrast, the grounds for seeking review in standing under the common law are as determined by the state of the common law at the relevant time.
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