Page 1662 - Week 06 - Tuesday, 3 June 2014
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It is apparent that the two rights, while in some respects similar, are nonetheless separate rights and, as such, the removal of ADJR rights review is a meaningful and significant measure. The measure will minimise delay to the commencement of the special variation and any subsequent development decision on the facility. The scrutiny of bills committee, in its report No 19, also asked for further detail on the difference between the grounds for review under the AD(JR) Act and the grounds for review under the common law.
I do not propose, at this stage, to go further than the points I mentioned in my summary just now. This place, I would suggest, is not the appropriate forum for the government to discuss at length what can be a complex matter of law, and nor is it appropriate for the government to set out a detailed position on a subject that has been and is likely to, again, be a question arising in some future litigation.
I would, however, make the final point that it is appropriate to consider the removal of AD(JR) Act rights which are created by the legislature and, as such, can and have on a number of occasions been modified by the legislature. But it is neither appropriate nor possible to remove common law rights of appeal to the Supreme Court. These are rights that are the prerogative of the court itself, not the legislature.
Scrutiny of bills also commented that the removal of AD(JR) Act rights of review, in effect, removes a statutory right under that act to receive a statement of reasons for reviewable decisions. This is because, while the ability to request and receive reasons is provided for in the AD(JR) Act, there is no such common law requirement. I would note that this ability to request and receive reasons under the AD(JR) Act is subject to certain exceptions. It is possible that reasons for an administrative decision will not be provided in certain circumstances.
It is also important to clarify the situation with respect to receiving a statement of reasons. Despite the removal of ADJR review rights, legal requirements to provide statements of reasons remain in place. The bill and the existing Planning and Development Act already require statements of reasons. New sections 85B and 85H inserted by the bill require the draft and final special variation to include a statement justifying the variation against the relevant criteria.
In particular, the variation must state how the measure would facilitate the mental health facility at Symonston. A requirement to give reasons will also apply to any development approval decisions in relation to the facility. Sections 170 and 171 of the act require that notices of decisions are to be provided to the applicant and persons who made a representation. These notices of decision must include reasons.
For these reasons, the impact of the removal of ADJR on the provision of a statement of reasons is of no practical consequence. The issue of a statement of reasons also touches on a wider point that is worth emphasising. While this bill will introduce a way to make an instrument to vary the territory plan and potentially accommodate this facility, there is no proposal to depart from the existing development assessment process itself in respect to any subsequent development application. The special variation process does not constitute a development approval. Development
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