Legislative Assembly for the ACT: 1998 Week 9 Hansard (18 November) . . Page.. 2630 ..
MR SMYTH (continuing):
Mr Speaker, this was not in contradiction of recommendation 95 of the Stein inquiry, as implied by Ms Tucker. Ms Tucker fails to consider recommendation 95 in context with recommendations 88 to 91, which state that the view of the inquiry was that appeals should only be available to adjoining lessees or accredited residents associations who objected to the application. In fact, the Government went further in its response to the Stein report and provided for appeal rights where a direct interest could be demonstrated.
Mr Speaker, the Bill provides for direct recourse to the Supreme Court for the review of decisions made under the Land Act and the Heritage Act. The review of these decisions is initially a role of the AAT, not the Supreme Court, a role which the AAT fulfils competently and efficiently. The AAT provides individuals, residents groups and so on with easy access to a review process which is less formal and costly than the court system. Should direct recourse to the Supreme Court be made available for decisions under land and heritage Acts, significant procedural and resource implications for the court and high costs for the appellants would result.
Ms Tucker's Bill also opens the door for frivolous applications and applications which have no merit. The current provisions of the AD(JR) Act require an applicant to demonstrate that their interests are adversely affected by the decision. This Bill, through its open standing provisions, will enable persons without a direct interest in the matter to apply for the review of a decision. This provides potential for substantial delays in the approval process that could possibly be generated by commercial competitors or others whose main intention is simply to delay a proponent. This is a very undesirable element to introduce into the lease administration system. It would certainly stifle development in the Territory.
There is no sound reasoning for providing open standing provisions for court proceedings in relation to planning, leasing or heritage decisions, or in fact any other government decisions, without appropriate safeguards. As Ms Tucker pointed out in the presentation speech to her Bill, open standing provisions do exist in other State jurisdictions. However, these jurisdictions have related legislation that provides express safeguards for frivolous and vexatious applications of appeal by way of granting costs or requiring financial undertakings from applicants. The ACT Supreme Court does have the power to either stay or dismiss an unmeritorious claim. However, the ACT does not have specific primary legislation that provides a form of express protection.
Mr Speaker, for the reasons I have outlined, the Government does not support Ms Tucker's amendment to the AD(JR) Act. The Government does not accept that Ms Tucker has provided sufficient justification for applying separate standing requirements to decisions made under the Land Act or the Heritage Act. The current standing provisions maintain equity and fairness for all involved in the appeals process and enable the AAT to undertake that role for which it was intended.
MR MOORE (Minister for Health and Community Care) (3.42): Mr Speaker, there has been a long-running debate on this issue since the very first days of the Assembly, and we have had these sorts of appeals mechanisms in place and not in place at different times in the Assembly. When this sort of appeal mechanism was in place, if what Mr Smyth said was true, we would have expected a wide-ranging number of opponents conducting appeals as well. When I say "opponents", I am not talking about community groups