Page 2868 - Week 09 - Thursday, 18 August 2005
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in the Water Resources Amendment Bill, the basic right to the separation of powers, where the executive’s decision should be subject to review, will be taken away. Despite a request from our office, the government has failed to give any compelling reasons that would justify inserting this section into the legislation. To allow legislation exempting executive decisions from review of the courts with seemingly no explanatory statement is a very dangerous precedent.
The government appears to put forward the position that it is all right to remove statutory rights to administrative review because common law rights still apply. That is simply a stupid argument. If we allow people to seek review under common law principles, why do we have to remove their statutory rights? We had this debate here when we looked at the Gungahlin Drive extension bill. Leaving people only their common law right is a very narrow right and it is very difficult to prove. It is now acknowledged that people do have rights to judicial review of administrative decisions and they should not be taken away in this place. The burden that the Assembly should require before exempting the executive from administrative review should be an exceptionally high one. But in this case the government has offered no reason that such an exemption should be made. It has defiantly not met its burden in demonstrating why we should support this part of the bill.
It is sometimes perplexing to hear the minister, in his other guise as the Attorney-General, talking about human rights. He touts himself as a civil libertarian. On this occasion he is being somewhat hypocritical. We are going pell-mell towards seriously curtailing people’s rights. There is a certain arrogance in legislating on matters currently before the courts, a certain arrogance in trying to pass legislation that might put decisions in the courts in doubt. I would be particularly interested to hear what the Greens will be doing with the provisions for administrative review. The Greens also have quite high standards on civil liberties and I hope they will be taking some steps to protect the fundamental principles of the system that we are supposed to uphold in this place.
In summary, this bill, as with most bills that come from the government, is a bit of a curate’s egg. We will be supporting the first part of the bill with reluctance, not because there is anything intrinsically wrong with the first part of the bill but because of the complete lack of cooperation that we have received from the minister and his office and officials on this matter. We will be opposing the amendments in relation to the moratorium and opposing the moratorium in the detail stage.
DR FOSKEY (Molonglo) (10.54): I thank Mrs Dunne for a very detailed analysis. I fear that I may be going to disappoint her because I am going to support the bill. I do not know whether she actually dealt with the difficulty of the issues. No-one ever said the Human Rights Act would be easy to apply, or I do not believe they did, and it is always going to be a balancing process. I was part of the Standing Committee on Legal Affairs which analysed the bill and we were always going to come across this issue of restrictions on human behaviour being weighed up against benefits to the environment. I guess this is a communitarian approach versus individual people’s approach and, given that water licensing is now separated from land licensing, there is going to be a complexity of issues that we are going to have to deal with.
We will be supporting the Water Resources Amendment Bill, which essentially creates a moratorium on the granting of water permits and licences under the act while guidelines and criteria are developed to guide such decisions. We were particularly
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