Page 3795 - Week 10 - Wednesday, 27 August 2008
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I think it would have been sensible to have a date by which the minister has to review the act, rather than reviewing it between 1 January 2012 and 1 January 2014, which is over five years away. But at least there is something there. Perhaps we are not going to be inundated with cases and that will be fine. So that may be a reasonable time frame.
I am a bit concerned about amendment No 6, which creates a new section 9—“Civil penalty”. If a court is satisfied that a defendant’s conduct is public participation and the proceeding is for an improper purpose, the court can impose a financial penalty on the plaintiff. I think legislation like this probably needs that in order to be effective.
The, as yet unwritten, regulations are supposed to provide guidance on the calculation of the penalty which will serve to discourage plaintiffs from bringing on these cases. The court can then make a penalty order on application by the territory, or on its own initiative, and the court will have power to assess costs on an indemnity basis. I am a little concerned that it is stated that the court can impose a financial penalty and regulations which at the moment are unwritten will provide guidance on the calculation of the penalty. I think it would be great if we could have details of what the penalties are going to be and what the regulations are going to say. I would certainly like to see that happen as soon as possible.
Mr Mulcahy: Oppose it.
MR STEFANIAK: Well, you never know, Mr Mulcahy; we just might oppose clause 6, in terms of the regulations. I think you make quite a good suggestion there. That is something that the attorney needs to get on to, to make sure that this actually works.
We are seeing another example of incomplete legislation. I know this is groundbreaking stuff and everyone has been supportive of it—most people in the Assembly have. But there are going to be a lot of difficulties here and it would be good if we could get it right as much as we can to start with. We would certainly like to see just what the penalties are going to be and what is being proposed. Even if it is an indication in terms of draft regulations, that would be of great assistance.
Some of the other regulations certainly seem to be quite sensible. For example, in amendment No 2, which amends clause 5, the government has changed it so that, instead of reading that “the purpose of this act is to protect and encourage public participation”, “encouraging public participation” has been taken out. I think that would take it much too far. The act should not actually encourage people to get out there and publicly participate in all manner of things.
I mentioned during the in-principle stage that, for the last 25 years or so, we have had a developing body of case law in terms of third parties. Thirty years ago, third parties could not appeal or get involved in anything, and over the years they have been able to do so. That is well and good, but you can go to ridiculous extremes. We have seen that with some of our planning laws in the territory.
To willy-nilly encourage public participation I think goes far beyond the scope of what this legislation should be doing. So that is a sensible amendment by the
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