Page 1088 - Week 03 - Thursday, 18 March 2010
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there is significant policy reasoning behind these amendments. At the heart of the amendments the government is making a policy differentiation between planning decisions and all other reviewable decisions heard by ACAT.
Currently, all matters get two review hearings at ACAT. The amendments will reduce planning decisions to one review. All other remaining decisions will get their two review opportunities. After planning matters have had their one review, the appeal will lie to the Supreme Court and then on a matter of law.
The policy question left unanswered by the government is why their stated need for greater certainty should not be applied to other reviewable decisions. There is clearly some policy rationale or assumption in the government’s thinking. It is not absolutely clear, however, what that rationale is. Had the amendments been brought forward on their own, the government would have been required to disclose their detailed policy thinking. From that point proper consultation could have been achieved.
One argument used by the government has been that the amendments will return the review process to the status quo prior to February 2009 when ACAT commenced. The unanswered question is why all the other reviewable decisions do not deserve to be returned to the status quo as well.
A second and closely related concern for the Greens is that, because these ACAT amendments have not been fully explained or justified, they are in part underdeveloped. In attempting to give greater certainty to builders and developers, the Greens are concerned that the government has proposed untested provisions. In some of the instances, these untested provisions actually have the potential to increase uncertainty and time delays for all involved in ACAT, including developers.
For the record, I will give just one specific example of where the Greens have concerns. The example is the amendment to remove the ability to ask for clarification of an ACAT order. Currently, a party to a review can ask for ACAT to amend an order to clarify it. Such amendments do not alter the effect of the order; rather, they fix minor errors or inconsistencies that exist in it. The stated reason for the removal of that right for planning matters is to enable ACAT to meet its 120-day turnaround time frame and to add certainty for all involved.
However, the Greens have followed through on the detail and are unsure of how an order will be clarified in the future if that is legitimately necessary. The question is this: will the party requiring the clarification be required to apply to the Supreme Court? If this were the case, this would run completely against the stated objective of reducing costs and time. My office asked for the advice of the government and put the following question in writing:
If an order would need correction, how would this be achieved after the amendment? And would that new process add extra time to the matter?
The government advice, given in writing, and I quote it in full, was:
The Government is concerned about the possible misuse of these provisions in planning matters to add cost and delay to the completion of ACAT proceedings.
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