Page 2115 - Week 07 - Thursday, 16 May 2013
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second-last weekend in October each four years. But there are equally important accountability mechanisms that fill a space that the Assembly and elections simply cannot cover—these are freedom of information laws, integrity agencies and judicial review. Each of these plays a vital role in ensuring that the government exercises the power given to it on trust by the people it represents in a responsible and lawful way. Each of these will be the subject of reforming legislation presented by the Greens during the term of this Assembly.
Today I present the Administrative Decisions (Judicial Review) Amendment Bill 2013. This is the first of the three governance and integrity reforms that the Greens committed to deliver in the lead-up to the election. They are committed to in the parliamentary agreement for the Eighth Assembly. The bill I am presenting today has been refined from the exposure draft that I tabled in this place earlier in the year. Overall, submissions received were positive and provided very useful feedback that has been incorporated into this bill. The underlying intention of the bill is to improve the quality of administrative decision and ensure that government decisions are not above the law. The change will protect the public interest in all manner of areas, be that environmental, planning, economic or social outcomes such as the protection of vulnerable groups in the community such as children or people with a disability. It will remove the need to plaintiff shop to find particular individuals willing to take the risk and put themselves through the personal effort of litigation to protect important public interests. The classic enunciation of the principle is the often quoted statement by Lord Diplock when he said:
It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.
Integrity agencies and freedom of information laws help to ensure that the public are aware of what the government is doing and how it is exercising its responsibilities. Judicial review ensures that it acts according to the laws passed by this place.
Since the US case Marbury v Madison, US courts have had the role of supervising the excesses of the executive. In the UK, courts of equity have had a historical interest in the remedying of public wrongs. In Australia we are very fortunate to have drawn from these doctrines in our constitutionally entrenched system of judicial review by an independent judiciary. We can be confident that should any given decision made by a member of the executive come before a court it will be the subject of a thorough, unbiased and open analysis.
The principle behind this is commonly known as the rule of law. No-one is above the law and everything is subject to the law. However, our existing legislation that governs judicial review does not give full effect to this most well-accepted principle. As observed in the legal text, Douglas and Jones’s Administrative Law, when it comes to the issue of standing, “lawfulness is not a good which trumps all others”.
Public accountability for decisions should not be subservient to political expediency and it should not be the case that we have a law that can work against the enforcement
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