Page 3468 - Week 11 - Thursday, 19 September 2013
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There has been a tendency to think of the ACT court system as a free resource, but it is not. Nor, though, is it a strict user-pays system. We could not have access to justice if everyone who needed to take action paid the full price for that. The government proposes a lowering of the threshold for being excluded from being eligible to apply for review, meaning fewer people can apply for review. Specifically, a person may not make an application if an enactment does not allow the person to make an application, or the interests of the person are not adversely affected by the decision and the application fails to raise a significant issue of public importance.
Without this amendment, the broader provisions in the bill would allow government decisions to be subverted by requesting reasons for interim stage decisions. This would have the potential to impose an unnecessary burden on government and the consequent cost to the community in a time of limited public resources. The narrowing of the ability of third parties to apply for judicial review limits the right of strangers to apply for reasons for the decisions and consequently limits the potential impact on the government.
The test applies to both standing to apply for review and applications for reasons for decisions. It is only a minor limitation compared to the proposal currently in the bill, and still provides for intervention on public interest grounds. It will also be simpler for the courts to apply than the current four-part test in the bill.
The government will monitor this legislation as it is implemented to respond in case there are abuses of the system, particularly AD(JR) applications being used to interfere in private decisions that affect individuals. In that case the government may consider adding to schedule 1 of the act to ensure that individuals do not have the certainty of administrative decisions in relation to them being unreasonably threatened.
The third amendment proposed by the government is another reasonable measure to help prevent abuse of the system. The government proposes to move amendments to ensure that organisations exist prior to an administrative decision being made in order to have standing for review of the decision. In the bill currently there is no such restriction. The government amendment proposes to restrict the dictionary definition of “eligible person” to include a requirement that an organisation be in existence prior to an administrative decision being made in order to have standing.
This approach is consistent with provisions in the ACT Civil and Administrative Tribunal Act, and has operated successfully to date. The amendment would lessen the prospect of corporations and associations being established solely to fight particular decisions. The recommended government amendments will decrease the impact from delays where a person with no interest in a decision seeks review of an administrative decision. The proposed amendments will also retain the existing criteria in relation to the standing test for applications for review, but rework them.
The approach proposed by the government amendments is a responsible one. It is balanced and supportive of the intention of the bill, which is to ensure that decision makers are accountable and make decisions in accordance with the law. The government will support the bill, subject to the proposed amendments being adopted.
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