Green’s Minister Shane Rattenbury has introduced the Administrative Decisions (Judicial Review) Amendment Bill 2013 (“Bill”) into the ACT Legislative Assembly.

The proposed change 

The Bill primarily seeks to eliminate the requirement that only a “person aggrieved” by a government decision (including a DA approval or call in) can seek review of that decision by a Court. In doing so, the Bill seeks to broaden the number and categories of persons able to seek judicial review of an approval or other government decision. The Bill also authorises the Court to allow interveners (almost anyone it appears) to join in the proceedings.

The current position

The Administrative Decisions (Judicial Review) Act 1989 (“ADJR Act”) like similar laws in other jurisdictions allows a “person aggrieved” by a decision under an enactment by the ACT government to seek review of that decision by the ACT Supreme Court.

While the ADJR Act does not allow the Court to decide whether the decision is the preferable one (ie “merits review” undertaken by the ACT Civil and Administrative Tribunal), it does allow a Court to review the decision making process and make a finding whether or not the decision was properly made according to the law.

It has long been accepted in Australian law that only particular people (ie those directly affected) should be able to seek review of government decisions. In the ACT, there is a body of law about who will be a “person aggrieved” for the purposes of the ADJR Act (ie “standing”). The current position in the ACT, which generally reflects the position in all Australian jurisdictions, is that a person must have a special interest in the subject matter of a decision to have standing to commence proceedings seeking review of that decision by a Court.

The approach of having “restricted standing” has long been justified as necessary to prevent “busybodies” and “troublemakers” from challenging proceedings which they have no direct interest in and in restraining the role of the Courts to adjudicating disputes between parties, and not determining issues of public policy which are commonly thought to be best dealt with by the elected legislature.

Summary of the Bill

The Bill removes the concepts of a “person aggrieved” and permits any “eligible person” to make an application for review, subject to two limitations. An “eligible person” is essentially anyone.

A person will not have standing for review, however if:

  1. the law to which the subject matter of the application relates states that the subject matter may not be challenged by that person; or
  2. the decision is about an individual and the review may prejudicially affect that individual, and the interests of the person seeking review are not adversely affected by the decision and the review does not raise a significant issue of public importance.

The Bill seeks to reverse the ordinary onus of proof and deems everyone to have standing to seek review of a government decision, unless one of the express (narrow) exceptions is satisfied.

The Bill also gives the ACT Supreme Court a disturbingly new discretion to grant leave to any person to intervene in proceedings under the ADJR Act and sets out three criteria that the Court must have regard to when making this decision. This is affectively a back door entry for third parties to join in the review if for some reason they are assessed as not being an “eligible person”.

Impact of the Bill

In promoting a recommendation of the Australian Law Reform Commission Minister Rattenbury is seeking to open up third party review of decisions permitting anyone who thinks a decision to be unlawful to have their day in court.

If passed the Bill has the serious potential to delay the implementation of Government decisions and planning approvals. For example, the Giralang shops DA approval has presently been delayed by several years in the Courts (not including time in the ACAT).

In particular this development removes the current restrictions on commercial rivals bringing Court proceedings to thwart or delay government decisions favouring a rival. In the ACT this type of behaviour has commonly been seen in challenges of planning approvals.

Other possible implications of the Bill include increased uncertainty regarding government decisions, increased congestion in the ACT Supreme Court and issues about encouraging the ACT government to legislate to prevent review of their own decisions by the Courts (including potentially decreasing the number of persons with a special interest able to seek review of government decisions).