Skip to content Skip to main navigation

News

Skilled legal advice with
accessible & personal attention

Shane opens the door to challenging Ministerial decisions in the courts

By johnboy 19 February 2013 49

Just thinking about what Shane Rattenbury is trying to do here fills my soul with dread:

ACT Greens member for Molonglo, Shane Rattenbury, is seeking public comment on an exposure draft of the Administrative Decisions (Judicial Review) Amendment Bill which was presented to the ACT Legislative Assembly.

“The Bill is about legislating for greater accountability and ensuring Ministers and public officials are always held responsible for their decisions,” Mr Rattenbury said.

“Currently the ability to bring an action for judicial review is limited to ‘persons aggrieved’ by a decision. This Bill will introduce open standing and make all decisions subject to the ADJR Act open to judicial review by anyone, except where it would unreasonably infringe on a person’s private rights to deal with the matter, as recommended by the Australian Law Reform Commission.

“All interested parties, including those with a special interest in judicial review, are encouraged to review the consultation paper and exposure draft and make a submission by Friday 29 March 2013.

Making it easier for nutters to drag things out, via judicial review no less, has the potential to be far worse than any decisions our Ministers could make.


What’s Your opinion?


Please login to post your comments, or connect with
49 Responses to
Shane opens the door to challenging Ministerial decisions in the courts
Filter
Showing only Website comments
Order
Newest to Oldest
Oldest to Newst
Lookout Smithers 4:30 pm 23 Feb 13

bundah said :

Now now Smithers must we remind you of this:

http://www.canberratimes.com.au/opinion/torpid-drowsy-act-courts-are-still-a-legal-joke-20121221-2brms.html

In particular the extraordinary comments of High Court Justice Dyson Heyden

“A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”

Bundeeee, remind me fairfax newspapers? I know and have known for about 20 years to get facts at the best source. Doodle, you just linked a canberra times article at me? Just link me to something entertaining next time. Joker.

bundah 7:40 pm 22 Feb 13

Now now Smithers must we remind you of this:

http://www.canberratimes.com.au/opinion/torpid-drowsy-act-courts-are-still-a-legal-joke-20121221-2brms.html

In particular the extraordinary comments of High Court Justice Dyson Heyden

“A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”

Lookout Smithers 7:19 pm 22 Feb 13

breda said :

@ lookout smithers:

“Because the law was created by the people, for the people. All people. Stake or not is of no consequence. Im not sure what you are getting at with the bribes comment. The courts have no involvement in political process anyway, and we can all thank the skye above for it in my view. Vexatious cases are invariably spotted and dealt with accordingly and I don’t think that there are many out to paralyse, if thats possible, the workings. It completely contradicts having the option to in the first place? The courts work incredibly effectively given what they are tasked with. ”
——————————————————
Well, I feel like a mosquito in a nudist camp, to quote an old joke. Where to begin?

Firstly, you are utterly gormless if you do not know that there is a massive power struggle going on between elected representatives (the legislature) and lawyers ( the judiciary) all over the Western world. The original model was that the role of the courts was to impartially interpret the intentions of the legislature, if there was a doubt. Nowadays, thanks to ever-increasing legislation and legal precedents, and those handy UN conventions, courts in Western democracies have found handholds for just about any conclusion they choose.

Secondly, this issue is not about the law per se. It is about decisions flowing from particular laws, which inevitably only affect a limited number of parties. If ACTPLA approves an extension on my house, why should someone from WA have a right to appeal it? Or even someone from the ACT who lives many kilometers from me?

It is just busybodying control-freakery. You get that, but it certainly shouldn’t be sanctified by law and implemented at public expense.

The last part of your rant would take pages to deal with, but I especially enjoyed the bit about how efficiently the courts deal with things.

Tell us about the people who are still waiting for Refshauge J’s judgement four years later.

Now, imagine that multiplied by every nutter or interest group who disagrees with a decision.

You clearly don’t comprehend the distinMy cation between an administrative decision made under law, and a political decision, either. Go and study Admin Law for a year or two, and then come back and try to explain your incoherent comment.

My oh my we are an angry malcontent aren’t we. You have just spat out some psycho babble and all I could picture while reading your post was Mel Gibson in conspiracy theory. Im do ok with understanding the legal texts. I could tell you about people waiting for judgements couldn’t be in a luckier system. If its a couple of years longer they should still consider it a privilege. I don’t know why you want to throw insults around , you seem to be somewhat astute and articulate. But you just come off as unhappy and defeated trying to belittle everyone. If an extension on your home yields this kind of reaction from you then I would hate to see you with a real problem. You live in a city with probably the finest example of democracy working. You have no real problems, its taken care of for you. The real only problem in the ACT Supreme Court is the layout of the building itself and maybe a water bottle shortage. A plant or two?

Matt_Watts 3:16 pm 22 Feb 13

davo101 said :

breda said :

The original model was that the role of the courts was to impartially interpret the intentions of the legislature, if there was a doubt.

WTF? Seriously, google “common law” and have a bit of a read.

breda said :

Now, imagine that multiplied by every nutter or interest group who disagrees with a decision.

You can’t apply for a review just because you disagree you have to actually come up with grounds as to why it should be reviewed.

Matt_Watts said :

Surely there are similarities in that the populace either elects officials to govern or they don’t.

Don’t know about you, but I’ve never been asked to vote for the bureaucrats that administer the laws created by the members of the Assembly I did get a chance to vote for.

Matt_Watts said :

this proposal will fundamentally change the way business is conducted in the ACT.

So what are you saying about the current state of administration in the Territory?

1. Ministerial responsibility for actions within a department (yeah, yeah, I’m old fashioned)
2. There should be some level of certainty. As imperfect as we have it in the ACT, third parties challenging administrative decisions would surely reduce certainty. I’m figuring this would impact on investment.

davo101 2:22 pm 22 Feb 13

breda said :

The original model was that the role of the courts was to impartially interpret the intentions of the legislature, if there was a doubt.

WTF? Seriously, google “common law” and have a bit of a read.

breda said :

Now, imagine that multiplied by every nutter or interest group who disagrees with a decision.

You can’t apply for a review just because you disagree you have to actually come up with grounds as to why it should be reviewed.

Matt_Watts said :

Surely there are similarities in that the populace either elects officials to govern or they don’t.

Don’t know about you, but I’ve never been asked to vote for the bureaucrats that administer the laws created by the members of the Assembly I did get a chance to vote for.

Matt_Watts said :

this proposal will fundamentally change the way business is conducted in the ACT.

So what are you saying about the current state of administration in the Territory?

Matt_Watts 1:38 pm 22 Feb 13

davo101 said :

Matt_Watts said :

davo101 said :

breda said :

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Why not? What you are basically arguing is that bad administrative decisions should just be ignored.

That’s more or less the same argument in favour of citizen-initiated referenda, isn’t it…?

No. In this case you can only proceed on the basis that there are certain grounds to object to an administrative decision. Citizen-initiated referenda is a system designed to force harebrained populist policies onto the Government that will eventually lead to bankruptcy aka California.

Surely there are similarities in that the populace either elects officals to govern or they don’t. Obviously there’s a difference – they are different processes – although I stand by the view that the argument in favour of citizen-initiated referenda aligns with the argument in favour of Shane’s proposal.

“If it’s a bad outcome, we should have the right to challenge it now.”

Individuals’ rights to appeal decisions made against them aside, which has always and should continue to exist in the ACT, this proposal will fundamentally change the way business is conducted in the ACT.

Also, I’m against citizen-initiated referenda for the reasons you mentioned.

breda 1:31 pm 22 Feb 13

@ lookout smithers:

“Because the law was created by the people, for the people. All people. Stake or not is of no consequence. Im not sure what you are getting at with the bribes comment. The courts have no involvement in political process anyway, and we can all thank the skye above for it in my view. Vexatious cases are invariably spotted and dealt with accordingly and I don’t think that there are many out to paralyse, if thats possible, the workings. It completely contradicts having the option to in the first place? The courts work incredibly effectively given what they are tasked with. ”
——————————————————
Well, I feel like a mosquito in a nudist camp, to quote an old joke. Where to begin?

Firstly, you are utterly gormless if you do not know that there is a massive power struggle going on between elected representatives (the legislature) and lawyers ( the judiciary) all over the Western world. The original model was that the role of the courts was to impartially interpret the intentions of the legislature, if there was a doubt. Nowadays, thanks to ever-increasing legislation and legal precedents, and those handy UN conventions, courts in Western democracies have found handholds for just about any conclusion they choose.

Secondly, this issue is not about the law per se. It is about decisions flowing from particular laws, which inevitably only affect a limited number of parties. If ACTPLA approves an extension on my house, why should someone from WA have a right to appeal it? Or even someone from the ACT who lives many kilometers from me?

It is just busybodying control-freakery. You get that, but it certainly shouldn’t be sanctified by law and implemented at public expense.

The last part of your rant would take pages to deal with, but I especially enjoyed the bit about how efficiently the courts deal with things.

Tell us about the people who are still waiting for Refshauge J’s judgement four years later.

Now, imagine that multiplied by every nutter or interest group who disagrees with a decision.

You clearly don’t comprehend the distinction between an administrative decision made under law, and a political decision, either. Go and study Admin Law for a year or two, and then come back and try to explain your incoherent comment.

PantsMan 1:10 pm 22 Feb 13

davo101 said :

Citizen-initiated referenda is a system designed to force harebrained populist policies onto the Government that will eventually lead to bankruptcy aka California.

That sounds like something the Greens will support.

davo101 11:39 am 22 Feb 13

Matt_Watts said :

davo101 said :

breda said :

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Why not? What you are basically arguing is that bad administrative decisions should just be ignored.

That’s more or less the same argument in favour of citizen-initiated referenda, isn’t it…?

No. In this case you can only proceed on the basis that there are certain grounds to object to an administrative decision. Citizen-initiated referenda is a system designed to force harebrained populist policies onto the Government that will eventually lead to bankruptcy aka California.

Matt_Watts 10:18 am 22 Feb 13

Gungahlin Al said :

Matt_Watts said :

davo101 said :

breda said :

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Why not? What you are basically arguing is that bad administrative decisions should just be ignored.

That’s more or less the same argument in favour of citizen-initiated referenda, isn’t it…?

Look – squirrel!

Ah – I see you are referencing Shane’s behaviour as Minister!

PantsMan 9:49 am 22 Feb 13

Oh yeh, Shane, could we also have “recall” elections too?

Gungahlin Al 9:40 am 22 Feb 13

Matt_Watts said :

davo101 said :

breda said :

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Why not? What you are basically arguing is that bad administrative decisions should just be ignored.

That’s more or less the same argument in favour of citizen-initiated referenda, isn’t it…?

Look – squirrel!

PantsMan 9:32 am 22 Feb 13

The key decision on standing in admin law is Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493: http://www.austlii.edu.au/au/cases/cth/HCA/1980/53.html
It was held ACF did not have standing in that case.

Clearly Shane is using his newfound power to extort out of us things for him to pursue his extremist agenda with.

However, I really do think some of our processes are pretty crap. Our stupid Human Rights Act 2004 does nothing more than ensure a taxpayer funded industry for flaky human rights lawyers and academics to sponge off, yet grants no actual human rights to Canberrans.

If you want to do something about standing, Shane, maybe alter the Human Rights Act to allow anyone to contest any ACT Government action (administrative or legislative) that breaches their human rights, including those human rights that you don’t like talking about often such as the right to property and the right to free speech? The Human Rights Act as it stands now basically says:

Here are your human rights. You have them until the ACT Government decides they are inconvenient and that they should be arbitrarily overridden for the sake of expediency. However, we will pay a stupid Human Rights Commissioner $300k to write a report on how we’ve screwed you over.

Matt_Watts 9:21 am 22 Feb 13

davo101 said :

breda said :

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Why not? What you are basically arguing is that bad administrative decisions should just be ignored.

That’s more or less the same argument in favour of citizen-initiated referenda, isn’t it…?

davo101 8:53 am 22 Feb 13

breda said :

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Why not? What you are basically arguing is that bad administrative decisions should just be ignored.

Lookout Smithers 1:58 am 22 Feb 13

I agree,

breda said :

Shane Rattenbury’s responses are pathetic.

Suggesting the what he proposes would have stopped corruption in NSW is not only naive, it is wrong. Corrupt decisions can be perfectly legal in administrative terms, depending on the framing of the legislation. Taking bribes is a criminal offence, not a civil breach.

Citing the Law Reform Commission’s suggestion that lawyers and courts should have greater involvement in the political process as some sort of independent view is either childishly naive, box-of-rocks dumb or cloaking another agenda. Do you think a bunch of lawyers are going to argue for a decreased role for themselves?

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Because the law was created by the people, for the people. All people. Stake or not is of no consequence. Im not sure what you are getting at with the bribes comment. The courts have no involvement in political process anyway, and we can all thank the skye above for it in my view. Vexatious cases are invariably spotted and dealt with accordingly and I don’t think that there are many out to paralyse, if thats possible, the workings. It completely contradicts having the option to in the first place? The courts work incredibly effectively given what they are tasked with.

Its pathetic in your opinion, but its a bit harsh given he took the time to make a comment on a blog site. Its perfectly ok to have a difference of opinion without needing insults first.

caf 10:25 pm 21 Feb 13

breda said :

Shane Rattenbury’s responses are pathetic….

I think it’s pretty bloody rude to talk past Shane like that when he’s participating in this thread.

HiddenDragon 10:04 pm 21 Feb 13

breda said :

Shane Rattenbury’s responses are pathetic.

Suggesting the what he proposes would have stopped corruption in NSW is not only naive, it is wrong. Corrupt decisions can be perfectly legal in administrative terms, depending on the framing of the legislation. Taking bribes is a criminal offence, not a civil breach.

Citing the Law Reform Commission’s suggestion that lawyers and courts should have greater involvement in the political process as some sort of independent view is either childishly naive, box-of-rocks dumb or cloaking another agenda. Do you think a bunch of lawyers are going to argue for a decreased role for themselves?

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

Minister Rattenbury’s reference to the goings on in NSW may be more of an argument for an ICAC role for the ACT – possibly shared with NSW, if they’d have us. Were we to have such an outfit operating here, I can’t help but feel it could, in time, be mightily entertaining and enlightening, and would surely do far, far more for lifting standards of accountability etc. in public administration than an occasional court case, or the threat of such.

breda 7:30 pm 21 Feb 13

Shane Rattenbury’s responses are pathetic.

Suggesting the what he proposes would have stopped corruption in NSW is not only naive, it is wrong. Corrupt decisions can be perfectly legal in administrative terms, depending on the framing of the legislation. Taking bribes is a criminal offence, not a civil breach.

Citing the Law Reform Commission’s suggestion that lawyers and courts should have greater involvement in the political process as some sort of independent view is either childishly naive, box-of-rocks dumb or cloaking another agenda. Do you think a bunch of lawyers are going to argue for a decreased role for themselves?

You still have not addressed the central issue – why somebody with no stake in an issue should be able to paralyse the workings of a democratic society because they have the ability to take it to court?

housebound 6:57 pm 21 Feb 13

ShaneR said :

Thought I would jump in on this one and make my first Riot Act post.

I am in no way advocating the ACT ‘opens the floodgates’ on litigation and that won’t happen when the Bill is passed. The floodgates argument is one that’s been long debated around judicial review. It’s also one that’s been discredited by law reform commissions across the country, and it hasn’t happened in jurisdictions with similar legislation in place. The Court Procedures Rules deal with vexatious litigation and will continue to weed out unnecessary cases.

Protecting the rule of law and making decision makers accountable is a good thing. Just think – if some ‘nutter’ could have challenged decisions around giving mining leases to Eddie Obied, what might have happened at the time rather than all these years later?

Shane Rattenbury

Admit it – you are not changing much. ADJR is already open to challenge ministerial decisions.

Tell us – how many ADJR appeals against the ACT Government have actually been able to get to court in the past fifteen years or so?

Opening ADJR to third parties won’t change the way the ACT Government conducts itself, as it takes model litigant guidelines as something to be laughed at rather than followed. How many appeals have been squashed by the high security fees? There’s at least three and possibly five I am aware of. Other probably know of more. It is a well-known tactic in legal circles – raise the money stakes until one side gives up.

You have formed a majority government with Labor, so there is no way of reviewing decisions in the Assembly. AJDR is all that is left.

CBR Tweets

Sign up to our newsletter

Top
Copyright © 2019 Region Group Pty Ltd. All rights reserved.
the-riotact.com | aboutregional.com.au | b2bmagazine.com.au | thisiscanberra.com

Search across the site