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Tasmanian Civil and Administrative Tribunal Amendment Bill 2021

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 14 October 2021

Tags: Justice, Legislation

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, I add the support of the Greens to this TasCAT Amendment Bill to say how pleased we are with the processes that have been in train for years now and the location of the tribunals into one beautiful premises. I expect people who work there every day, and I hope the people who bring cases before those tribunals, feel comfortable in the space because it is designed to have intimate spaces as well as accommodating the movement of presumably reasonable numbers of people at different times.

It is certainly a fresh, modern building. It is not too imposing, it is human-scale. It is all the sorts of things which are best-practice in buildings and designed appropriately for justice. We want things to be as people-scale as possible. I grew up in Canberra and the High Court is a hugely dominant non-human-scale building and maybe that is appropriate for the highest court in the land but it is certainly not appropriate for people who are trying to sort out -

Ms Archer - It is very grey isn't on the outside?

Dr WOODRUFF - Seriously Brutalist modern architecture. I am glad we did not go down that line. It is a line that governments like to have or to perpetuate that continued stamp of dominance. I think we all agree that we get better outcomes when people are as involved as possible and able to talk as comfortably as possible about some really personal and hard situations that people find themselves in, as well as the highly combustible and controversial appeals that are taken before some bodies like the Resource Management Planning Appeal Tribunal.

We also agree with the process now of amalgamating the powers of the separate tribunals and establishing a combined set of administrative procedures and there is no doubt that this is a manifestly good thing for Tasmania. Not only will it improve access to justice, which is the objective within the TasCAT Act, but it will expedite the hearings, make them more fluid, make the processes more streamlined, and thereby result in cost-efficiencies for the Government and importantly for the parties involved. That is obviously critical. If everything goes according to plan, it seems like that is a good plan.

Now we are talking about the powers within this bill. I want to make some points and I am sure the minister will not be pleased to hear this but we are really concerned at the short timeframes that were available for stakeholders to provide their views on this Amendment Bill because it was noted amongst a number of the community groups which put submissions in how incredibly short that timeframe was. We have to remember that planning legislation is incredibly complex.

In my experience in this place with the portfolios that I have, it is hands down the most complex area of law. I put it to you to find a more complex one. It is all over the place - I do not mean that in a pejorative way, there are a lot of different bills that relate to each other on any single matter - and for people in the community to be able to look at how their rights are being enshrined or conversely in their view sold away, means they need time. They need to be able to have conversations with other people, with experts, planning experts, legal experts. This covers all the areas of mental health, guardianship, planning law. There are so many different issues that often all come together and intersect in a confusing vast array of different bodies of legislation. The timeframe for this was, no doubt, in many people's minds far too short. More importantly, it was the fact that this bill, the draft exposure bill, was sent out without a plain English discussion paper or background paper being produced by the Department of Justice. If the minister can let people know why that was the case?

This is such an important bill. It is an unfortunate stain on the quality of what we are establishing here to have not taken the time and put the resources into a plain English explanation for this very long, one of two very long complex bills. This one is 200 pages and the other one is the same sort of length - 400 pages of legislation about changes to the powers and the administrative processes of these tribunals. How they come together, how they intersect, what is left out, what is not and what has been added, it is critical to have plain English understanding of that.

I do not know why it would be. There must have been a deliberate decision made by the department not to provide explanatory documents with the draft exposure bill. I would like an explanation on behalf of people in the community who put everything they could into understanding this bill. I would ask the minister to respect that concern, to note it and to make a commitment not to do that again. It is a basic that is required for such a big change. This is not just a miscellaneous, this is a huge change. Each of those tribunals deals with matters sometimes of life and death, definitely of serious matters of natural justice, as well as profound decisions that have an impact on our natural environment and on the lived environment of people in communities all around Tasmania.

There is increasing development in Tasmania. Mr Jaensch, who is the minister for climate, was talking yesterday that population growth is the justification for why we might find it hard to reach our net zero target by 2030. It is going to be hard enough to get there because there are going to be more people in Tasmania. We know more people in Tasmania means more houses, it means more developments, it means more either in fill or expansion - expansion into bushland and natural areas, or expansion into potentially fertile agricultural land, or expansion -

Mr Jaensch - Or good planning.

Dr WOODRUFF - Yes, sure, good planning possibly. But we have to have robust appeals mechanisms.

Mr Jaensch - Yes, good planning.

Dr WOODRUFF - Thanks, minister, for chiming in. It would be great if you looked at some of the things in the Greens policies that the community have been asking for for years about how to improve the appeals tribunal. What we really need is an appeals tribunal like Queensland, which adopts an informal process and delivers decisions in plain English, and prohibits legal representation, except in exceptional circumstances, or whether both parties waive the right to that being the case.

What we have in Tasmania at the moment is a situation where, on numerous occasions, community groups would like to take an appeal to a development decision they believe has been badly made, is bad law, is a bad decision by council, an unlawful decision by council, and/or it demonstrably tramples on the biodiversity, the local amenity, or the safety of the community with transport. There are many reasons why community groups have valid reasons to challenge a development application decision, not frivolous, not vexatious valid reasons - but they are stopped because of the costs.

We have to make a decision as a society. We have continued to make the decision that favours bigger developers, big companies or big developers of enormous subdivisions, who have an extensive amount of resources, proportionately, to put into running an appeal on a project, compared to a couple of neighbours who have got together. They know that the development flouts the characteristics and liveability of the neighbourhood. They have no chance, they are on a hiding to nothing to try and bring an appeal in that situation.

The starting place for an appeal is around $30 000. I keep hearing back from community groups. That is what they are told from planners and I suspect I am probably out of date. That is probably edging closer to $40 000 or $50 000 just to get out of the blocks, to make a reasonable appeal.

That is the sort of money community groups are looking at raising or mustering for an appeal on a cable car. There is no doubt that if a developer brings an appeal on that, the community will weigh in, along with the council, and defend that decision. That comes with a financial cost and it has to be borne by communities who are standing up for good decisions.

We do not agree that the Planning minister has done everything he can. There is definitely an opportunity to move towards a less adversarial appeals process. There are models not based on the highly adversarial, highly legalistic approach we have in RMPAT at the moment. We can have more focus on mediation and more guidelines about how mediation is required to be entered into, in a non-legalistic framework, at least in the first instances, to try and broker a settlement or an agreement before an appeals process is commenced in formality. I suggest the minister has a look at the Queensland style tribunal.

The other changes happening, as well as population, is biodiversity loss and climate change. Given both of those things, intersecting with increasing population and the obvious need for people to have houses to live in, we have many issues coming together. There will be an increasing requirement to have an appeals process through the Resource Management and Planning Appeal Tribunal that is fair to appellants, and is independent and evidence-based in the adjudications made on environment and planning matters.

We stand by the comments the Environmental Defenders Office made in their excellent submission. They raised the costs of litigation as being one of the primary barriers to accessing justice for their clients. As I have said, they have seen the costs of taking cases such as the costs of engaging experts, in particular. It used to be just three or four but there are often now a huge raft of experts that must be assembled in order to take one of these appeals.

Even though there is the usual rule that each party is to bear their own costs, many potential litigants are deterred from exercising, or simply not able to exercise their legal rights in relation to proposed developments and other resource matters. As developers, in particular, lawyer up and get more experts, the only option for community appellants is to also lawyer up in equal measure. It is an increasing ratcheting up of costs for an appeal.

The second point I wanted to make is about the time frame for looking at this bill itself. It was tabled on Tuesday, I was offered a briefing - thank you to the staff who offered me a briefing. I was not able to accept that briefing. I did not have any time to do that yesterday. I was in the House.

I have read what I can through the submissions and it seems to me on the face of it that many, if not most of the recommendations that have been put a number of the submitters have been adopted. I thank the Attorney-General and her staff for listening to that and for making those changes in this document. However, as I said, I have just seen this on the face of what I have been able to look at in a very short amount of time and I will flag that I am going to request that we go into committee so that I can be confident that my understanding of how these things have been adopted is the way it has occurred.

I want to ask the Attorney-General a question about schedule 2 and whether the Attorney-General can confirm that schedule 2 can only be amended by way of an amendment bill. Is that the case? That would provide some comfort for people who have asked a question about that, about how schedule 2 can be amended.

I have a number of more specific questions about the bill. I will leave it there at this point and ask the more detailed questions that I have in the Committee stage of the bill.