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JUDICIAL REVIEW BILL 1999 (No. 69)

Second Reading

Mr PATMORE (Bass - Minister for Justice and Industrial Relations - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

Mrs Swan - You don't have anything else you can do?

Mr PATMORE - I did have, by way of interjection - yes, I have been looking for an 'out' as well. I looked at the question of loitering and there may be some amendments to that - a point has been raised by the Chief Magistrate, a very good point, that we may need an amendment on.

Mr Groom - Are you going to read the second reading speech, Peter?

Mr PATMORE - No, the bill is to be dealt with and then we are adjourning.

Mr GROOM - Point of order. I appreciate the spirit in which the Attorney-General is raising the matter but it was not on our list - this is a helpful list because we then know what we are doing for the day and there is often contact between the Government and the Opposition explaining what was proposed for the day. My colleague does not have her papers here and suddenly the Attorney wishes to -

Mr Patmore - I am happy to wait, it is not going to matter. I am happy to wait while you get it, I do not feel a need to talk while we are waiting. I am not going to push anything through and I am happy to wait for the second reading until you get your notes. I am not fussed. It is not my intention to bulldoze anything through.

Mrs Swan - I thought you might just put your second reading -

Mr Patmore - That is what I was hoping to do but apparently no.

Mr DEPUTY SPEAKER - On the point of order. I think it is up to the members to liaise and sort out the issue. I do not think there is a point of order; you need to talk about it and work out what you are going to do.

Mr GROOM - It is difficult. The Attorney is not trying to bulldoze the thing through -

Mr Patmore - No, I'm not, not at all.

Mrs Swan - I appreciate that.

Mr GROOM - I think rather than just sitting here as a parliament with nothing happening -

Mr PATMORE - If I could speak on the point of order, could I suggest that we suspend for five minutes to allow the letter to be dealt with; it is a much better way than filibustering or filling in time.

Mr PATMORE (Bass - Minister for Justice and Industrial Relations) - Mr Deputy Speaker, the purpose of this bill is to establish a new and simplified system of judicial review of administrative decisions in place of the current common law system of prerogative writs, and to require administrative decision makers to give reasons for decisions. The bill also confers on a person whose interests have been adversely affected by an administrative decision, an entitlement to obtain a statement of reasons for the decision from the decision maker.

The bill provides that decisions of an administrative character proposed or required to be made under an enactment may be reviewed by the Supreme Court. The bill covers decisions which have been made, decisions in the process of being made, and where a person has a duty to make a decision but has failed to do so. Other administrative acts which can be challenged include the making of reports and recommendations required by legislation, and conduct engaged in for the purposes of making a decision.

A person aggrieved by an administrative decision to which the bill applies will be able to apply for an order of review to the Supreme Court. The grounds on which such an application can be made are essentially those existing in the common law. The Supreme Court on review will have an array of flexible remedial powers. A major - sorry, I was so excited by this, Mr Deputy Speaker, it has just been pointed out I have been reading the facts sheet rather than the second reading speech. If you will forgive me for my enthusiasm that has led me to this, perhaps for the sake of completeness, and seeing everyone is so interested, I will continue with the facts sheet and then do the second reading speech as well.

Mr Groom - We hadn't noticed.

Mr PATMORE - And no-one noticed, apart from my adviser. Thank you for your interest.

The Supreme Court on review will have an array of flexible remedial powers. A major innovation in the bill is the provision conferring on a person whose interests have been adversely affected by an administrative decision an entitlement to obtain a statement of reasons for the decision from the decision maker. At the present time there is no such general requirement under Tasmanian law.

That, Mr Deputy Speaker, was the precis, I will now move to the second reading speech.

The purpose of this bill is to establish a new and simplified system of judicial review of administrative decisions in place of the current common law system of prerogative writs and to require administrative decision makers to give reasons for decisions. Judicial review involves the supervision by the Supreme Court of administrative decision making.

The role of the court is to ensure that decisions comply with the law, so that the rights and interests of individuals are not subjected to unauthorised interference. This role may be distinguished from that of merits review, in that the court is limited to ascertaining whether the decision made was within the range of possible decisions allowed by the law, rather than seeking to reach the correct or preferable decision. In the event that a decision is found to be outside the range acceptable by law, the court can nullify the decision and order that it be remade according to law. Examples of decisions that involve errors of law include decisions made for an improper purpose, decisions made following the denial of procedural fairness, and decisions that are based upon a misinterpretation of legislation.

The administrative review jurisdiction of the Supreme Court is invoked by the common law remedies of prerogative writs, such as certiorari , mandamus and prohibition. There are also less common prerogative writs of quo warranto and scire facias . The use of these common law remedies is a complicated exercise with many procedural steps. It makes access to the courts impossible for some people, and unnecessarily difficult for others.

There has been extensive criticism of the procedural difficulties associated with the use of prerogative writs in the reports of various Law Reform Commissions and parliamentary and other committees which have examined the need for procedural reform in this area of the law in nearly all common law jurisdictions over the last 25 years or so. All other jurisdictions in Australia, with the exception of Western Australia, have moved to reform and simplify judicial review of administrative decision making.

The grounds on which the Supreme Court can review administrative decisions and the procedures which must be followed are complex and often confusing to lawyers as well as non-lawyers. The reasons for this complexity and confusion lie in the way in which the common law powers of judicial review have developed historically. The procedures and remedies have been developed by the common law on a case-by-case basis over centuries. In the process they have become encrusted with technicalities and fine distinctions which have been dictated more by the course of their historical development than by logic.

Much of the problem with judicial review arises because the common law powers of review have developed around particular procedures, and the remedies which result from those procedures rather than substantive grounds of deficiency in the administrative decisions sought to be reviewed. There are technical rules of law which are associated with the procedures by which the common law remedies must be sought, so that too often the difficulty which a person seeking review and his or her legal advisers face is not whether there is a substantial defect in the decision concerned which would justify review by the courts, but whether the situation can be brought within the scope of an existing procedure, and the remedy available as a result of that procedure.

With the emphasis on procedures and remedies, the substantive law has largely developed as an adjunct to the forms of relief. Another unfortunate consequence of this remedy-oriented approach, is that the merits of the case are sometimes overshadowed by issues of procedure. The technicalities and fine distinctions which relate to the grant of prerogative writs tend to put the focus of judicial review proceedings on the character of the remedy being sought, instead of on the substance of the grievance.

The bill overcomes these problems by abolishing the use of certain prerogative writs and providing for an order of review by the Supreme Court. A person aggrieved by an administrative decision will be able to make a simple application to the court for review. The grounds upon which such an application can be made are essentially the same as those already existing under the common law which relate to the illegality of a decision and not its merits.

The bill covers decisions which have been made, decisions in the process of being made, and where a person has a duty to make a decision but has failed to do so. Other administrative acts which can be challenged include the making of reports and recommendations required by legislation and conduct engaged in for the purposes of making a decision. The bill covers a wide range of administrative decisions. The equivalent provisions in the Commonwealth act have been interpreted widely and the legislative phrases describing the range of reviewable decisions lend themselves to a flexible interpretation. The advantages of this simplified procedure are as follows:

(a) it will allow the court in judicial review proceedings to focus on the substance of an applicant's grievance free of technical issues as to the availability of common law remedies;

(b) it will provide for an array of flexible, remedial powers; and

(c) by describing the most important grounds of review in summary form and reasonably comprehensive language, it will have an educational and presentational advantage for administrators and citizens as to the matters that would render an administrative decision contrary to law.

A major innovation in the bill is a provision conferring on a person whose interests have been adversely affected by an administrative decision an entitlement to obtain a statement of reasons for the decision from the decision maker. At the present time there is no such general requirement under Tasmanian law.

The provision of reasons for decision is consistent with community ideals of fair play and justice being seen to be done. It allows a person adversely affected by a decision to see what was taken into account and if an error was made. An individual who knows the reasons for a decision is better placed to make a decision whether or not to seek judicial review than a person who does not know the basis for the decision. The discipline of giving reasons makes administrators more careful and is likely to produce better thought out decisions, and will act as a check on arbitrary or inconsistent decisions.

This bill closely follows the Queensland Judicial Review Act 1991 which also closely follows the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth. This will mean that the extensive body of case law which has been developed since 1977 in relation to the interpretation of the Commonwealth act will be available to guide the courts, the legal profession and administrative decision-makers in this State in relation to the Tasmanian act.

Mr Speaker, this proposal will have the strong support of the public. The bill gives the public a simpler and more cost-efficient method of seeking review of administrative decisions. I commend the bill to the House.

Mrs SWAN (Lyons) - Mr Deputy Speaker, it would be nice to say that this is likely to be a succinct second reading and inspection of the bill, Mr Attorney. The bill is a long one and I know it has been on the listing for a while but nonetheless it is complicated.

Mr Patmore - It is.

Mrs SWAN - It would be pleasing for me to get up and give you a response as short as the facts sheet but I know that my former colleague, Mr Michael Hodgman, would be most aggrieved if I did anything of that nature.

Mr Patmore - I'll be sending the second reading speeches to him.

Mrs SWAN - I am sure he is outside there restless at the moment about what we are likely to say.

Mr Patmore - It's the end of the world.

Mrs SWAN - Quite clearly I am sure that my colleague would have been hopeful that, since the republican debate was put down, so to speak, the same might have been accorded to this move to remove prerogative writs from the Supreme Court and that common law procedure for remedy would have been allowed to stand.

Mr Patmore - It's a republican plot.

Mrs SWAN - I believe he would say that that was precisely the case and he would feel most ill at ease, I have no doubt.

Mr Groom - He's very upset about this proposition.

Mrs SWAN - And I have to say that we ought to perhaps express some sympathy, some reluctance, some feeling of sadness, if you like, with regard to the passing of what has been an extraordinarily important aspect to the law.

Mr Patmore - Yes.

Mrs SWAN - It has been something based in long history and I understand owes its genesis to the very construction of the king's household in Norman times through to the Tudor period where we saw the curia regis split off into the various courts of common pleas and King's Bench and the Court of Chancery. And the way it was constructed, as I understand it, had by almost mere accident the ability for the members of the king's household - the officials - to intervene and cross over to exercise the influence of the king in the development of that curia regis into the courts that then began to appear and have of course formed the basis of the construction of courts in the British system ever since.

There is an element of sadness and I do know whether or not it will be that some of these remedies will continue to be associated with quo warranto, with mandamus - probably not. As the Attorney indicates, it will simply become a merely technical ground that will provide us with access to review by the Supreme Court.

But I do understand that there is some sense in looking at a refinement of a system which argues intensely over matters of procedure rather than matters of substance. I know that there is a feeling in a good number of the members of the profession that there is some dissatisfaction with the operation of the partial codification of the prerogative writs under the Supreme Court Civil Procedure Act. There is a feeling I understand amongst a number of members or a substantial part of the profession that that matters should continue and there should be further codification.

This of course is doing the same thing. It is in fact codifying the common law and providing us with clear methods of entry so that remedies can be found rather than taking up inordinate amounts of time simply finding an access to the remedy that we wish to obtain which of course, if we cannot find the appropriate remedy and there is great debate about procedure, then -

Mr Patmore - I am sorry, forgive me, I just missed the first point. Which part are you referring to in that?

Mrs SWAN - As I understand it, there has been some partial codification of some of the remedies under Supreme Court civil procedure that has resulted likewise in a debate about matters of procedure and how this is to work. There is a feeling from some members of the profession I understand that it is necessary to go on to codify further the remedies so that we have clear lines of access to the remedies that can be available, so there is proper judicial review of administrative decisions and those who are coming forward to find those remedies are not caught up in an endless system of debating the procedure to be applied and whether or not the remedy they have in fact invoked is the appropriate remedy and we lose the matter of substance in the debate that occurs. Of course that can be horribly costly I imagine as well as time wasting and totally unsatisfactory for anyone who is seeking that sort of redress.

I have to say the aspect of actually having the reasons for an administrative decision presented is obviously immensely helpful. As the Attorney says, this is the first time this appears in the law in Tasmania and I am sure that people generally will be delighted with that aspect because with the rapid increase in the numbers of administrative decisions that are being made and the power that now is being accorded to that level of government - and we only have to look at recent legislation, for example, the Water Act where there is a whole line of administrative arrangements wherein people may in fact be delivered of what they believe to be poor justice and I have no doubt they will be delighted to be able to turn round and, first of all, obtain reasons for the decision that is made at that administrative level and then decide on that basis whether they should go on to seek some judicial review of it.

But I have to say that in all modern government I suppose there is a tendency, because of the complexity of the acts that are being administered, for a good deal of this decision making to devolve down to that level and people who are affected are affected every bit as badly as they would be by decisions made by courts. There can be a great deal of injustice in an administrative decision which can cause grave concern for members of the public. So as we look at the great build-up of that body of administrative decision making and the power that exists there it is important to find proper redress and this piece of legislation is aimed at doing precisely that.

I do welcome the ability to request the reason for these sorts of decisions and why and on what basis they are made because I am quite sure that this will cause an increase in the workload that will be undertaken by government because I have no doubt there will be people applying for reasons -

Mr Patmore - So they should, though.

Mrs SWAN - Indeed, that is the purpose of it and I have no doubt, as I say, that that will be incremental in the requirement for the bureaucracy to respond to the requests of the public for such decisions. No doubt that is something that has been thought about by the Government with respect to resourcing because I have no doubt that it will require additional resourcing on account of the substantial body of administration and decision making at that level that already exists and is being added to day by day.

Mr Attorney, I did have some contact with the Law Society and you may be able to indicate to me what has happened since October of last year. I know that there were some concerns expressed with regard to what was being done in respect to the Judicial Review Bill. I assume that you have in fact had continuing consultation with them since that time. The view that they had was that the only bill they had seen at that stage in October was the 1997 version of the legislation and they made some comment to the effect that they had noted that the intention was to have remedies provided by the bill as additional to or at least concurrent with remedies presented or presently available by way of prerogative writ and governed by the Supreme Court (Civil Procedures) Act and section 72 of the Rules of the Supreme Court.

It seems to be this element of concurrency that they were confused over at that stage and I do seek from you some understanding about whether or not they have been spoken to, whether there is an intention to have concurrency or whether in fact that has been usurped, if you like, by this further piece of legislation.

Mr Patmore - Do you have the amendments I am going to move?

Mrs SWAN - No.

Mr Patmore - I'm sorry, I thought you might. I am moving three amendments and they come from the Bar Association and not the Law Society.

Mrs SWAN - Okay, I do not know whether the Law Society has spoken to the Bar Association but at 4.55 p.m. this is really starting to get slightly silly.

Mr Patmore - In our discussions -

Mrs SWAN - Well, I have not seen the amendments at all. I am alert to the fact that there is some difficulty expressed to me by the Law Society with regard to the 1997 version of the Judicial Review -

Mr Patmore - This is the 1999 bill.

Mrs SWAN - I understand that, however their view was they had at that stage - and that was late last year - looked at only the 1997 version. Are we -

Mr Patmore - I can help you there. That was the previous bill, this one covers the concerns.

Mrs SWAN - So there has been full consultation with the Law Society -

Mr Patmore - Oh, yes - and the Bar Association.

Mrs SWAN - with regard to the 1999 version. They are absolutely comfortable with regard to their questions as to concurrence.

Mr Patmore - Yes. It was the 1997 bill that those questions were raised over, and they're content with that. The Bar Association had some minor amendments, minor considerations. They put forward some suggestions and we said yes.

Mrs SWAN - Okay. You are going to answer in your response, no doubt, this aspect of concurrence and how that is addressed in the 1999 version of the bill, which seems to be the specific matter they were addressing in the response that I have from them. Obviously I am anxious to make sure that that has been attended to.

Mr Groom - Are we getting a copy of the amendments?

Mrs SWAN - We do need a copy of the amendments because, as I say, this is late in the day - five to five on the day that we are about to get up -

Mr Patmore - They're very minor.

Mrs SWAN - Minor? Are they in fact addressing the concerns of the Bar Association? Is that what you are saying?

Mr Patmore - Yes, the Bar Association. I'll slip you a copy of them.

Mrs SWAN - Okay. I am interested to know whether they are to do with concurrence or whether in fact the 1999 version of this bill has addressed the Law Society's concerns.

Mr Patmore - There's no problem for the Law Society.

Mrs SWAN - They are quite happy. All right. You can perhaps indicate to me in your response the answer to this matter of concurrence with the Supreme Court Civil Procedures Act, and with the Rules of the Supreme Court and what is to apply there because that is obviously something we have to resolve.

Mr DEPUTY SPEAKER - Order. If the Attorney could show us a copy of those amendments we could get them distributed.

Mr Patmore - Yes, I will. I'll hand those in while I'm doing that.

Mrs SWAN - I think we had better go through every bit of this damn bill and it will go way beyond six o'clock, that is the whole problem.

Mr Patmore - We're not going to finish this today.

Mrs SWAN - No, we are not. You are getting up a six, are you?

Mr Patmore - Yes. I think this will take quite some time and I don't want to hurry.

Mrs SWAN - Of course it will, there is no question about that.

My understanding is that this particular bill gets rid of the common law remedies that are currently obtainable through the prerogative writs -

Mr Patmore - Yes.

Mrs SWAN - such as certiorari mandamus , prohibition and, as you have already said in your second reading, the less common prerogative writs of quo warranto and scire facias . Again, you have indicated that the Law Reform Commission's parliamentary reform committees have for year upon year complained about the difficulties associated with these common law writs, and this has been one of the reasons that has finally moved this legislation into the House. I think you also indicated that all other States bar Tasmania to this date -

Mr Patmore - No, Western Australia.

Mrs SWAN - Western Australia still maintains prerogative writs? Right.

Again, as we examine this in Committee, we are anxious to get an understanding about the full cover, if you like, for remedies that will be obtained under this now prescribed arrangement so that we get some feeling for the situation as to whether or not the common law writs were broader. I understand quite clearly that they had difficulties relating to procedure, but I am anxious to know whether or not there is a view that once you start codifying this sort of thing, you are not locking out heads of action or remedies that might have been obtainable under the very broad arrangements that applied at common law. Perhaps while it might be a difficult question to put, you may be able to give me some indication as to whether or not we have set up the legislation in a way that can address all the problems that are likely to be had by the general public with respect to administrative decisions.

Again, you have indicated, Attorney, that once the prerogative writs are abolished, what we are doing is replacing them by an order of review by the Supreme Court, and a person of course, after having obtained under the legislation the reasons for the decision and why it was made, can then decide to approach the Supreme Court to seek a remedy. It will in fact then relate to matters that are now obtainable at common law, and relate to the illegality of a decision and not the merits of a decision - that is quite different from the merits process. I am just going to note the advantages of the procedure that applies here. You are indicating that it allows the court in such a judicial review proceedings to focus on substance and it does not bog us down in the technical issues that have so far weighed down the seeking of such remedies at common law. Obviously it will provide us with a greater degree of flexibility in not being constrained in this manner but I do seek some further inspection in Committee to make sure that the language we have used, if you like, covers all aspects of possible remedies and procedures.

You have indicated of course that this does follow the Queensland Judicial Review Act of 1991 and the Administrative Decisions (Judicial Review) Act 1997 of the Commonwealth and that means that we will have some law that is already made on those decisions made under that legislation that will be helpful for the Government and the courts with regard to the remedies as they apply or as they will apply under this act in Tasmania.

Obviously, again, the describing of the grounds of review in summary form is an intention to put it no doubt in understandable language and that of course will obviously be of assistance to the general public where matters of common law were complex and difficult for the public to understand. I suppose when it comes to a question of review it is important to make the public aware of what it is that they are seeking redress on so that they do understand the process, they understand the language in simple terms because the law has a way of locking out members of the public by addressing issues in a highly technical language that can be off-putting and very difficult for members of the public to understand and I think it perhaps acts as a disincentive to members of the public to come forward and seek some sort of redress. It certainly adds to the complexity of anyone who proceeds along those grounds to understand the issue fully, understand what their solicitor is doing on their behalf and that leads to confusion which should not apply in matters of remedy particularly. In that sense what the bill seeks to do is likely to be highly beneficial.

I think at this stage I will conclude because I do want to go into Committee and look at matters inside the bill. The Opposition agrees with the changes, we think that they are basically something that had to come. I am aware, as I said earlier, that my former colleague will have a great deal of misgiving about it.

Mr Patmore - Kittens is the word.

Mrs SWAN - I suppose other than making sure that we have encompassed everything that we possibly can. The point of codification is that it often makes it difficult to be absolutely sure that that is the case, that if we can get some understanding of that then we support the greater simplification and something that we will concentrate on is the remedy and the substance of the case rather than procedural matters alone. I support the bill.

Mr GROOM (Denison) - I can recall some discussion about this concept when I was Attorney and, as my colleague said, the honourable Michael Hodgman was most concerned about the idea of removing prerogative writs. I must say that when I looked at that at the time they were respecting his point of view. I felt that they could be quite cumbersome and difficult to understand and deal with and proceed under for citizens and legal practitioners. I could see some sense in a modern method of reviewing those sorts of decisions with modern procedures that might remove those antiquated elements but still achieve justice in terms of its results and in terms of the process.

I am just wondering if the Attorney could give us an outline - he may have done in his second reading speech already, or the facts sheets - to which areas does this apply. I know at the back -

Mr Patmore - Clause 44.

Mr GROOM - I know at the back it lists the ones to which it does not apply.

Mr Patmore - Clause 44 tells you which writs the court will no longer issue.

Mr GROOM - Yes, I know, but there is a procedure now for reviewing decisions and some areas are excluded.

Mr Patmore - Schedules 1 -

Mr GROOM - I notice on pages 47 and 48 - on page 47 it talks about GBEs -

'Decisions of Government Business Enterprises, within the meaning of the Government Business Enterprises Act 1995 , relating to their commercial activities.'

are not decisions to which this applies. You go over the page -

'Decisions of either one of the following statutory authorities relating to its commercial activities' -

you have TAFE Tasmania and Tourism Tasmania. I have not thought through all the different areas of activity. The TT-Line Gaming Act 1993, referred to on page 42, suggests that decisions under that act are not subject to these procedures. What about the TT-Line line itself? The TT-Line, as I understand it, is not a GBE; it is not one of the two listed here on page 48. The TT-Line makes all sorts of decisions that might impact upon individuals who may want to seek some sort of redress. Maybe that is covered elsewhere in the bill but that just comes to mind. There might be some other areas of commercial activity. No doubt that has been examined, I would hope and trust, to ensure that it does not have application.

Mr Patmore - Yes.

Mr GROOM - This one interests me - clause 30 on page 28:

'If a person makes a decision to which this Part applies, a person who is entitled to make an application to the Court under section 18 relating to the decision may request the person to provide a written statement relating to the decision.'

So if you have the right to apply to the court you can actually ask directly, rather than going to the court, ask the body or the person making the decision, as to the reasons. I gather that is what that is all about - it does not really say the reasons, although the headline says 'the reasons':

'requests the person to provide a written statement relating to the decision.'

That would say anything, could it not - 'a written statement relating to the decision'.

Mr Patmore - No, section 18 is an application for a review of a decision, not an application for a review of conduct.

Mr GROOM - But this one is requesting a statement -

'(2) The request must be made by written notice given to -

(a) if the decision was made by the Governor-in-Council or by Cabinet, the Minister responsible for the administration of the enactment; or

(b) in any other case, the person who made the decision.'

It is an interesting one, is it not, because it means Cabinet makes a decision. As I understand that, the person could write to the minister asking for reasons for that decision or in respect to an Executive Council decision. The Premier has already said those discussions are confidential; I would imagine the reasonings would be confidential. Everyone is sworn to secrecy in respect to Executive Council matters, although I must say the courts have determined that discussions are not privileged in the sense that there is no access to those decisions. Indeed there are a number of cases where the courts have actually sought and obtained the information about what happened at the Executive Council. So we think it is secret but the court - and there is a very good High Court decision on this, the question of what is in the public interest to get access to the information.

This is quite a significant provision which enables a citizen to seek from a cabinet minister the reasons for a cabinet decision or the reasons for a decision by the Governor-in-Council - that is, the Executive Council. Under section 31:

'Subject to this section, a person to whom a request is made under section 30 ("the decision maker") must, as soon as practicable, and, in any event, within 28 days after receiving the request, provide the statement to the person who made the request.'

So there is a requirement there for the cabinet minister in this case to provide that statement within a period of 28 days. This is a new body of law which places an onus on decision makers to provide reasons. I am just wondering how the Attorney sees that provision. Obviously it applies to Cabinet, because it says so; it applies to Executive Council, because it says so. Where else does it apply? It applies generally, I would think. Where are the limits on clause 30? Of course that is not going to court so there is not that problem of the costs and the time factor in seeking some redress from the court but it is simply going directly to the person to try to find out why they made that particular decision. I would like to know from the Attorney if the bill is based upon other State legislation.

Mr Patmore - Yes, I said that in the second reading speech - Queensland.

Mr GROOM - I am sorry, I missed some of that second reading speech - I apologise for that. I was just wondering if it applies in all the other States and how it is working in the other States.

Mr Patmore - Queensland.

Mr GROOM - Is that the only other State?

Mr Patmore - No, every other State except Western Australia.

Mr GROOM - Sorry, except Western Australia. If it is the same terms, do we have some report on how it is actually operating up there now? Sometimes there can be a proposal - and this one goes back a couple of years now - but since that proposal was initiated, there would have been experience on how it has actually operated in practice and I would like to know, and I am sure my colleague would as well, what the feedback is on how the legislation is operating in other States.

As Mrs Swan said, we are not objecting to the concept and the basic thrust of this, it seems to us to make some sense, and especially if we have the assurance that the Law Society has no concerns, the Bar Association subject to those amendments has no concerns, then that is reassuring as far as we are concerned, but the profession generally is happy with this particular bill.

Nevertheless there is some detail here which we would like to go through during the Committee stage to get some explanation about how some of these things will operate in practice and if there could be perhaps some further information about the application, the commercial elements - the HEC - the Hydro-Electric Corporation, the other elements of the old HEC, I think they are all excluded. But it is an important area because they are going to be asked for decisions that will affect their commercial operations, no doubt.

I will leave the remaining comments until the Committee stage.

Mr PATMORE (Bass - Minister for Justice and Industrial Relations) - I thank the members for their contributions. I will deal with the questions that were raised. First of all, you asked whether the field was covered - clauses 18, 19 and 20 do that and in relation to abolition, clause 44 does that.

In relation to the question raised about concurrency, that related to the 1997 bill which did not repeal prerogative writs. The Law Society said that it should be repealed; in other words, let us have one system, and that is what the bill does. So there is no concurrency.

Mrs Swan - Right, no concurrency.

Mr PATMORE - In relation to the question raised on section 30, the bill only applies to administrative decisions under enactment and clause 4 clearly sets that out. In relation to schedule 3, that only applies in relation to a statement of reasons and those statements are still subject to judicial review, and the example used of the TT-Line - the TT-Line is not subject to the act because it does not make administrative decisions under an enactment. So I think those areas are fairly well covered.
The bill is basically a simplification. It is a piece of legislation that in fact markedly simplifies what has been a minefield for practitioners who can have what is a reasonable case knocked out on the basis of procedure rather than substance.

Mrs Swan - Yes.

Mr PATMORE - I think the other query raised as to how it is going in other areas, it is going well. There is no doubt whatsoever it was the right thing to do and we have been able to have a look at the other States and make sure that any mistakes that may have been made have not been repeated. I am happy to go into the Committee stage on the issues you wish to raise. I want to, and I have to anyway, because I wish to move amendments to clauses 12 and 13.

Bill read the second time.