On July 26 our organisations received a media release from the state government announcing release of the Draft Tasmanian Civil and Administrative Tribunal (Additional Jurisdictions) Bill 2024 for just under four weeks of public consultation. The Draft legislation included numerous changes to the Tasmanian Civil and Administrative Tribunal Act 2020, which would affect the Resource Management and Planning Stream of the tribunal which community organisations depend on the most, including to review planning approvals. Any changes to the tribunal attract our attention. The absence of a plain-English document describing what was proposed made us worry even more. 

Clause 225 of the draft Bill was to insert a new section in the TASCAT Act titled “Tribunal to apply government policy to application for review”. This seemed to us to mean that when a community organisation or member of the public applied to TASCAT to appeal a decision to approve a development, the tribunal could refuse the application if the appeal was seeking an outcome contrary to the government’s policy. 

The amendment was to insert Section 75A, including that: In determining an application for the review of a reviewable decision, the Tribunal must give effect to any relevant government policy that was in force at the time at which the reviewable decision was made, except to the extent that – 
(A) The policy is contrary to law; or 
(B) The policy produces an unjust decision in the circumstances of the specific case. 

If our interpretation was correct, this would render the Resource Management and Planning Stream of the planning appeals tribunal virtually irrelevant and a tool of the government of the day. 

Advice from lawyers reinforced our concerns, and our organisations contacted the Department of Justice seeking an explanation. 

The department confirmed that there had been a drafting error with section 225 of the draft bill that was not intended and would be corrected. The full statement from the Department of Justice was: 

“As we discussed in relation to clause 225 of the above draft Bill, I am just confirming again that the policy intent was for the new section 75A to only apply to those same administrative review matters that it currently applies to under section 27 of the Magistrates Court (Administrative Appeals Division) Act 2001, and not to other matters before TASCAT. It appears that during the redrafting that occurred prior to production of the current consultation draft, the clause inadvertently ended up having broader application than intended. We propose to correct this for the final version of the Bill.”

We have been advised that the Department of Justice has received other complaints about this proposed change and that the department has stated that the changes to clause 225 (and possibly others) are the result of drafting errors. 

This statement is reassuring, and we quoted it in our submissions on the draft bill. We wanted a corrected Bill to be released for an extended period of public consultation, but the state government disagreed because they are in a hurry to table this legislation. The main thing is that the draft Bill gets corrected, and we will be checking the final version. 

But what has not been addressed is why such a cataclysmic drafting error was possible and what, if anything, will be done differently to prevent it happening agin? Why wasn’t a plain-English document released with the draft Bill, explaining intended changes, and would this have helped pick up the error? When a serious error occurs, shouldn’t the department automatically issue a public statement of correction to assist those making submissions?