Talking Point: Ministerial discretion the key failure of Major Projects Bill

Handing god-like powers to ministers reflects decline of the rule of law, writes GREG BARNS

RESULTS: We know from other jurisdicdtions the capacity of planning ministers to declare projects to be spared appropriate accountability has led to disastrous consequences.

A DECADE ago Tom Bingham, a former senior UK judge, published a slim volume with the unexciting title, The Rule of Law. But the contents ought be compulsory reading for legislators and government officials. Bingham’s brilliant analysis of a concept that is abused often by politicians, and honoured in the breach by governments all too often, is particularly prescient in the context of the Gutwein government’s major projects legislation.

The minister responsible for this complex law, Roger Jaensch, describes it as “vitally important” because it would, he says, streamline approval processes for major infrastructure and construction projects in Tasmania. Any piece of legislation that does demolish duplication and which enables investors to have certainty about the rules of engagement is to be applauded.

But while the rhetoric and spin around what the proposed law does are enticing — what’s not to like about reducing bureaucratic interventions and red tape — the devil is in the detail and this is where Bingham’s wise words come into play.

The issue is ministerial discretion.

It is one of the dangerous aspects of the decline of the rule of law that modern governments favour ministers having god-like powers in decision-making.

The worst and most horrific example is found in the Migration Act at the Commonwealth level where Home Affairs Minister Peter Dutton can make decisions that destroy people’s lives.

In the Major Projects Bill, tabled in the House of Assembly last week, the planning minister has the ability to “in writing, make a proposal that a project be declared to be a major project. And what is a “major project”? In the Bill the definition is “major project means a project to which a declaration of a major project relates”. That definition is meaningless and deliberately so. Because while there are, scattered through the Bill, some criteria that have to be met, what is a “major project” is what the minister wants it to be!

But the enormous powers of the minister do not end there.

He or she has to send the “major project” to a panel of experts for assessment.

The experts are appointed by the Tasmanian Planning Commission which is an independent body, but in respect of which most of its members are political appointments in the sense that all are appointed by the minister.

Roger Jaensch, centre. RICHARD JUPE

So while Mr Jaensch said last week there “is no capacity for the government of the day, or any vested interest, to influence who is on that panel, or to change its decision” he was a little disingenuous.

It is hard to imagine Mr Jaensch appointing to the Planning Commission individuals and representatives of groups that take a consistently philosophically different view to the current government. Having said that, to be clear, there is no suggestion the current members of the Commission are anything other than robustly independent.

What we are talking about here is the optics of the appointment process. Surely the Parliament would be a better appointer of these positions.

In Bingham’s treatise on the rule of law, he notes that “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.” He noted that the “broader and more loosely textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification.”

The discretion a minister for planning has in deciding whether a development proposal should be a major project, and therefore subject to a special process where there are more limited rights for citizens, is very broad. It is the sort of “loosely textured” discretion about which Bingham complained.

We know from other jurisdictions around Australia the capacity of planning ministers to declare projects to be spared from appropriate levels of accountability has led to disastrous consequences. The cheap high-rise apartments in Melbourne today attest to this.

The other observation to make is that if you are going to give a minister the power to declare a project to be a “major project” then you need to ban donations from property developers to political parties and to have a full transparent real time political donations process.

This is to stop lobbying by individuals and companies of the minister for a “major project” and at the same time bankrolling the political party to which the minister belongs.

Hobart barrister Greg Barns SC is a human rights lawyer and a former adviser to Liberal governments. His latest book is Rise of the Right: The war on Australia’s liberal values.