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Look again at class action bill

Tuesday 7th June, 2005

The Judicial Review (Amendment) Bill recently laid in Parliament will prevent citizens who do not have a direct interest in a matter from asking for judicial review of a decision by a government body.

In other words, it will bar class actions, that is, lawsuits brought by one person or group on behalf of others.

This is at the very least puzzling, since a significant aspect of the Judicial Review Act of 2000 was that it allowed precisely such public-interest litigation, for the first time in this country.

In that regard, then, this bill would appear to be a backward step.

The only government comment on the bill so far has been to say the number of applications for judicial review has been clogging up the court system.

But even if this is true—and the Government has not produced any figures to show that it is—that is not a reason for banning such actions. It is a reason for ensuring that the courts have enough judicial officers and other resources to cope with the needs of the people.

Would the Government say that because, for example, murder cases are clogging up the courts, no further murder charges may be brought?

The Judicial Review Act in its present form allows the court to weed out undeserving cases, giving it the power in Section 7 to “exclude the mere busybody,” and to take into consideration, among other things, the importance of the matter raised, the genuine interest of the applicant in the matter and the nature of the decision against which relief is sought.

Also disturbing is the latest government order allowing wide-ranging exemptions from the Freedom of Information Act (FOIA). This comes on the heels of orders exempting the Central Bank and the National Entrepreneurial Development Company (Nedco) from having to provide information under the act.

The Government’s explanation of the latest order was that owing to the nature of the Integrity Commission, it was unconstitutional to ask for information from the commission under the FOIA.

But rather than addressing that issue alone, the Government chose to bring a blanket order that no one may obtain information from any public authority—and there are 160 of these-on a matter that that authority is investigating.

These two matters are linked, for as was pointed out in Parliament on Friday, very often, in order to obtain information, citizens must make use of the FOIA to find out the facts on which to base an application for judicial review.

The bill and the order will make it harder to find out what government bodies have been doing and to question their actions in the courts.

Members of the public are sufficiently distressed by the Judicial Review (Amendment) Bill to be circulating a petition against it, which is to be laid, in an unusual move, in Parliament.

The Government is reconsidering its blanket exemption from the FOIA, after the Opposition raised objections in Parliament last Friday.

It should be prepared to take a similar position on the Judicial Review (Amendment) Bill-or at the very least to offer the public a powerful argument that will allay the widespread fears about the intentions and effects of this legislation.

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