There is something disquieting about developers sooling lawyers upon citizens giving submissions to the leasehold inquiry.
The sooling has taken the form of defamation writs and applications to cross-examine those giving written submissions _ people of modest resources who do not have tax-deductible legal expenses and who are not working from the profit motive, though the developers would argue they are coming from a selfish position of keeping the city as it is.
Justice Paul Stein, who heads the inquiry, has quite properly rejected submissions to have lawyers cross-examine those giving submissions. The inquiry is not adversarial. It is an inquiry to see whether the law and administration of the leasehold system are working well or if there have been defects, to recommend change.
Unfortunately, Justice Stein has had to postpone oral evidence from one member of the community, Mark Dunstone, pending resolution of a writ issued against him by a developer for defamation.
The foundation of that writ appears to be a technical defect in the general principle that submissions and evidence before inquiries in Australia are protected from defamation writs. That principle has been long-established. If there has been some legalistic defect in the legislation that creates that immunity it should be remedied retrospectively. Restoration of what most reasonable people believe to be the position is an exception to the general repugnent retrospectivity.
The proper course, as Justice Stein has said, for those who were offended by a submission was to put in their own submission so the inquiry could then make its own further inquiries. In the new environment of freedom of communication, the public will have to be more discerning, recognising that the submissions of one or other party are no more than that: submissions. But they are important as triggers for further investigation, if necessary, and that is why protection must be given to them.
While this legal farnarkling is going on, of course, business confidence is not helped. The central aim of the inquiry is to find, as quickly as possible, whether there have been any defects in leasehold and what might be done to improve the position.
Building and developing interests say the leasehold system is a detriment to money coming into the ACT. However, it could be a benefit. Far from bemoaning the lower values for land use, it means businesses have more money for their core business.
Of more import, the inquiry must find out whether the administration of leasehold has resulted in a significant number of leasees benefiting from changed lease purposes or renewed leases without paying full market value for the changes. If this has happened it means that the public purse has suffered, without full publication of the details. It means, too, that ratepayers and the non-land-developing business community has been hit with charges higher than otherwise necessary.
The ACT should encourage building excellence and making profit through it; but there is no need to give a hidden subsidy through allowing a lease purpose change without payment for the value of that change. The most hardline Hilmeresque economic rationalist would agree with that proposition.