The newly formed Australian Climbing Association Victoria (ACAV) has made a significant move in its campaign to keep the Grampians/Gariwerd National Park open for climbers.
The ACAV’s lawyers sent a letter to Parks Victoria (PV) on Monday 2 September asserting that the set aside determination for the Grampians’ climbing bans are invalid and that they should be revoked.
The grounds as laid out in the letter are as follows:
First, the prohibition is not supported by reg 65 pursuant to which Parks Victoria by determination may set aside an area of a park in which “sport or similar recreational activities are prohibited”. Regulation 65, by reference to “sport” and the use of the words of limitation “or similar”, is confined to prohibiting activities of a competitive nature, conducted under rules, in contrast to the (lesser) power of restriction in reg 66 which extends to “sport or other recreational activities”. The set-aside determination purports to prohibit “rock climbing” per se and with purported “conditions” stating that “both free and aided climbing and bouldering … is prohibited”, being recreational activities that may be restricted (reg 66), but not recreational activities similar to sport that may be prohibited (reg 65).
Second, if, contrary to the first point the prohibition is within the text of reg 65, the set-aside determination is legally unreasonable. Noting that the accompanying briefing paper to the delegate, Simon Talbot, evidences the reasons for the making of the determination and the supposed mischief sought to be addressed:
(1) In making the determination there has been a failure to have regard to relevant considerations required, on a proper construction of the Regulations to be taken into account, being the objectives of the Regulations and the National Parks Act 1975 as to the encouragement and use of national parks for the public purposes of enjoyment, recreation and education, and alternative measures to address the supposed mischief available in regulations 20, 48, 53–55 and 66 of the Regulations.
(2) Alternatively, in view of the objectives of the Act and Regulations, the availably of those alternative and less burdensome measures, the supposed mischief referred to in the briefing paper, and:
(a) the extent of the measure by prohibiting all and any form of rock climbing and singling out that activity and no other recreational activity when other activities might also give rise the supposed mischief being addressed;
(b) the indefinite duration of the measure (not limited to 12 months as stated in the briefing paper);
(c) the width of the largely undefined and uncertain areas subject to the set-aside determination (incapable of meeting the requirement in reg 10 that Parks Victoria must erect or display signs at or near the entrance to each of those areas), the set-aside determination is legally unreasonable in being disproportionate to the supposed mischief to be addressed, noting that the determination is in the nature of by-law sourced from the power on s 38(2)(ca) of the Act, and the making of the determination is legally unreasonable in lacking an evident and intelligible Justification.
As far as we are aware, Parks Victoria is yet to respond to the ACAV’s letter of demands.
From VL’s understanding there are several courses of action that Parks Victoria could take:
- Ignore the letter and do nothing;
- Ask for further information from the ACAV, ie PV better wants to understand the ACAV’s claims;
- PV could ask for a meeting to either formally or informally to work through the issues and discuss the closures with the ACAV. These discussions would generally be confidential and normally without prejudice (with confidentiality agreements to be signed), particularly if they were part of a mediation process;
- PV could respond to say it will accept the service of documents, essentially this is saying “we are here, commence proceedings should you wish to.” (We are told that in such matters this is generally the default response);
- Theoretically, PV could revoke some or all of the closures. It would be unlikely that PV would do this without seeing what the ACAV has to say about these decisions either in court or mediation.
- This correspondence may give PV the opportunity to see that there was something wrong with the way it made its decision concerning the bans. PV may seek to revoke the set asides immediately, though it may remake the same decisions again anyway, but with a more thorough process.
There may well be grounds for attacking the basis of the bans. VL is not able to evaluate the merits of the grounds of review as put forward by the ACAV. However, perhaps what the ACAV are trying to achieve is to resolve the bans without going to court i.e. through mediation with PV.
If it does go to court, in terms of suing the government there are two types of review: merits review or judicial review.
In administrative tribunals (such as VCAT), the tribunal gets to remake the decision on it merits – in effect, it is able to change the mind of the government. Some Government decisions are subject to merits review and some are not. (The Grampians/Gariwerd closures are not such decisions).
Judicial review is going to a court. Here the court can decide things such as: was there bias, was there procedural fairness (i.e. someone who should have been listened to was not given the opportunity to speak), or were there circumstances that were not considered that should have been etc? Here the court cannot remake the decision in the way an administrative tribunal can. It basically can simply uphold the decision or rule that it is unlawful. If it is found to be unlawful, it is sent back to the decision-maker to make again (if the decision-maker still wants to do so).
If the ACAV were to win, the court may order that PV’s decisions need to be made again, if this happens PV could make better decisions or not decide not to proceed with the bans. Alternatively the decisions may be done in the same way, but in a manner that will withstand a legal challenge.
You can read more about the ACAV on its website here.