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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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CONSTITUTION (APPOINTMENTS) BILL

Standing Orders Suspension

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:23): I move:

That standing orders be so far suspended as to enable the introduction forthwith and passage of a bill through all stages without delay.

The DEPUTY SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:25): Obtained leave and introduced a bill for an act to remove doubts relating to actions taken by Lieutenant-Governors and Administrators of the State at any time since the commencement of the Australia Act 1986 of the Commonwealth; and for other purposes. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:26): I move:

That this bill be now read a second time.

This is a bill to remove doubts that have arisen about the validity of official acts done by Lieutenant-Governors appointed by Her Majesty The Queen after 3 March 1986, when they have assumed the administration of the state ex officio under clause 10 of the Letters Patent made by Her Majesty on 14 February 1986.

Section 7 of the Australia Acts 1986 of the parliaments of the United Kingdom and the Commonwealth of Australia may be summarised as providing that all powers and functions of Her Majesty for a state are exercisable only by the Governor of the state, except when Her Majesty is personally present in this state and chooses to exercise her powers and functions. There is a debate—conjecture—about whether section 7, when read together with section 16 of the Australia Acts, means that the Lieutenant-Governors and administrators of the Australian states are to be appointed by the Governor or by Her Majesty. This creates doubt about the validity of official acts done by Lieutenant-Governors who have derived their functions and powers by their appointment by Her Majesty.

The New South Wales parliament has passed this month an act to remove this doubt, and there are bills before the Victorian and Tasmanian parliaments. As there has not been consistent practice about whether Lieutenant-Governors have been referred to as Lieutenant-Governor or as administrator when they have assumed the administration of the state, the bill refers to both. On most occasions when the Governor is unable to attend the duties of office it is possible for the Governor to appointed the Lieutenant-Governor or another suitable person, usually the Chief Justice of South Australia, to be the Governor's Deputy.

Clause 17 of the Letters Patent provides for this and sets out the circumstances in which the Governor may appoint a deputy. The doubts have arisen about the official acts of some Lieutenant-Governors when they have assumed the administration of the state ex officio. Those doubts do not apply to acts done by Lieutenant-Governors or the Chief Justice when they have been appointed to be the Governor's Deputy, as in those cases they derive their authority from an appointment made by the Governor. If I can make this distinction, the administrative acts of Lieutenant-Governor Mr Hieu are not in doubt, but the official acts of Lieutenant-Governor Bruno Krumins or Lieutenant-Governor Basil Hetzel may be in doubt.

Besides ensuring that the official acts of Lieutenant-Governors who have assumed the administration of the state ex officio are valid, the bill will protect the state from liability that might otherwise arise. This is a precautionary provision, done out of an abundance of caution. I commend the bill to members and seek leave to insert the balance of the second reading speech and explanation of clauses in Hansard without my reading them.

Leave granted.

Explanation of Clauses

1—Short title

This clause if formal.

2—Interpretation

This clause defines key terms used in the measure.

For the purposes of this measure—

Administrator means a person appointed as, or purportedly appointed as, or acting as, or purportedly acting as, Administrator of the State;

Lieutenant-Governor means a person appointed as, or purportedly appointed as, Lieutenant-Governor of the State;

relevant action means any act or omission of an administrative or legislative nature by a Lieutenant-Governor or an Administrator in the administration or purported administration of the State done or omitted since the commencement of the Australia Act 1986;

relevant time means from the commencement of the Australia Act 1986 (5 am GMT on 3 March 1986) to the day the Act receives assent.

3—Act binds Crown

The Act will bind the Crown in right of the State and, insofar as the legislative power of the Parliament permits, the Crown in all its other capacities.

4—Effect of relevant actions

This clause provides that relevant actions are deemed to have effect, as if they had been done or omitted to be done at the relevant time by a person validly holding the office of Governor.

5—Act not to give rise to liability against the State

Clause 5(1) provides that the State is not liable for any action, liability, claim or demand arising from the proposed Act.

Clause 5(2) states that no proceedings lie against the State, except to the extent that they would lie had the relevant action or omission been done by a person validly holding the office of Governor.

Clause 5(3) defines proceedings to include proceedings in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief. The provision also defines the State to include any State authority or officer of the State, the Government of the State, a Minister of the Crown in right of the State and a statutory corporation or other body representing the Crown in right of the State.

Ms CHAPMAN (Bragg) (12:30): I received a telephone call yesterday from a representative of the Attorney-General's office indicating that a matter of pressing legislation needed to be dealt with and seeking the opposition's cooperation to advance the legislation, which comes before us today. The opposition has considered the matter after a short briefing this morning and the provision of some documentation and will support both the bill and the necessity for its advance through the parliament posthaste.

The Attorney-General has presented to the parliament the need to introduce this legislation as a little like a pre-emptive strike to ensure that legislation which may be at risk or decisions that may have been made are not utilised—on the basis that they may be invalid—in a manner that promotes either the relief or avoidance of legislation or decisions that have been made, most likely in a court. It is important that when a mistake or an inadvertent failure to deal with a matter could put at risk legislation, decisions made as part of the process of legislation and/or government activity, it does need to be given attention and remedied. The opposition will accommodate that request and deal with it as expeditiously as possible.

The Attorney-General has outlined that the Australia Act 1986—a great time in Australia's history—did a number of things to ensure some independence for Australia. One of those provisions was that Her Majesty would carry out certain duties only when she was personally in attendance and present in the state in which she was represented by a governor. Otherwise, the powers and functions of Her Majesty in respect of that state would be exercisable only by the governor. The Attorney-General has highlighted the fact that there is another provision in the Australia Act 1986 which raises the question of a potential inconsistency in relation to whether Lieutenant-Governors (as they are called in South Australia) and/or administrators are to be appointed by the Governor or Her Majesty, or only one. So, as has been pointed out, the validity of their official acts could possibly come under question.

From the information that we have received (which has been confirmed by the Attorney today) it appears that other states have started to deal with this matter. New South Wales has introduced and passed legislation of this nature, and on the information provided by the Attorney-General Victoria and Tasmania have bills still pending in their parliaments. I understood that Victoria had introduced the legislation first and passed it, but it appears that it is still pending. In any event, the opposition was advised in the briefing that Victoria had jumped the gun on an agreement with other states.

Essentially, as I understand it, there was a meeting of solicitors-general (who are like Queen's Counsel for governments around Australia; they represent the states' interests, for example, in the High Court and carry out duties as counsel for the government) some time in 2006, and it was agreed that there was a potential problem.

Subsequently, meetings of both premiers and standing committees of attorneys-general agreed that, potentially, there was a problem. Therefore, some agreement was reached that there be a remedying of this around the state jurisdictions and that the best way to deal with it—to avoid any alarm or barrage of complainants who might rush off to court to potentially abuse the situation or at least tie up the courts for a long time—was to make it contemporaneous and that there be some cooperation in ensuring that it would all be brought at the same time.

The opposition was also advised that, for the past two and a half (nearly three) years, since I understand that the Premier of Victoria wrote to all the other premiers saying, 'We need to sort this out,' bearing in mind that there have been various elections and that we do not all sit at the same time, etc., the matter has not been progressed. I am not entirely satisfied that that is the case. If governments had wanted to deal with this, they could have and should have done so within a period amounting to nearly three years. However, it demonstrates, I suppose, a lower priority. Perhaps it would never be a problem, perhaps we would never be challenged, but it seems to me that this piece of legislation should have been dealt with some years ago.

I wish to place on the record that, even prior to the meeting of solicitors-general, there had been academic discussion about this matter; there had been attempts made back in the early 1990s via a letters patent procedure to remedy this situation. It was known that there was a problem; indeed the late Brad Selway QC (ultimately Justice Selway) had written an extensive article, published in 2003, in which he highlighted this issue. I wish to place on the record the concern that he raised. For those who are not familiar, Brad Selway was a QC practising in South Australia. He was a solicitor-general, and an excellent one, in my view.

The Hon. M.J. Atkinson: Outstanding.

Ms CHAPMAN: Outstanding.

The Hon. M.J. Atkinson: Vilified by Graham Archer from Today Tonight.

The SPEAKER: Order, the Attorney-General!

Ms CHAPMAN: He wrote many articles and papers which I am sure over the years have benefited my legal education, including that involving ministerial responsibilities in government. I have read some excellent papers over time, and I will quote from this particular paper, as follows:

But there are other aspects of apparent inadvertence where the consequences could be more serious. The Australia Act 1986 (Cth) commenced operation on 1 July 1986. As mentioned above, prior to that commencement Her Majesty, Queen of the United Kingdom, acting on the advice of her UK Ministers, made Letters Patent for each of the States, except New South Wales, where instructions were given. The Letters Patent only came into operation with the commencement of the Australia Act.

The Letters Patent for South Australia established various offices and bodies, including the Governor, the Executive Council, the Lieutenant Governor, the Administrator and so forth. In particular, Clause XVI of the Letters Patent provided that: 'The appointment of a Lieutenant Governor shall be during our pleasure by commission under our sign manual.'

There is no reason to doubt the validity of those Letters Patent. However, a power granted by the Letters Patent is subject to any inconsistent provision in a valid statute applicable in the State. In particular, such a power must be subject to the provisions of the Australia Act 1986. Section 7(2) provides:

Subject to subsection (3) and (4) below, all powers and functions of Her Majesty in respect of the state and exercisable only by the Governor of a state.

Subsection (3) refers to the appointment of the Governor and subsection (4) refers to the exercise of powers by Her Majesty whilst Her Majesty is personally present in the state. On the face of it, the power of Her Majesty to appoint the Lieutenant Governor is inconsistent with section 7(2) of the Australia Act which would seem to give that power to the Governor. The reality is that it was intended to deal with all these issues by legislation in the year or two following the passage of the Australia Act 1986. This did not happen in some states, but in others, such as South Australia, it was overlooked.

The consequences have been unfortunate. On 19 May 2000, Her Majesty the Queen of Australia, acting on the advice of her South Australian ministers, appointed the new Lieutenant Governor. There were necessarily doubts whether the appointment had been properly made. As the Letters Patent were made pursuant to the prerogative, an Order in Council was subsequently made by the Governor altering the existing Letters Patent, by providing that future appointments of the Lieutenant Governor should be made by the Governor and confirming and validating existing appointments. Obviously, it would be preferable if the validation could have been achieved by legislation, but that may have raised concerns in respect of the 'republican debate', even though it was not relevant to it.

The article goes on to outline a number of aspects. It is perfectly clear, from this and other academic statements made at the time, that this issue has been around for a considerable time and that there was clear notice that parliament needed to remedy it—that it needed to be sorted out. It could not have been more succinctly stated by Mr Selway in this 2003 article.

So, it is a concern to me that here we are today, all these years later, fixing up something that was effectively precipitated, as I understand it, by the threat in a published article in The Age or some other Victorian newspaper that this would occur. This prompted Victorian parliamentarians to rush into their parliament to set this cascading set of cards around the country to remedy the situation. I welcome the importance of resolving the matter by bringing it before parliament, but I still remain concerned about what else might be sitting out there that has not been resolved.

We have 5½ days left of this parliament, with two days being taken up by the Auditor-General's Report. The government is refusing to sit past that time, even though there are over 100 days before the next election. I want to know whether there are other aspects of other pieces of legislation about which we and the government are clearly on notice the parliament would have an opportunity to remedy if the sitting of parliament were to be extended.

I also make the point that the Western Australian position, as I understand it (and this has been known for some years), is that it needs to remedy the situation by the passage of legislation with a majority vote through its houses of parliament. It may be that it requires a special majority; I have not looked at the Western Australian constitution. However, in addition to that, there needs to be a referendum. I suspect that we will never see any reform happening in Western Australia, and it will run the gauntlet and run the risk with any action that state takes.

I understand that Queensland will not be dealing with this matter, because that state apparently does not have a Lieutenant-Governor or Administrators. So, that state has not been presented with the situation because it has not appointed these particular functionaries to carry out duties that are now potentially at risk. However, the remaining states do need to deal with this issue, and the states are at varying degrees of progress in relation to the legislation passing through parliament. As I have said, the opposition will support the bill.

Finally, we do, of course, have some capacity to remedy that potential by saying that by this legislation we are going to validate the decisions and acts made by these particular parties. As I understand it, the commonwealth will need to look at the Australia Act to ensure that it remedies the appointments defect, if it can be described as a defect. I do not say that disrespectfully of the Australia Act because I think it has been a fantastic piece of legislation. However, it is important that we appreciate that that is the second stage that needs to be signed off on and, obviously, we need to speak to our commonwealth colleagues about this.

I am disappointed that we are pressed to push this through the parliament when we have so much other legislation to deal with and when the government has known about this, at least actively, for six years (since 2003), when its former solicitor-general issued clear publications on this. I accept that, after attempts at remedy by letters patent had passed—and you have to allow time for Queen's Counsel to get together, have different views and argue the point—years go past, and that happens.

The Hon. M.J. Atkinson: As you will find out, if you ever have the job.

Ms CHAPMAN: There is no question about that. It was pretty clear by 2003, and it was crystal clear by 2006, that something needed to be done. So, shame on the Attorney-General for dragging the chain on this and leaving us, potentially, in a vulnerable position. However, he has my support and blessing for this bill.

Mr RAU (Enfield) (12:47): I will be very brief on this matter. I think it is important that the parliament does deal with this swiftly. It might interest members to know that a few years ago a very ingenious graduate of the University of Adelaide Law School—whose name I will not mention here, but I think the member for Bragg might know who I am talking about, and the Attorney may as well—was acting for a person who was charged with an offence, and he had a very novel defence to the charge. It was not that he was not there, did not do it or did not know anything about it; it was none of that.

The evidence he tendered before the learned magistrate was the vice-regal page from The Advertiser, because the vice-regal page from The Advertiser on a particular day indicated that His Excellency (or Her Excellency, as the case might have been at the time) was more than 70 kilometres from the city of Adelaide attending a show somewhere, that the day on which the royal assent had been given was this same day and that the signature was given by Her Excellency or His Excellency, as the case might have been. I should add a bit of further information: apparently, once the Governor is beyond a certain distance from the GPO, they cease to have that function and it devolves to the Lieutenant-Governor.

The point this ingenious fellow was making was that the Governor was in Coomandook, or wherever it was, on the day it was apparently signed by the Governor and that it was invalid because it should have been signed by the Lieutenant-Governor. This caused no end of trouble. It was a novel defence and one that this particular magistrate, and I think any other magistrate—

The Hon. M.J. Atkinson: I hope they took him down.

Ms Chapman: It failed.

Mr RAU: Ultimately, it failed—but after much huffing and puffing. People were scrambling around trying to find the Governor's diary and photographs. Had the Governor been photographed out of the metropolitan area? All sorts of bizarre things happened, and much merriment was had at the Crown and Sceptre Hotel. The point is that these things cause completely unforeseen and unforeseeable difficulties.

The Attorney and the member for Bragg are absolutely right in saying that it is essential that matters such as this be sorted out because the genius of the legal system is that somebody else will come up with an idea like this based on these matters, and the consequences are unforeseeable.

Ms Chapman: Like bikie gangs.

Mr RAU: Pardon?

Ms Chapman: Terrorists and bikie gangs.

Mr RAU: With unforeseeable consequences. So, it is a very laudable piece of legislation, and I hope it goes through very quickly.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:50): I thank the shadow attorney-general and the member for Enfield for their contributions. I commend the bill to the house.

Bill read a second time and taken through its remaining stages.

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