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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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CONSTITUTION (APPOINTMENTS) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (19:51): I move:

That this bill be now read a second time.

As it is a relatively brief report I will read it into Hansard because the government would like to deal with this bill tomorrow if possible. 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 X of the Letters Patent made by Her Majesty on 14 February 1986.

Section 7 of the Australia Act 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 in respect of a state are exercisable only by the Governor of the state, except when Her Majesty is personally present in the state and chooses to exercise her powers and functions.

There is a debate about whether section 7, when read together with section 16 of the Australia Acts, means that 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 from 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 to the duties of office, it is possible for the Governor to appoint the Lieutenant-Governor or another suitable person—usually the Chief Justice of South Australia—to be the Governor's Deputy.

Clause XVII of the Letters Patent provides for this and sets out the circumstances in which the Governor may appoint a deputy. The doubts that have arisen about the official acts of some lieutenant-governors when they have assumed the administration of the state ex officio 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.

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. I commend the bill to members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

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.

Debate adjourned on motion of Hon. D.W. Ridgway.

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