Page 1060 - Week 03 - Thursday, 26 February 2009
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Canberra Liberals is that these validation appointments be separated. As a result of that, in the detail stage we will be opposing the validation of these appointments in this bill.
MR RATTENBURY (Molonglo) (11.27): The contents of this bill have the potential to invite derisory comments about the very need for the bill itself, but to do so would be unkind. It is far better for the government to err on the side of caution in these matters and admit to minor mistakes like these while moving quickly to amend legislation so that it better reflects the original intention of the Assembly. Having said that, I do agree that some serious mistakes have been made and that that fact should not pass unnoticed.
The most series lapse we are dealing with today is the illegal appointment of a number of statutory appointees, as Mrs Dunne has just spoken about at some length. I will detail why I consider that these appointments were made illegally later. For now, I should say that I consider these appointments to be illegal in the administrative law sense of being an act purported to have been done which was beyond the legal power granted by the Assembly to the decision maker. In this case, the decision maker was the Attorney-General. However, I am not convinced that all or even a large portion of the blame should be borne by the Attorney-General.
Under the Westminster convention, the minister must bear responsibility for the actions of his departmental officers. But the realities of self-government in the ACT, with its impractical size of ministerial portfolios, mean that the convention on ministerial responsibility has to be tempered with common sense. No minister can be expected to be across the minutiae of all of their portfolio areas. In the matter of these illegal appointments, I understand the attorney was acting on the firm advice of his departmental officers, who advised him that the appointments would expire imminently and that, as a result, the operations of the Residential Tenancies Tribunal would be seriously compromised. The minister was also apparently advised that he could bypass the requirement to consult with the relevant committee and that he should make these appointments as a matter of some urgency.
When I ask myself what I would have done in the minister’s position on the day before the election, I cannot honestly imagine that I would have launched an investigation into the exact terms of my decision-making powers, gone against the advice of my most senior departmental advisers, and come up with my own alternative action plan to keep the tribunals operating as required over the intervening period.
While some admonishment back down the line of responsibility may be appropriate in some cases, to be unnecessarily harsh could trigger off a chain of recriminations from the minister down, which might impact adversely and unfairly on a more junior bureaucrat and have the effect of discouraging public servants from pointing out perceived defects in legislation. I am convinced that this error was one of omission to properly examine the terms of the minister’s decision-making powers rather than a deliberate attempt to bypass the requirement to consider the advice of an Assembly committee.
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