Page 1062 - Week 03 - Thursday, 26 February 2009
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In interpreting the effect of this provision, a court would not be particularly interested in the political reality, which is that a minister may ignore the recommendations of a committee. It would look at the clear meaning of the words of the statute. They are unambiguous. The minister’s discretion is twice curtailed in section 228 of the Legislation Act by the command that he or she must consult with the Assembly committee before making an appointment to a statutory position.
To reach a conclusion that the Assembly intended that the minister should have discretion as to whether he consulted with the committee, the provisions would have to state that he “may consult” or “may choose” to consider the committee’s recommendation. It is quite unusual for a provision to curtail a minister’s powers in such unequivocal language, and it is clear that the Assembly intended to reserve for itself the power to comment on a minister’s choice of appointee. If a clause which commands a minister in such unequivocal terms to consult can be ignored, it would make a bit of a joke of the Assembly’s law-making power.
I think on the balance of probabilities that a court would find that the de facto officer doctrine would not apply in these cases. This is not a case where the government is acting with an abundance of caution just in case a court may find the appointments were not protected by the de facto officer doctrine. These amendments are absolutely necessary. It is not often that the Greens will agree that retrospective legislation is desirable in order to fix government oversights and omissions, but, unfortunately, this is one of those cases.
It is undeniable that the commissioners were qualified for their positions, and I have no reason to believe that the committee would not have agreed with the Attorney-General’s choice of appointees. It would be manifestly unfair for people who have assumed that the decisions of the commissioners were validly made to find that their actions were possibly illegal through no fault of their own. While I do not expect that any prosecutions would follow from the overturning of the commissioners’ powers, it would still be a major headache for the affected parties and there would be a lot of wasted energy and resources in obtaining valid authorisations and reasserting other legal rights. It would also be a waste of significant government resources.
I will now deal with the procedural provisions amending the Crimes (Forensic Procedures) Act. These amendments ensure that the original intent of the legislation is realised. I am reassured that the powers to compel the taking of a DNA sample is conditional on the order of a magistrate, and I think they are reasonable and proportionate in a human rights sense. The only problem I have with these provisions is the concern expressed by the scrutiny of bills committee. The Greens have, in the past, insisted that various provisions should include a reasonable grounds qualification in cases where the same act contains other provisions which spell out that a similar decision maker must have reasonable grounds on which to base their decisions. In these circumstances it is safest, acting with an abundance of caution, to include the same qualification.
In saying that, I in no way intend to insult or adversely reflect on the magistracy. Even though it can be safely assumed that a magistrate would always require reasonable
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