Page 1067 - Week 03 - Thursday, 26 February 2009
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consulted before the appointments were made. The letter also noted that these were short-term reappointments of existing members pending the commencement of the ACAT and it was important that there be no lapse in the ability of these important bodies to function. I did not hide it. In fact, I wrote to the committee pointing it out. That is not the act of a minister seeking to hide his actions.
When the standing committee subsequently raised the question of validity of the reappointments I sought further advice on the matter. I received advice that because of the possibility that the reappointments may be found to be invalid due to the failure to consult with the standing committee before making the instruments it would be prudent to take action to validate them. It was not possible to validate the reappointments by making further retrospective appointments as the appointment provisions of the relevant acts had been repealed upon commencement of the ACAT legislation. The only available action to protect the interests of people affected by the decisions of the board and the tribunal was to make validating legislation.
Obviously, the government would have preferred not to have to make this legislation. But it is more important that the government do what it can to ensure the continuous seamless operation of these two important bodies of review. I remind members again that this matter relates to three short-term transitional reappointments of existing members whose names had come before the standing committee and this Assembly for consideration on numerous occasions. I stress that the integrity of these individuals is not in question in any way and that this step is only being taken to ensure that the decisions that they may have made in good faith are not left open to question by reason only of a defect in their appointment.
In that context, members may wish to note the relevant part of the report of the scrutiny committee. The report states:
The terms of the prohibition on the Minister making an appointment, as stated in subsection 228(3) of the Legislation Act 2001, are cast in mandatory language … and the result as it stands now is probably—
this is the committee’s view—
that the appointment is not valid …
The question is whether the terms of section 228 are such that it may be said that the Legislative Assembly intended that a failure to comply with its terms meant not only that a particular appointment was invalid from the outset, but also that any purported action taken by the appointee is also invalid. In other words, does section 228 operate to displace the operation of the de facto officers doctrine?
Prediction of how a court may apply this doctrine and its qualifications is always difficult.
Again, that is the committee’s view. In the end, however, it is always a question of resolving the issue in the particular statutory framework. It is not beyond reason to think that the terms of section 228 would operate to displace the operation of the de facto officers doctrine so that the acts of the member could be challenged. The
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