We’ve heard a bit about “administrative oversights” over the past little while and yesterday morning as first order of business in the NT Legislative Assembly NT Attorney-General Natasha Fyles told the House about the latest local doozy.

Readers will recall that in late August I revealed that the NT government had made a long-running series of stuff-ups in appointments of new and acting judges to the Local Court dating back to 2016. All Local Court appointments since that time—bar one—had been made improperly in that a requirement that they each be the subject of a Notice in the Government Gazette had not been complied with.

… in the dying days of the 4 year chaotic reign of the CLP from 2012, then Attorney-General Johan Wessel Elferink introduced the new Local Court Act. That legislation effected a timely re-jigging of arrangements in the NT Local Court and included, among other things, provisions that re-branded the cohort of NT magistrates as Judges of the Local Court … Section 65 of the replacement Local Court Act retained the mandatory oath of office to Her Majesty in similar form but revised the method of appointment, requiring, by Section 53, that the NT Administrator may, by Gazette Notice, appoint a person to be a judge of the Local Court.

How this snafu was uncovered is unclear, though one source in the government has told The Northern Myth that a staffer (either in the Attorney’s office or in Parliamentary Counsel’s chambers) was preparing a Gazette Notice for the appointment of a Local Court judge when a colleague asked why they were preparing a Notice, apparently because none had been prepared for at least eight previous judicial appointments. The penny dropped when the staffer preparing the document told their colleague that section 53 of the 2 year-old Local Court Act required it.

The Loftus Rule, the Government Gazette and the NT judges who never were

At the time Attorney-General Fyles published a Gazette Notice of her own that purported to correct the “administrative oversight” though few legal practitioners up here thought that publishing a single Notice to correct the failure to publish nine Notices would fix the problem. The better view was that a legislative fix would be required.

Which brings us to Wednesday, 24 October 2018. Attorney-General Fyles presented the Local Court Amendment (Judicial Appointments) Bill to the NT Legislative Assembly. Her second reading speech noted:

This bill corrects an administrative oversight and will maintain the upstanding nature of our judicial system. It came to my attention that a number of appointments to the Local Court were not gazetted as required under the Local Court Act … The Local Court judges, Local Court Deputy Chief Judge and Local Court acting judges affected by this issue but unaware of it have otherwise taken the oaths they are required to take which is to promise or swear to well and truly serve in the office … They have held themselves out and were held out by the institution of the Local Court as judges. They have carried out the daily proceedings in which a judge sits and acts, with its associated ceremony and traditions, visible to litigants and the public. They have delivered justice to Territorians and served our community well … This bill seeks to remove the requirement for appointment by notice in the gazette. This will be replaced by appointment by instrument. An appointment by instrument is a more administratively efficient process and a process that officiates the appointment.

…

This bill validates all acts which those affected judges have undertaken in discharging their service to the court and the community. It gives certainty to the community that the decisions which those judges have made will not be set aside or invalidated … This bill amends a technical oversight and I do not think that this over sight was intended when the act was passed by the former Attorney-General. It is a genuine administrative oversight … I seek the support of the Assembly to pass this bill on urgency.

So, all fixed then! Nothing to see here, move along folks.

Well, not quite. In what I reckon is an unprecedented move—I can’t recall ever seeing an individual, let alone “upstanding” judges, named in legislation before but in the circumstances it was most likely necessary—the Local Court Amendment (Judicial Appointments) Bill lists and names the six unwitting Local Court judges the victims of the administrative oversights.

Elizabeth Jane Morris is taken to have been appointed under section 53(1)(b) as a Deputy Chief Judge on and from 29 July 2017.

Sarah Jane McNamara is taken to have been appointed under section 53(1)(c) as a Judge on and from 13 March 2017.

Gregory John Macdonald is taken to have been appointed under section 53(1)(c) as a Judge on and from 31 July 2017.

Richard Johnston Wallace is taken to have been appointed under section 60(1) as an acting Judge for the following periods:

(a)    from 1 August 2016 to 31 October 2016;

(b)    for a period of 3 months on and from 30 January 2017;

(c)     from 2 May 2017 to 1 May 2018;

(d)    from 2 May 2018 to 1 May 2019.

Sarah Jane McNamara is taken to have been appointed under section 60(1) as an acting Judge for the period from 5 September 2016 to 18 October 2016.

Richard James Coates is taken to have been appointed under section 60(1) as an acting Judge for the following periods:

(a)    for a period of 3 months on and from 30 January 2017;

(b)    from 2 May 2017 to 1 May 2018.

And just to be absolutely clear—parliamentary draftsmen & women like to see every “i” dotted, every “t” crossed and every foreseeable circumstance hammered down hard with good strong 6-inch nails—the Bill provides that anything that may have been done, had not been done or should have been done, ever and by anyone—is done.

81B           Validation of certain judicial appointments

An appointment specified by or under section 81A is a valid appointment and is taken to have always been a valid appointment despite the failure to publish a Gazette notice of appointment on or before the day on which the appointment was purported to take effect.

81C           Validation of acts performed

(1)   If a person appointed under an appointment specified by or under section 81A performed or purported to perform, or performs or purports to perform, any act under this Act or any other Act, that act is not invalid, and is taken never to have been invalid, by reason only of a defect in the appointment of the person under this Act.

(2)   Any act performed or purported to have been performed under this Act or any other Act by a person under an appointment specified by or under section 81A is taken to have, and always to have had, the same force and effect as it would have had if the person had been validly appointed under this Act before the act was performed or purported to have been performed.

(3)   Without limiting subsections (1) and (2), the performance of an act under this Act or any other Act includes the following:

(a)    the exercise or purported exercise of any power;

(b)    the making or purported making of any decision;

(c)     the granting or purported granting or issuing or purported issuing of any order or any other document;

(d)    the performance or purported performance of any function.

There are two remaining issues. Firstly, lawyers hate retrospective legislation with a passion and there may well be occasions in the future where a challenge is made to a particular decision by one or more of the affected Local Court judges while acting judicially and caught—through no fault of their own—in this snafu.

The second issue—related to the first but distinct from the judicial decisions made by the Local Court judges while on the bench (issuing fines, suspension of licences, custodial sentences etc)—relates to the non-judicial—sometimes characterised as administrative or persona designata—functions exercised by them. These decisions are separate to but just as important as their judicial functions and involve, for example, the issue of warrants for extradition from other jurisdictions and the issue of telephone intercept and search warrants of property, among a number of other matters. There is often a long lag time between the issue of a warrant or other administrative order and the time those matters result in charges or court appearances, which appearances may often be in a superior court such as the NT Supreme or the Federal court. And, unlike the often frantic sausage factory that is the Local Court, issues like the proper issue of warrants can be subject to greater forensic scrutiny in the superior courts. And rooting around in the entrails of a lower court judicial decisions is a favourite pastime of counsel upstairs.

It is impossible to know how many of these judicial time bombs there might be in the system or whether any of them will ever emerge as issues but the word on the street in Darwin is that some folks involved in the administration of justice would be “absolutely shitting themselves” should any of these matters be challenged in future.

Finally, as I noted back in August, the application of the NT Interpretation Act may be a key to any future challenges. Statutory interpretation is the legal equivalent of catching smoke … now you see it, now its blowing down the street on the back of a cock-eyed bob tropical storm. I’m no wizard with words but two sections of the Interpretation Act look likely candidates for consideration.

I’m buggered if I can work out what the following provisions mean—I’ll leave that up to word-wranglers better than me.

38 – References to offices etc.
(1) In an Act:
…
(2) Where, in relation to a power or function, there is, in a provision of an Act or in an agreement entered into by or on behalf of the Territory, reference to a person, an officer, an office, a body corporate or a body of persons and there is no longer such a person, officer, office or body, or that power or function is no longer a power or function of that person, officer, office or body, the reference shall be read as including:
(a) a reference to a person, officer, office or body for the time being having that power or function; or
(b) if there is no person, officer, office or body for the time being having that power or function, a reference to such person, officer, office or body as is specified by order of the Minister administering that provision or administering the Department or other Agency the functions of which include the administration of matters to which the provision relates; or
(c) if there is no person, officer, office or body for the time being having that power or function, no minister administering that provision and no department or other Agency with functions that include the administration of matters to which the provision relates, the Administrator.
(3) Where in an Act or in an order made under subsection (2), a person holding or occupying a particular designation, office or position is mentioned or referred to in general terms, the mention or reference shall be read as including a reference to all persons who at any time for the time being hold or occupy or perform the duties of that designation, office or position.

Now if that doesn’t tie your brain in knots, try section 39.

39 – Confirmation of appointments not required
An appointment or other exercise of a power does not cease to have effect or need to be confirmed by reason only that the person making the appointment or exercising the power has ceased to hold office or otherwise to be capable of exercising the power.

Notwithstanding my earlier invocation of this affair as an example of the application of the Loftus Rule, i.e. a stuff-up of magnificent proportions, it is now clear we’ve never seen a shemozzle like this before in the NT or elsewhere.

Hopefully we won’t ever see its like again …

You can read the draft transcript of yesterday’s proceedings in the Legislative Assembly here.

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