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.

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, October 24 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 who were the victims of the administrative oversights.

And just to be absolutely clear — parliamentary draftsmen and women like to see every “i” dotted, every “t” crossed and every foreseeable circumstance hammered down hard with good strong six-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.

This article is an excerpt from The Northern Myth by Bob Gosford. Continue the story here.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey