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

Loftus Rule: A rebuttable presumption that where an NT government decision is questioned it is more likely to be a fuck-up rather than an innocent mistake. (Syn: snafu – situation normal, all fucked up)

The Loftus Rule—first invoked by esteemed Darwin and Hong Kong-based barrister Pat Loftus sometime during the chaotic years of the 1980’s as a reflection on the chaotic nature of successive Country Liberal Party government’s administrative incompetence, has long been considered as a rebuttable presumption that had fallen into apparent desuetude, due perhaps to increased competence among the bureaucracy and administrators of all things legal in the NT. Pat Loftus passed away in 2015.

Until yesterday that is. The Northern Myth is pleased to report that the Loftus Rule is back.

Late yesterday morning—while the rest of the country was transfixed by the bizarre events unfolding in Canberra—the NT Department of the Attorney-General and Justice dropped this media release containing the following words that captured the imagination of more that a few lawyers and journalists.

… nine judicial appointments had not been formally gazetted due to an administrative oversight within the Department of the Attorney-General and Justice … [the Department] … has carefully considered the matter and is confident that the administrative oversight, while unfortunate, does not affect the validity of the appointments, or things done pursuant to them.

The apparent unswerving confidence that the Department has in its own decision-making isn’t necessarily shared by others around the traps in Darwin and The Northern Myth has heard from a few lawyers around town that are casting very interested eyes upon this matter, particularly of they’ve had clients that’ve been slotted by any of the beaks in question. The Gazette Notice purportedly correcting this snafu—No S67 issued on 22 August 2018— can be found here, and a most interesting document is is too.

The roots of this “administrative oversight” go back to to early 2016, when, 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.

Up until mid-2016 the provisions governing the appointment of magistrates under the NT Magistrates Act required that magistrates be appointed by the NT Administrator (Section 4(3)) and swear an oath (Section 20(1). The Schedule provided the form of words to the Oath of office that required the appointee to:

… be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, Her heirs and successors, according to law, that I will well and truly serve in the office of and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will.

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.

This last requirement for gazettal is apparently the cause of the blind panic—we can only imagine what happened when the penny dropped—that would have run through the Attorney-General’s department (and elsewhere) once it was realised that no Gazette Notices had been made giving legal effect to the nine judicial appointments made since mid-2016. The continuing offices of Magistrates appointed prior to the commencement of the Local Court Act, i.e. under the old Magistrates Act, were preserved  by the usual transitional provisions.

Whether yesterday’s Gazette Notice will be effective to correct the “unfortunate … administrative oversight” is an open question, with today’s NT News quoting a spokesperson for NT Attorney-General Natasha Fyles saying that the government was considering whether to “ram through legislation at the next parliamentary sittings to ensure the appointments were valid.”

The full extent of the fallout from this snafu will become apparent over the coming days and weeks but word on the street is that more than a few criminal and administrative lawyers are shaking their heads and closely examining the wording and effect of yesterday’s Gazette Notice—which on my count doesn’t name the nine judicial officers whose appointments are apparently under question—and of the relevant legislation, particularly the application of the NT Interpretation Act. I’ve heard that at least one silk is clearing space in their diary for dates for a High Court challenge.

The Northern Myth asked the Attorney-General’s Department to release the legal advice it relied upon to support its decision—presumably provided by Solicitor-General for the Northern Territory Sonia Brownhill SC—but they declined to provide that advice.