Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

INLAND FISHERIES (DIRECTOR OF INLAND FISHERIES

VALIDATION) BILL 2003 (No. 41)

Second Reading

[2.59 p.m.]

Mr GREEN (Braddon - Minister for Primary Industries, Water and Environment - 2R) - Mr Deputy Speaker, I move -

That the bill be read now a second time.

The purpose of the bill is to validate the actions of a person acting in the office of Director of Inland Fisheries from 1 March 2000 to 26 May 2003 inclusive. The Inland Fisheries Act 1995 controls and regulates freshwater fisheries in inland waters of Tasmania. The act provides for the appointment of a Director of Inland Fisheries who is a corporate sole.

The background to this bill is that two weeks ago a routine check was conducted of statutory appointments within the Department of Primary Industries, Water and Environment. The check revealed that no valid instrument of appointment existed for Mr Greg McCrossen as Director of Inland Fisheries. Mr McCrossen was appointed as Commissioner of the Inland Fisheries Commission in 1999 under the provisions of the then Part 2 of the act. This position was an administrative appointment and headed up a group of associate commissioners. The Inland Fisheries Commission and all positions lapsed when Part 2 was repealed in 1999 and replaced with the statutory position of Director of Inland Fisheries as a corporate sole. The amending legislation had an effective date of 1 March 2000. It is now clear that no appropriate appointment of Mr McCrossen was made under the new Part 2 and, as a result, since 1 March 2000 until the new Director of Inland Fisheries was validly appointed on 27 May 2003, no-one has legally discharged the functions of the director.

This bill will validate and legalise actions and decisions taken by Mr McCrossen as director during this period. This is particularly important as the director entered contracts and agreements, issued angling and commercial freshwater fishing licences and penalised offenders through the justice system.

In conclusion, the measures outlined in the bill will immediately safeguard the interests of the inland fisheries industry and ensure that no subsequent legal action can be taken as a result of lack of valid appointment during this period.

Mr Deputy Speaker, I commend the bill to the House.

[3.01 p.m.]

Mr ROCKLIFF (Braddon) - Minister, the State Opposition will be supporting this bill although I might say it is a pity that we are asked to come here today to support this retrospective legislation to fix, quite frankly, what is a monumental government stuff-up. We find it unbelievable, in fact, that a person can operate in a statutory position for three years without being appointed. However, Minister, I do not blame you, you were not in the position at the time. I know Mr Llewellyn had a huge workload in the previous administration, which included Police and Parks and Wildlife, but it is still no excuse.

In any event, the future direction of the IFS does remain uncertain, despite the assurances from you, Minister, that an adequate base level of funding has been secured to retain the IFS as a separate body. The base level of funding of $721 000, in my view, falls far short of what funding is required for the Inland Fisheries Service. Indeed the annual funding of the IFS over the past five years has been in the order of $1.03 million, and ironically this year's budget is around $725 000, which is exactly the same amount as it was 14 years ago in 1989.

We hear from the budget Estimates that the minister has planned some changes for core functions of the IFS, but as yet we do not know what they are. I will be very interested to find out if you can enlighten us today, Minister, on what the recommendations might be in the review that is perhaps going on. The State Opposition certainly recognises this value to the State anglers of Tasmania, and they deserve far better than the bare bones that the IFS has had in recent years, and the anglers also deserve, in my view, not to be kept in the dark for too long about your future plans for the Inland Fisheries Service.

I take one example with regard to Salmon Ponds. Minister, you did refer in your budget Estimates that the Inland Fisheries Service should not necessarily, in my view, be there to manage a heritage site. What then, I want to know - and a lot of other anglers do, too - is to happen to their hall of fame, for example? Many of the questions still remain with regard to the IFS, and I think it is your duty, Minister, for you to inform us here today what your plans are.

With respect to this particular legislation that we have here before us today, it is symptomatic of the mess the Government has got itself into with regard to the Inland Fisheries Service, and it is systematic of a government with a recent history, really, of coming to Parliament to fix up administrative bungles. For example, the Government could not even get the right transfer of the Royal Tasmanian Botanical Gardens to the Premier's new department. We had to deal with amending legislation so they were not left flapping in the wind.

Mr Green - What about when we had to validate Bob Cheek? Remember that one? No, you were not here then.

Mr ROCKLIFF - I was not here then so I will take no responsibility for Mr Cheek, thank you very much.

Members laughing .

Mr Hidding - Or John White.

Mr Green - I'll be just interested to see whether it is on your list, though.

Ms Putt - What about John White?

Mr Green - Yes, what about him?

Ms Putt - We had to validate John White, too.

Mr Green - Have we had to validate you yet?

Mr DEPUTY SPEAKER - Order. Mr Rockliff has the Floor.

Mr ROCKLIFF - Thank you, Mr Deputy Speaker. Generally speaking, the Parliament should treat retrospective legislation with great caution but in this case we see that it is necessary to fix this problem but we really honestly believe we should never have been here in the first place. We wholeheartedly support the Inland Fisheries Service, its staff and its achievements through what has been, quite frankly, a very difficult time, a time of uncertainty and a time of clear underfunding. We will be supporting this bill here today but we hope that this is the first step in rebuilding the IFS and moving it in a far more positive direction than it has been in the last few years.

[3.06 p.m.]

Mr BOOTH (Bass) - Mr Deputy Speaker, in rising to speak to this bill I have to point out that we will be supporting the bill but I do have a number of concerns with regard to the way that the matter is being dealt with and the history of the appointment. Reading from your fact sheet here it seems that Mr McCrossen was appointed as Commissioner of Inland Fisheries in 1999 under the provisions of then Part 2 of the act. That was then repealed by the Inland Fisheries Amendment Act 1999 and replaced with a new Part 2 which created the position of Director of Inland Fisheries as a corporate sole and no subsequent appointment was made under the new Part 2.

That is fairly strange that no appointment was made. That seems to indicate that there is some sort of massive failure in terms of administration of that particular department under Minister Llewellyn. I have not heard any explanation from the Government as to why it was that this man who managed to be sent around the community waving his arms around as a director of Inland Fisheries was never actually appointed by Minister Llewellyn in the first place. Mr Llewellyn really ought to be falling on his own sword over that and I realise that the current minister is not responsible for that particular oversight. However it is a major oversight. This man, presumably, has gone about creating regulations, having people prosecuted under law. Presumably, people have had gear confiscated. They may have been fined. Has anybody been sent jail as a result of this man's actions?

Mr Green - Not that I am aware of.

Mr BOOTH - Okay. There is nobody in jail at the moment as a result of an act that was unlawfully carried out -

Mr Green - No.

Mrs Jackson - That would be the abalone.

Mr BOOTH - I realise there is a difference - fortunately - otherwise Mr Strachan I am sure would be immediately going to see his lawyers if it was the same minister who had stuffed up the delegation in that point.

However, compounding the stuff-up, we then go on to see that the result is that since March 2000 until the appointment of a new director, which happened on 26 May just the other day, no-one has had the legal authority to discharge the functions of director, but the discovery of this apparently was by a routine check of statutory appointments. How often do you do routine checks? You have not done a routine check since 1 March 2000, that is over three years. Do you do a routine check every 10 years, 20 years -

Mr Hidding - They'll be doing them more often now, don't worry.

Mr BOOTH - Or do you do a routine check when you want to get rid of someone, give them the bullet? No, you would not do one if you are going to give someone the bullet; you would not do a routine check then, would you? You have done a routine check on every appointment right through the Government - they do routine checks like this, do they? I do not believe this. I find this absolutely extraordinary that you could come into this House, hand to this Parliament a document that purports to say that the fact that this man in fact did not have the authority to do what he has done was discovered only as a result of a routine inquiry. Dear, oh dear, Minister, I think that is just preposterous and I do not think anybody in this House, even on your side, would believe that.

The reality is that it is as a result of a complete failure of Mr Llewellyn's duty as minister and the unfortunate transference of that failure onto the current minister, Mr Green, that Mr McCrossen is getting the bullet. That is what is happening here. As a circumstance of this of course we see here some validation of the Inland Fisheries director's position, but the reality is that there is in fact a sacking going on of a person. Why? Why is this person not being appointed to the position that he has held since March 2000? He was purporting to do all those things. Why is he not being validated at the same time as the regulations, which is really quite extraordinary? If you could go ahead and bring in validating legislation to fix up or attempt to repair all the things that have not been done properly since 2000, why can you not repair the fact that he did not have the proper appointments? Because you do not want to appoint him again. If that is the case, then you ought to be saying that you are not appointing this person because you do not want him there.

You have given some indication that it is a personal matter, but that is not good enough, Minister. That would not stand up in terms of some sort of inquiry or unfair dismissal. I have employed enough people to know that you cannot just decide not to employ someone because you do not like their nose or you do not like the look of them or you do not like the way they are conducting themselves, unless it is part of their employment contract.

Really, what you ought to be doing is reappointing this person to validate all the things that were not properly done and then dealing separately with the matter of Mr McCrossen's position within the department. That would then give the opportunity for natural justice for this person and to go through due process. It also of course raises the question that you might end up with some sort of law suit - have you sought legal advice as to Mr McCrossen's position, Minister, in regard to this? You do not want to answer that, do you? Normally Mr Green is quite happy to interject but he is being strangely silent today. Perhaps he will answer that later, Mr Deputy Speaker. I realise that he does not have to engage in a debate with me.

Mr Hidding - That's actually the process. You speak and he speaks.

Mr BOOTH - Well, thank you, Mr Hidding. I appreciate your schooling on matters of parliamentary conduct. It is most appreciated.

Is this personal matter the fact that Mr McCrossen in fact is not happy with the direction the minister is taking the department? I wonder if that is the issue here. I wonder if this Mr McCrossen is concerned about the underfunding that Mr Rockliff referred to a moment ago and I wonder if he is concerned about the direction that this particular IFS is heading? Has the minister got as part of his plan some sort of process or structure that the previous director did not agree with? Is it that it is becoming almost like a superministry for trout? Have they abandoned all their concern for the river ecology, conservation values, water quality and so forth? Is that what the director is opposed to? Are those the issues that personally you have a problem with with this person? Is he opposing the direction you are taking it? We have not heard what directions you are intending to take the department, Minister, so it is somewhat alarming to hear that there may be a major change within the IFS to discover that in fact the director has had no such valid appointment and then, coincidently, at the same time as the change, that this person is actually sacked. We think that that is not good enough.

There are some issues that need to be brought to the table. Has Mr McCrossen, for example, Minister - and you can answer this later - had opposition to some of these major in-stream impoundments that you are proposing at the moment? Is he opposed to your water management plan? Is he opposed to the Meander dam? Mrs Jackson is shaking her head, so I suppose as Attorney she has probably looked at the method of sacking this person.

Mrs Jackson - No, I haven't.

Mr BOOTH - Well, you were shaking your head. What about Basslink? Is he concerned about the effect on the fishing industry as a result of the sudden changes in river levels and lake levels due to Basslink perhaps? These are questions that really the House needs answered before we can be confident that it is a reasonable proposition - by a routine check two, three and a half years after the event - to suddenly make this person redundant. If you are going to validate all of these things, Minister, then you should be validating his appointment as well.

Our other concern with this, of course, is that you may end up with a major problem here with all of the people, as I said before, who have been prosecuted under this act. I guess that is something we will leave up to the Attorney-General and yourself to sort out. Apart from that, Minister, I have nothing more to say other than that we will obviously support the appointment and validation of the things to the extent that it does in this bill, although I doubt that it will save you in regard to people who have been prosecuted, because I do not believe you can retrospectively legislate to make somebody a criminal. I would say most of the prosecutions you have had would be ultra vires now, but I will leave that to your advice.

[3.16 p.m.]

Mr HIDDING (Lyons - Leader of the Opposition) - As this is a matter of quite some interest to the Lyons electorate, as the minister would appreciate, probably second only to Braddon in the number of people - well, it could even be up there with Braddon or more than Braddon - involved in inland fisheries. In Lyons, of course, it is part of the lifestyle, whether you are living in the Northern Midlands or in New Norfolk. If you are anywhere in the Derwent Valley and you want to find a common ground, a common subject, fishing is it. In fact I think on my diary - I ask you to block your ears here, Mr Deputy Speaker, because I would not like you to know this information - there is a function coming up with the Bothwell Licensed Anglers Fishing Club, a trophy night. I am not sure if I am going to be there, but I think I am. It is in two weeks' time, and if you arrive then you will be about a week late. I am really only saying that so that the Speaker does not arrive and you arrive, Mr Deputy Speaker.

Mr DEPUTY SPEAKER - If you are going from Launceston you might take me with you.

Mr HIDDING - Yes, I will swing by and pick you up. The Inland Fisheries Service without question has been grossly underfunded by this Government to do its role. It has not by any stretch of the imagination developed the fishery. The fishery is a wonderful fishery and it has been able to hold its own in spite of the fact that it has had no money spent on it in development terms. There are far more people involved in administration or enforcement than there are in fisheries development, and there is much scope to develop what could be an absolute world-class fishery. I hope the minister has some views on that and some plans to move it forward. I doubt that today he is in a position to inform the House, but I hope he is working on a few things. In fact I suspect he might be working on a few things, and in due course he is going to inform this House and thrill us all with his views on how the world will move forward in the area of fishing and game in Tasmania.

But this Inland Fisheries Service could have delivered the right outcomes for this State if it had not been choked for funds. It must have been a difficult time for the - I would like to call him the director, the person who believed he was the director, or the person that we all believed was the director - the purported director - Mr McCrossen, who I believe did a good job with small funds. I do not think it is appropriate here in this House that there be any innuendo about him being hunted and sacked and that there was some vendetta on, unless the minister is going to share that with us and then there ought not to be those kinds of innuendos. Mr McCrossen has a very good history as a long-term public servant in this State, and I take it he has reversion rights and will accept them and that is good.

It is an extraordinary situation of course, and from opposition we could not possibly stand in this House and not tip a bucket on the Labor Government for mismanagement. How could you possibly have a circumstance where you have a mandated director of Inland Fisheries Service, and you appoint somebody and he does not fill out the right forms and get the proper formal appointment happening. So all these matters, all these things that the director has been dealing with, are in fact ultra vires. Every piece of equipment that you have taken off somebody, every prosecution, every on-the-spot fine, we now have to play the record backwards. You have to take all the fishing rods back, Minister, and if there is anyone in jail they will have to come and stay at your place for a month or two, or we pass this legislation, of course. You can always do that.

Mr Booth - That mightn't fix it either. What makes you think this legislation will fix it?

Mr HIDDING - Because it says -

Mr Booth - That was written by a lawyer.

Mr HIDDING - That is a reasonable point, but any act done -

Mr Booth - You're going to retrospectively make people criminals, are you?

Mr HIDDING - Well, in fact if we do not act retrospectively, those people who broke the law and have been dealt with under the law will have their status upended and they will not have broken the law.

Mr Booth - That's right.

Mr HIDDING - But they did not do the right thing, did they. They were fishing without licences, they were probably tickling trout, they might have been fishing with wrong bait, they might have been introducing feral species into our waterways. Am I pushing the right buttons yet? They might have been doing dreadful things to the environment -

Ms Putt - They might have been after whitebait.

Mr HIDDING - and whoever they are they deserved what they got, and it is our duty to ensure that today, here, they are not exonerated.

Retrospective legislation is not good, it is a bad thing to do, but from time to time we are called upon to bite our tongues and pass such legislation because of human failings. Who was the ministerial nincompoop who was on watch when this nonsense happened?

Mr Michael Hodgman - Noddy Llewellyn.

Mr HIDDING - I note that he conveniently has meetings and is not in the Chamber, and that is probably pretty clever of him.

Mr Michael Hodgman - He's the licensee of the Welcome Inn now.

Mr HIDDING - You are right, he might be sharpening up his skills as a pub licensee for the Welcome Inn.

Mr McKim - A few pokies in there too, they tell me.

Mr HIDDING - Pokies and smoking. As the Minister for Health they will be choofing away in his pub there.

Mr Deputy Speaker, it is a strange situation that we are asked to validate these things, but from time to time because of human failing we need to do this. Human failing being what it is, it can visit any of us from time to time, except of course Michael Hodgman. I remember he was wrong once, I think it was in 1966 -

Mr Michael Hodgman - I thought I was but I was actually not wrong.

Mr HIDDING - That is right, he only thought he was and he was actually wrong in that. He was not wrong. Being a QC of course they are never wrong, there is just another way to look at it.

We reluctantly agree to help the Government out of the soup with this one and we join with the previous speaker who pointed out that, through a routine check of statutory appointments, this was found. You can bet your bottom dollar there will be a few more routine sweeps of statutory appointments from now on in case there are more ministerial nincompoops out there, but I am sure it will not happen again and we will be happy to put this legislation through and regularise this strange situation.

[3.24 p.m.]

Ms PUTT (Denison - Leader of the Greens) - Mr Deputy Speaker, it is an extraordinary situation that we are confronting here and trying to rectify in the Parliament today. We have a situation wherein until the appointment of the new Director of Inland Fisheries on 26 May - about a fortnight ago - no-one has had the legal authority to discharge the functions of director since March 2000, so that for over three years we have had somebody acting as if they were in the position, being paid as if they were in the position and all the rest of it but not actually being properly appointed to be the Director of the Inland Fisheries Service. I find it extraordinary that the Government simply claims that two weeks ago a routine check was conducted of statutory appointments and the check revealed no valid instrument of appointment existed for Mr Greg McCrossen as Director of Inland Fisheries.

It is indeed, as was described earlier, a monumental stuff-up. So what we find the Government seeking to do here today in the wording of the second reading speech is to introduce this bill that will validate and legalise actions and decisions taken by Mr McCrossen as director during this period. Obviously that has to happen. Clearly we have to validate what has occurred, but the Government is only partially validating and that is the issue that the Greens have with this. We understand you want to sack Mr McCrossen. We actually understand from the briefing that we had with officials that the deficiency was discovered when they were looking through the papers in order to sack Mr McCrossen, under your direction, so this, 'We were doing a routine check' stuff is some sort of cover-up for, 'We were looking at how to terminate Mr McCrossen's appointment and discovered he did not have one'.

That is what we were told by your officials in the briefing quite clearly. It was said quite clearly. It was said by the Solicitor-General and it was not contradicted by anyone else. I asked to check, 'Are you telling me this is how you found out and went through it?' and they said, 'Yes.' The person who was there from your office, the other people who were there, nobody contradicted that, so our understanding is that what happened was that you discovered the deficiency at the time you were asking your people to check through how to sack Mr McCrossen. That is how you found it out - right?

Now, the issue is that if he was not validly appointed and you want to now validate and legalise actions and decisions that he took, you should also validate his appointment. Then if you want to sack him you should sack him from that position. That way you are being totally fair about the whole thing.

Mr Hidding - Who's your lawyer? How do you work that out?

Ms PUTT - What do you mean, how do I work that out? Haven't you heard of natural justice? The guy has been acting as if he were in the position, he has been doing all the work, he has been paid for doing that job - the pay cheques did not stop so he was being paid for taking on the responsibility - he has taken on the responsibility, but there is a defect because he has not been appointed properly. So when you discover that problem, surely you validate everything; you validate his appointment and everything he did and then you give him the sack if you want to so that he is sacked from the position of the Director of the Inland Fisheries Service.

That is what the Government ought to be doing to be fair and to exhibit natural justice in this instance. It does not stop them getting rid of Mr McCrossen but it does make sure that the understanding of the Government and of Mr McCrossen and everybody else in Tasmania, which was that this guy was actually the director doing these things, is validated. Then he can get the sack and get whatever he is entitled to as a result of leaving that position which everybody believed he had. That is the fair thing to do.

Mrs Jackson - He didn't get the sack; his appointment ran out.

Ms PUTT - His appointment has not run out, the contract goes for another year. Mrs Jackson, perhaps you need the briefing.

Mrs Jackson - Yes.

Ms PUTT - His contract goes for another year and so it is not as if his appointment ran out; his appointment was never there in fact, and that is why we are here. I do not think you know what you are talking about. In my mind the issue is very clear; you are being most unfair. If you are going to validate what he did, you also have to validate that he was in that position and then you are free to give him the sack. You can validate it, get it through the Parliament and then give him the sack the next day. That is fine.

Mrs Jackson - That's what we did to Bob Cheek. That was a bit cruel though, wasn't it?

Ms PUTT - That is what you ought to be doing, but you are not. You seem to have a vendetta against this person and I think he is losing out in terms of natural justice. We really want to have clearly on the record that we think you are doing the wrong thing there, particularly when you know the conditions on which he will now go are a whole lot less than would be expected from someone who was in that position who then had their position terminated. He had every right to expect and understand that that was the situation he was in. I am not arguing anything more on behalf of the man other than to simply say it does not matter who they were or how they were doing the job, if you believed that they were validly in the job and were validly doing all the things they were doing, then you should not only validate the things they did, you should validate the fact that they were in the job and then you should go from there in getting rid of him. I think you are being really unfair not to do that. That is the point that I really wanted to make there.

Another issue that arises is that we have not had an explanation from you, Minister, that makes any sense whatsoever as to why you have sacked the man. There must be a reason. I do not think that it is acceptable that when you are in public office and he is in public office that you simply say, 'It is a personal matter. Go away'. You cannot sack someone in public office like that over some personal difference between you. I think you were trying to say something else when you said it was a personal matter. You do not have to go into the precise details of what was wrong but if, for example, you believed he was acting with impropriety in his job, you should say that. If you believed that he was incompetent, you should say that. If you believed you wanted to take the Inland Fisheries Services in another direction and he was incapable of following your instructions on that direction, you should say that. But to say, 'I am in public office, he is in public office. I just sacked him because of personal reasons. I don't like the cut of his jib,' is ridiculous. It is absolutely, totally improper. You have to give some sort of reasonable explanation. You cannot go round as a minister of the Crown just sacking anybody in the department that you happen to decide you have a personal difference with.

Mr Hidding - Is that what happened?

Ms PUTT - This is what he told the committee, that he had a personal difference and he will not say anything else. If that is wrong -

Mr Michael Hodgman - The minister said that, did he?

Ms PUTT - Yes, the minister put that on the record in Estimates that the reason he sacked Mr McCrossen was because of personal differences and he was not going to say anything else. I do not think that that is proper behaviour on behalf of a minister, that is what I am saying. If something was wrong with Mr McCrossen's behaviour in the way he did the job, then that is what the minister should say and that is acceptable. But the minister has not said that; he has not said there was anything wrong with the way the man did the job or anything like that. He simply said he has something personal against him. That is a really peculiar basis on which to sack someone.

Mr Green - Sit down, Peg, will you?

Ms PUTT - I will sit down when I have finished speaking, Minister. I hope you are going to clarify this because on the public record at the moment in the Estimates committee the reason we have is that you said you had personal differences with him. What I am saying is please clarify that.

Mr Hidding - Do you want the minister to tell Parliament all the details?

Ms PUTT - You obviously have not listened to what I said. What I said was you should say whether it is actually something personal between you or whether it is something that relates to the man's ability to do the job. If it relates to his ability to do the job, the way he does the job, then fine, I do not need to know all the details. We simply need to know that it was impropriety, incompetence or the fact that he would not knuckle down under that direction, or even just 'it was the way he did the job'. But that is not what the minister has said. What the minister has said is that he had a personal difference with the bloke. That is entirely different to the man not being suitable for the job, and what I am saying is in his role as minister and as this guy's employer, he ought to at least front up with some sort of explanation for why he suddenly gets the sack, particularly when everything that the guy has done is validated but his appointment is not validated.

There has to be a reason given, otherwise the accountability that ought to be there is not there. I am quite willing to accept that there may be very good reasons for getting rid of him. I am not saying that there are not. I am simply saying we have not had the sort of explanation to which the Parliament is entitled, and we are entitled to hold this Government accountable for its actions, including ministers accountable when they precipitately dismiss somebody. We need to know what was wrong, in a general way. We do not need to know all the specifics, but we do need to know if it was something to do with the fact that the person was not doing their job properly. But we have not had that, and that is what I am seeking.

So, yes, we will support the validation; really there is little choice. Obviously the previous minister, Mr Llewellyn, did not check, as he should have done, and neither did the people who were responsible to him, and I think it is really unfortunate that this Government will not front up and at least admit that.

Mr Booth - The recalcitrant minister is here now.

Ms PUTT - I know he is here now and I hope perhaps that he will get up and give us an explanation, because clearly something that he should have done was not done, and the Government is not acknowledging that. Indeed, in the first instance I think an attempt was made to blame Mr McCrossen for the deficiency. The buck stops with the minister, we all know that, and it was up to the minister to make that appointment and the minister did not make it, so there was a terrible defect there. I just think it is pretty gutless really of the Government not to at least be willing to admit that that is the case, because it is obvious to everybody here that that is the situation.

Yes, we will support the validation. We think the validation should have gone further. That is not to say that the minister should not be free to terminate this person in the position but he should have been validated in the position and then terminated. We would prefer to see this legislation validating everything, and the Government then proceeding to terminate his employment if that is their determination.

[3.37 p.m.]

Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, if I were authorised to file an indictment under the Criminal Code Act of 1924 I would have to prepare it in the form set out in appendix C of the Criminal Code Act 1924, and it would start with the words, 'In the Supreme Court of Tasmania'. It would go on 'The Queen against David Edward Llewellyn' and it would then say, 'To whit the Honourable William Michael Hodgman QC, Her Majesty's shadow attorney-general for the State of Tasmania, on behalf of Her Majesty the Queen, charges the Honourable David Edward Llewellyn with ministerial bungling and incompetence'. The first thing that has to be said is that 100 years ago or even 50 years ago the Honourable David Edward Llewellyn would have resigned, because his breach of ministerial duty sadly was so great that resignation under the Westminster system was the only appropriate and honourable course of action.

Now I want to make it quite clear that none of my remarks in relation to what has happened refer specifically to the present minister, Bryan Green, but I will be dealing with him in the latter stages of my address, because never has a minister got a nickname so quickly as Bryan Green. In the public service he is already referred to by those who are polite as 'The Executioner' and, by those who are less polite, as 'The Strangler'.

Members laughing .

Mr MICHAEL HODGMAN - The purpose of this bill is to validate the actions of a person acting in the office of Director of Inland Fisheries from 1 March 2000 to 26 May 2003. I have listened with considerable interest to the remarks of the Leader of the Greens and I will take them on notice and study them because it is implicit in this bill for the sixth time during my term as Her Majesty's shadow attorney-general that the arrogant and incompetent Bacon Labor Government has had to come to the Parliament and say, 'Please validate. Once again we have done something very wrong'.

It is now the arrogant Bacon Labor Government who has turned retrospective validation into an art form. Never, in so short a time, have I seen a government - on six occasions since I came back into this Parliament - come into the Parliament and say, 'We have stuffed it up again'. I am not going to do any smart things like work out what is the ministerial salary that would have to be repaid from 1 March 2000 to 26 May 2003. I repeat, Bryan Alexander Green is innocent. I can find no reason in the briefing that I had and our brilliant shadow minister, the soon to be honourable, Jeremy Rockliff MHA, had from the Solicitor-General -

Mr Green - Haven't you a middle name, Jeremy?

Mr Rockliff - Jeremy Page.

Mr MICHAEL HODGMAN - He is Jeremy Page Rockliff and he will be the honourable. We had an excellent briefing from the Solicitor-General of the State of Tasmania, Mr W.C.R. Bale QC, who is now the longest serving Solicitor-General in the Commonwealth of Australia.

Ms Putt - What's his middle name?

Mr MICHAEL HODGMAN - William Christopher Robin Bale is the Solicitor-General's full name. Jeremy Page Rockliff, for those members of the Greens who cannot read. I know I have said they cannot wash but they cannot read either - but that is another matter.

Mr Llewellyn - Well, he ought to get a bit of a serve, too, because he reads legislation.

Mr MICHAEL HODGMAN - Just hold on a minute, I have not finished with you yet. This minister pontificates - this is the Honourable David Llewellyn in the Parliament - a slow speaking, careful, conscientious minister in whom the public can have absolute faith and confidence that he dots the 'i's and he crosses the 't's. I would think at the very least he should stand in his place in accordance with those tenets that he and I hold dear and stand and apologise to the Parliament and seek its forgiveness. But I also think, because he is that sort of person, that he might just explain to us how this possibly could have happened.

He was the minister in charge of the provisions of the Inland Fisheries Act who took the executive decision to the Governor of Tasmania, made the appointment and then he took the action to effectively bring about, consequential on the repeal of Part II of the act, the statutory position of Director of Inland Fisheries as a corporation sole, which became effective on 1 March 2000.

Mr McCrossen had already been appointed and had already served government in this State. Let me just put it on the record, for what it is worth, that I like Mr Greg McCrossen. I have not had a lot of dealings with him but in all my dealings I have found him to be an absolutely outstanding, frank, open and, I believe, honest person. I honestly thought, from my little position, that he was doing his job pretty well. I reject any suggestion that he is any way to blame for what has occurred and I think it would be a monstrous denial of the fundamental principles of natural justice to in some way say it was his fault because no appropriate appointment was made. Heavens above! I have seen some Sir Humphrey stuff in my day but ministers are ministers of the Crown, they are members of the executive council and they are paid a very substantial salary.

We are doing the right thing, as an opposition should, in supporting this legislation but we have an absolute right, as both the shadow minister and the honourable Leader of the Opposition have pointed out, to criticise this bungling, incompetent, arrogant, self-congratulatory and repeatedly retrospectively validating Bacon Labor Government.

Look at the way the draftsperson has had to draft it. It reads:

'An act done or omitted by or in relation to the person referred to in subsection (1) in, or in respect of, the performance or exercise, or the purported performance or exercise, of the duties, functions, obligations, rights and powers of the Director of Inland Fisheries during the period specified in that subsection is not invalid by reason only that the person did not hold an appointment to that office under section 11 of the Inland Fisheries Act 1995 at the time the act was done or omitted.'

And who is the person mentioned in subsection (1)? It is the person who performed or exercised or purported to perform or exercise the functions and powers of the Director of Inland Fisheries during the period commencing 1 March 2000 and ending on 26 May 2003. Over three years everything that person did believing he was director is invalid: signing licences, authorising prosecutions, making appointments, advising government in relation to regulations, preparing minutes to go to the executive council, even signing the time book. Everything was invalid, every single thing! You should be saying, Honourable David Edward Llewellyn, mea culpa, mea culpa -

Mr Llewellyn - I might say that. If you give me a chance, I will get up and say something.

Mr MICHAEL HODGMAN - mea maxima culpa - do you understand? It means my fault, my fault, my most grievous fault.

Mr Llewellyn - It sounds like a bone.

Mr Green - You broke his maxima culpa!

Mr MICHAEL HODGMAN - I was waiting for 'The Strangler' to interject. You have made quite an impression since your appointment but, as I said, the polite ones in the public service are already calling you 'The Executioner' and the impolite ones are calling you 'The Strangler'.

I am surprised, because you are a pretty frank sort of a person I would have thought, that you did not tell the committee why you had done what you have done. You are pretty well protected; we are aware of what arrangements have been made for Mr McCrossen and Mr McCrossen has chosen to keep his peace. The Honourable Raymond John Groom thought that a minister could not be hauled into the Supreme Court and made to answer questions -

Mr Llewellyn - But he was.

Mr MICHAEL HODGMAN - and he was, to his great surprise. He found himself before His Honour Mr Justice Underwood and he thought it was to be a brief cursory appearance, but he was there for several hours, in fact virtually a whole day. Whilst a minister is entitled, and I have been a minister myself, not to say why he or she has done something, those days are actually coming to an end, and it is now appropriate for me to conclude by saying why they will continue to come to an end. No matter what parliaments say about accountability the one great protection you, Minister, and I, and you, Deputy Speaker and all of us have is that under our great Australian Constitution - which proclaims in its preamble that we are united as one indissoluble Federal Commonwealth under the Crown - we still have the benefit of the royal prerogative and the prerogative writ is the great defender of the rights and freedoms of every single Australian.

Mr Llewellyn - I told you - I knew he'd get on to the prerogative writ.

Mr MICHAEL HODGMAN - Do not jest, my dear friend. Karen Green took the Fraser Government to court by way of a prerogative writ when the Federal Government said, 'We're not going to pay any unemployment benefits to school leavers until they have been out of the work force for a period of 10 weeks from leaving school'. She went to the High Court and said, 'This is wrong, it is affecting my proprietary rights. I have a right to have my case dealt with individually', and that great judge, Sir Ninian Stephen, later Governor-General of Australia said, 'You are so right'. '

Here in Tasmania a man called Ronald Thomas Heatley received a letter saying he was warned off every racecourse in Tasmania but he had not had a hearing, he had not been told why. When he asked why he was told, 'You are warned off under the Racing and Gaming Act'. I took his case to the Supreme Court of Tasmania and at first instance we lost before Mr Justice Chambers. We then went to the Full Court and the Full Court split and the newly-appointed Chief Justice of Tasmania, Sir Guy Stephen Montagu Green - now Governor of Tasmania, now Administrator of the Commonwealth of Australia - said, 'This case is one in which that man's fundamental rights were taken away from him other than in accordance with the principles of natural justice', so we lost 2-1.

We then went to the High Court of Australia and by this time I was in the Federal Parliament so I could not appear. That great lawyer, John Avery, from Tasmania led by Jim Merralls, QC, the Leader of the Melbourne Bar, took it to the High Court of Australia, Minister, and by 4 to 1 the High Court of Australia upheld the appeal. So Heatley's case is authority for the proposition where you are dealing with proprietary rights - and that includes the right to hold a job, which Ms Putt touched upon, the right to hold office - that if all else fails the citizen can go there to the Supreme Court of Tasmania or to the Federal Court of Australia or to the High Court of Australia, as the case may be, and say, 'I want to find out why I've been dealt with this way, and I want you to put it right'. So I am not in any way chastising you, and I am simply saying that the Parliament stands ready in an appropriate case, to say to a minister, 'You are going to tell us why, and if you don't a judge across the road will'. That is not the situation here, but I put it on the record because it should not be overlooked.

At the end of the day for three years a person who believed he was properly carrying out his statutory duties was in fact acting illegally. His actions were therefore unlawful, illegal and, as the Leader of the Opposition so correctly pointed out, ultra vires. Ultra vires means beyond power; he had no power to do that which he was doing. I will take on board Ms Putt's comments, in fact I will be discussing them with a senior member of the University of Tasmania before the day is over because it is a most interesting point that she has raised.

We will vote for the legislation and we will let this arrogant, incompetent Bacon Labor Government off the hook, and we will spare the guilty minister, the honourable David Edward Llewellyn, on this occasion, but no more. No more, Minister, you are on your last warning.

[3.56 p.m.]

Mr LLEWELLYN (Lyons - Minister for Health and Human Services) - Mr Deputy Speaker, I listened to what the member for Denison had to say about his prerogative writ and his build-up of accusation as a learned counsel that has been in fact repeated a number of times in this Chamber, but I have to say that with respect to this act the amendment that we are dealing with at the moment is unfortunate because people acted in good faith and with the knowledge that there were some changes necessary and indeed agreed to by all parties that the Inland Fisheries Commission move to be a service, as it is at the moment, and that the commissioners cease to be commissioners and that an advisory committee be established, and that the head of that particular division be the director.

Unfortunately I have say that, from my own point of view I did not see the fact that the transitional arrangements were in fact placed in the act in the way that they ought to have been, and that the continuity of that office from commissioner to director of the service was carried out in the appropriate way. There were some assumptions made, but that is not good enough, and, yes, at the end of the day the responsibility falls back on the minister. I received no advice of course from anyone that there was any concern, and in fact even with the change of government and the new minister coming to office I was unaware of the circumstances that were here. But again, no excuse and one has to accept the responsibility, ultimately, about these sorts of things, I guess.

Having found the anomaly, we are now in the process of trying to remedy it in the way that we are by bringing this piece of validating legislation into the Chamber. I accept some of the things that have been said and I do that with a sense of realisation that if I had been aware of the issues then obviously they would not have occurred.

Mr Michael Hodgman - Wait until it gets up to the upper House with commander Ivan Dean, former prosecutor.

Members laughing .

[4.00 p.m.]

Mr GREEN (Braddon - Minister for Primary Industries, Water and the Environment) - Mr Deputy Speaker, I recognised when I had to introduce this validating legislation that both opposition parties would have a bit of fun at the Government's expense. Obviously it is not the easiest thing to do, recognising there has been an anomaly in the situation that has led to our being required to bring in validating legislation, but we have had to face up to that and we will.

The issue that was raised by Mr Rockliff about the direction of the IFS and how I want to take it and how we are working to improve the status of angling in Tasmania, is progressing. I have met with the acting director during the last few days and we are looking at the approaches that we need to take to concentrate on the core activities within the service, and that will allow the service to be forward-looking and sustainable and I am very confident that will be achieved over time.

There has been a lot said about the word that I used in the estimates committee - 'personal'. There is no personal issue. I did not choose my words correctly. What I meant to say was 'privacy'; I was trying to respect people's privacy with regard to the issues that confronted both myself and Greg as a result of my making the decision not to appoint him to the position. I have not sacked him. I have made a decision not to appoint him to the position, and of course there were discussions and those discussions continue with Greg or his representative along the lines of exactly what he wants to do, whether he wants to move on or to revert. I believe I am allowed to keep private the issues associated with that decision from the point of view of myself and Greg.

Ms Putt - All we need to know is whether it was in relation to what you felt about his capability or capacity or whatever in the job, as opposed to any other reason. That is where it seemed off the track, to be talking about personal reasons rather than something relating to how he did or might do the job.

Mr GREEN - I would hate people to construe from what I said in Estimates that I had some personal view of Greg.

Ms Putt - Yes, that is all I was trying to get you to clarify.

Mr GREEN - No, no, not at all. I absolutely place on the record that from a personal point of view there was no personality clash or anything like that. I meant to say 'privacy', respect his privacy, because obviously it is a very difficult time.

Ms Putt - Oh, yes.

Mr GREEN - And overall it was about my confidence in his ability to take the agency forward.

Ms Putt - Okay, that's fine. That's all we needed to hear.

Mr GREEN - And that is why I made the decision, tough as it was.

I thank the House for agreeing to support this legislation. I think this will allow me as minister and the service to continue to put itself in a position where it is even further enhanced from the point of view of its status. People have suggested that from a budgetary point of view the achievements of the Government to this point have been highlighted by the fact that the supplementary funding has basically been made available to the IFS based on a series of reviews over a long period of time that has been a contributing factor in my view to the overall wellbeing of the service in terms of the stability of it and its employees, understanding that we are serious and we are not continually reviewing. Even though the member for Braddon, Mr Rockliff, suggests that it is underfunded, the argument has been that it has been unfunded since 1989 when their funding was slashed and nobody attempted to do anything about it from a recurrent point of view until now. I am quite proud of the fact that we have a recurrent funding source that will allow us to work within our budgetary means.

With regard to the issue of the Salmon Ponds, I was simply talking about whether or not the IFS needs to manage it or whether we might be in a position to lease it, to allow the service to gain return, which will assist in the overall management of the fishery. From the hatchery's point of view, we need to be in a position where we manage the hatchery, as we have always done, because that obviously is part of the core business. I am very confident that we can take the service forward in a progressive way. John Diggle is in the acting position now. As I have said, we have had a very good conversation about where we want to take the service in the future, and over the next couple of months we will be making some decisions about exactly how we do that.

I heard Peg say that you were going to go into Committee, so I assume you are.

Ms Putt - There is just one matter I wanted to follow up, unless you want to address it now. It is the issue of validating Mr McCrossen and not just the activities that he undertook, so that his dismissal is from that position as director of the Inland Fisheries Service with any entitlements that would flow that he would otherwise miss out on. I just wanted to clarify with you the situation in regard to that.

Mr GREEN - If this will satisfy you, what I can say is that because the negotiations with Greg are obviously private I cannot reveal all the details. It is certainly not my intention to have those negotiations based around his substantive position.

Mr Hidding - They'd be based on his contract?

Mr GREEN - Yes.

Mr Hidding - His contract as a director, as though he were a director?

Mr GREEN - Yes. They are not based on his substantive position when he was in the department.

Ms Putt - When he was last permanently a State Service employee?

Mr GREEN - No.

Ms Putt - My understanding was that that was the original apprehension of what was going to happen, which would have led to a massive loss of entitlements, which I thought was unfair.

Mr GREEN - No, that is right. He still has reversion rights from that point of view. But in terms of the negotiations, if he chooses to go, no, that is not back on that.

Mr Booth - So if he doesn't choose to go, my understanding is he gets paid out here. He continues to be employed at the same as his contract now until the contract period runs out and then he goes back.

Mr GREEN - Yes, then he reverts back.

Mr Booth - Will he revert back to 1987 level or will he -

Mr GREEN - It would not be 1987, but his last substantive position - 1999.

Bill read the second time and taken through the remaining stages.

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