Nibbs v Devonport City Council [2015] TASSC 34

Michael Nibbs contended so many different very common Australian pseudo legal themes in this case it is among my favourites, but I suppose the main point is the objection raised regarding judicial oath of office.

Before the Promissory Oaths Act 2015, Magistrates and Justices were required to take and subscribe the judicial oath prescribed by the Promissory Oaths Act 1869. Section 7 required the oath to be tendered by the Clerk of the Executive Council and taken in the presence of the Governor or such specified person as the Governor directed. In Nibbs v Devonport City Council [2015] TASSC 34, Mr. Nibbs produced a copy of a media report of a statement made by the Attorney-General on or around 3 April 2015. The Attorney is reported to have said that the requirement for the judicial oath under the 1869 Act was outdated, “and it was reasonably established that it had not been followed for the past three decades”.

The Court considered whether a Magistrate had authority to hear case if not correctly sworn into office, and also considered the validity of Local Government Act 1993 (Tas). Mr Nibbs asserted that there was no valid Royal Assent as the State Governor had not properly been sworn in. It was held that s 45A of the Constitution Act 1934 (TAS) establishes Local Government in Tasmania; Local Government Act 1993 (TAS) s 120; establishes Devonport Council; s 21 of the Promissory Oaths Act 2015 (Tas) retrospectively validates judicial oaths or affirmations, oaths or affirmations of allegiance and oaths or affirmations of office; Governor and Magistrate had been correctly sworn in under this Act (additionally the judge relied on the presumption of regularity and de facto officer doctrine).

Click to access nibbs-v-devonport-city-council-2015-tassc-34.pdf