KINGSTON and LOCAL GOVERNMENT STANDARDS PANEL
[2025] WASAT 43
•15 MAY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: KINGSTON and LOCAL GOVERNMENT STANDARDS PANEL [2025] WASAT 43
MEMBER: MR D AITKEN, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 15 MAY 2025
FILE NO/S: CC 1449 of 2023
BETWEEN: DANIEL JEFFERY JOHN KINGSTON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Local Government Standards Panel - Jurisdictional issue - Whether the Panel lacked jurisdiction to deal with complaint in light of implied constitutional freedom of political communication - Whether a matter under s 76(i) of the Constitution - Distinction between substantive controversy and jurisdictional controversy in identifying matter arising under the Constitution or involving its interpretation - Whether the jurisdictional issue is incapable on its face of legal argument - Whether the Tribunal has jurisdiction to determine this matter
Legislation:
Commonwealth of Australia Constitution Act 1901 (Cth), s 76(i)
Local Government (Model Code of Conduct) Regulations 2021 (WA), Sch 1, cl 18
Local Government Act 1995 (WA), s 5.102A, s 5.105, s 5.125(1), Pt 5, div 9
State Administrative Tribunal Act 2004 (WA), s 24, s 25(2), s 27(1), s 29(1), s 29(3)(c)(ii), s 31(1), s 37(1)
Result:
Preliminary issue determined
The Tribunal has jurisdiction to determine the matter
Category: B
Representation:
Counsel:
| Applicant | : | Self-represented |
| Respondent | : | Mr C Madondo |
| Intervenor | : | Mr C Madondo |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Cameron v Cole (1944) 68 CLR 571
Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87
Kingston and Local Government Standards Panel [2024] WASAT 85
McCloy v New South Wales (2015) 257 CLR 178
Palmer v The State of Western Australia [2021] HCA 5; (2021) 272 CLR 505
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Wotton v State of Queensland [2012] HCA 2; (2012) 246 CLR 1
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On or about 9 June 2023 Councillor Daniel Jeffery John Kingston (Cr Kingston), a member of the Council of the City of Joondalup (the Council), made certain comments on Facebook (the comments) regarding comments made by another member of the Council and their voting record in respect of a motion before the Council relating to a draft Coastal Hazard Risk Management and Adaption Plan.
A complaint was made to the Local Government Standards Panel (the Panel) regarding the comments (the Complaint).
On 8 August 2023 the Panel found that Cr Kingston had committed a minor breach pursuant to s 5.105 of the Local Government Act 1995 (WA) (LG Act) and cl 18 of the model code of conduct in Sch 1 of the Local Government (Model Code of Conduct) Regulations 2021 (WA) (the Model Code) when he made the comments. Clause 18 of the Model Code prohibits a council member from making improper use of their office to either gain an advantage for themselves, or any other person, or to cause detriment to their local government or any other person.
On 20 November 2023 the Panel decided to order Cr Kingston to make a public apology and undertake the training specified in the order (the Decision).
Cr Kingston has applied to the Tribunal pursuant to s 5.125(1) of the LG Act for review of the Decision (the Review Application). The Tribunal has made an order pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the decision the subject of the Review Application is stayed until further order.
The Attorney General of Western Australia (the Intervenor) has intervened in the proceeding pursuant to s 37(1) of the SAT Act. The State Solicitor's Office represents both the Panel and the Intervenor and has informed the Tribunal that the Panel will confine its participation in the proceeding to providing the documents it is required to provide under s 24 of the SAT Act and that substantive argument in the matter will be presented by the Intervenor.[1]
[1] The State Solicitor's Office says that this approach is in accordance with the principle recognised in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. Also, see Treby v Local Government Standards Panel [2010] WASAT 81 at [16] where the Tribunal stated that it is appropriate for the Panel not to play an active role in review proceedings, having regard to the possibility that the Tribunal may invite the Panel to reconsider the decision (s 31(1) of the SAT Act) or make an order on the review setting aside the decision and sending the matter back to the Panel for reconsideration (s 29(3)(c)(ii) of the SAT Act).
In the applicant's amended statement of issues, facts and contentions which Cr Kingston filed with the Tribunal on 9 October 2024, he added an additional issue (Issue 6) contending that the Panel lacked jurisdiction to either deal with the Complaint, make a finding or apply a sanction in light of the implied freedom of political communication which arises under the Commonwealth of Australia Constitution Act 1901 (Cth) (the Constitution).
By a letter dated 4 November 2024 filed with the Tribunal the Intervenor raised the question of whether, by reason of Issue 6, the matter the subject of the Review Application may be a matter falling within s 76(i) of the Constitution and therefore outside the Tribunal's jurisdiction to determine.
A directions hearing was held on 26 November 2024 at which I made an order that the question of whether the Tribunal has jurisdiction to determine this matter, in light of Issue 6 (Jurisdictional Issue) be determined as a preliminary issue on the documents. I also made orders for Cr Kingston and the Intervenor to file written submissions in relation to the Jurisdictional Issue, which they have done.
Both Cr Kingston and the Intervenor submit that the Tribunal has jurisdiction, although for different reasons. However, I must form my own opinion on the Jurisdictional Issue.
For the following reasons I have determined that the Tribunal has jurisdiction to determine the matter.
Relevant law for determination of the Jurisdictional Issue
The law relevant to the determination of the Jurisdictional Issue was stated by Deputy President Vernon J in Kingston and Local Government Standards Panel [2024] WASAT 85 (Kingston) at [14] to [16] as follows:
14Section 76(a)(i) of the Constitution provides that Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under the Constitution or involving its interpretation. That original jurisdiction is conferred on the High Court by s 30 of the Judiciary Act 1903 (Cth) (Judiciary Act).
15Section 77 of the Constitution provides that Parliament may make laws investing any court of a State with federal jurisdiction. Section 39 of the Judiciary Act has the effect of conferring federal jurisdiction on State courts subject to certain conditions and restrictions: Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 (Burns v Corbett) at [25] and [26] (Kiefel, Bell and Keane JJ).
16It was not in dispute in these proceedings that:
(a)the Tribunal is not a 'court' within the meaning of s 77(iii) of the Constitution (a ch III Court): Mustac v Medical Board of Western Australia [2007] WASCA 128 (Mustac) at [48]. As a consequence, the Tribunal cannot be invested with jurisdiction to determine matters identified in s 75 or s 76 of the Constitution. Relevantly to the Application, this includes matters under s 76(i) of the Constitution being 'matters arising under this Constitution or involving its interpretation': Burns v Corbett [43], [50] (Kiefel CJ, Bell and Keane JJ), [68] - [69], [119] - [120] (Gageler J), [145] - [146] (Nettle J), [150] - [151], [192] - [193] (Gordon J), [203] - [205], [252] - [257] (Edelman J);
(b)the Issue forms part of a single justiciable controversy, or matter, before the Tribunal;
(c)the Tribunal will not have jurisdiction to determine the matter if:
(i)by reason of the Issue being raised, the matter before the Tribunal arises under the Constitution or involves its interpretation within the meaning of s 76(i) of the Constitution; and
(ii)the Tribunal would be exercising judicial power in the determination of the matter; and
(iii)the Issue:
1.is genuinely raised; and
2.is not incapable on its face of legal argument; and
(iv)a matter may be incapable on its face of legal argument if it has no foundation in established legal principle;
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 400 ALR 1 (Citta) at [29] to [35] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); and
(d)the Tribunal has a duty and concomitant authority to ensure that it acts within the limits of its jurisdiction. Accordingly, the Tribunal may form an opinion (rather than a conclusion with legal effect) about the limits of its jurisdiction in order to ensure its conduct accords with the law: Citta at [17], [24], [25] and [28] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). In doing so the Tribunal cannot engage in an assessment of the merits: Citta at [37].
In Kingston the Issue was whether cl 18 of the Model Code should be read down having regard to the implied freedom of political communication in the Constitution.
In this proceeding the statements made in Kingston at [16] are also not in dispute and apply in relation to the determination of the Jurisdictional Issue with 'Issue 6' substituted for 'the Issue' in [16(b)] and [16(c)].
The implied constitutional freedom of political communication
The law regarding the implied constitutional freedom of political communication was summarised by Deputy President Vernon J in Kingston at [38] and [39] as follows:
38In McCloy[2] at [30] French CJ, Kiefel, Bell and Keane JJ said that the implied freedom is not a personal right but was best understood as a constitutional restriction on legislative power.
39In both Palmer[3] and Wotton[4] the High Court held that the constitutional implied freedom applies at the legislative level to determine the validity of the legislation and that the only question remaining for the subsidiary regulations is whether they fall within the valid legislative power: Wotton at [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ); Palmer at [63] - [67] (Kiefel CJ and Keane J), [117] - [120] and [126] ‑ [127] (Gageler J), [200] - [201] (Gordon J) and [224] ‑ [225] (Edelman J).
[2] McCloy v New South Wales (2015) 257 CLR 178.
[3] Palmer v The State of Western Australia [2021] HCA 5; (2021) 272 CLR 505.
[4] Wotton v State of Queensland [2012] HCA 2; (2012) 246 CLR 1.
Submissions
Cr Kingston contends that the implied constitutional freedom of political communication was a relevant consideration when the Panel dealt with the Complaint. He says that, applying the principles in Citta and Burns v Corbett, the Panel lacked jurisdiction to deal with the Complaint and that the Tribunal should dismiss the Complaint for want of jurisdiction.
Cr Kingston says that he does not assert Issue 6 as a claim or defence in response to the Complaint, but that it simply arises from the Complaint. He says that Issue 6 is restricted to the question of the Tribunal having jurisdiction to determine whether the Complaint is 'within the legislated limits of its State jurisdiction'.
Cr Kingston says, correctly, that the Review Application falls within the review jurisdiction of the Tribunal. He then refers to s 29(1) of the SAT Act which provides that the Tribunal, when dealing with a matter in its review jurisdiction, has the functions and discretions corresponding to those exercisable by the decision-maker (in this case, the Panel) in making the decision upon review. Cr Kingston then contends that the Tribunal, like the Panel, does not have the jurisdiction to deal with the Complaint in exercising its review jurisdiction. However, he suggests that the Tribunal does have jurisdiction to set aside the Decision, on the basis that 'a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae[5] to have it set aside'[6].
[5] Latin phrase: as a debt of justice; as a legal obligation … A remedy which the applicant obtains as of right: Encyclopaedic Australian Legal Dictionary Online; LexisNexis Australia.
[6] Citing Cameron v Cole (1944) 68 CLR 571, 590 - 591 in support of this proposition.
The Intervenor submits that the mere assertion that the implied freedom of political communication is relevant to the consideration of the Complaint by the Panel is insufficient of itself to bring the matter within federal jurisdiction such that the Panel, or the Tribunal upon review, could not deal with the Complaint, and that the Tribunal has jurisdiction to deal with the Review Application.
The Intervenor further submits that the Tribunal will have jurisdiction to determine the Review Application whether or not the Decision was validly made by the Panel. The Intervenor says, correctly, that the purpose of the review of the Decision by the Tribunal is not to search for legal or jurisdictional error. Rather, the review is by way of a hearing de novo and is not confined to matters that were before the Panel.[7] The Intervenor says that the question of whether the Panel lacked jurisdiction at the time of the Decision is irrelevant to this proceeding.
[7] Section 27(1) of the SAT Act.
Issues to be determined
To determine the Jurisdictional Issue, I must decide:
(a)By reason of Issue 6 being raised does the matter fall within s 76(i) of the Constitution; namely does the matter arise under the Constitution, or involve its interpretation?
(b)If the answer to (a) is 'yes', would the Tribunal be exercising judicial power in determining the matter?
(c)If the answer to (a) and (b) is 'yes', is Issue 6 genuinely raised and not incapable on its face of legal argument?
Does Issue 6 raise a matter falling within s 76(i) of the Constitution?
In Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87 (Hanssen) at [54] to [62] the Court of Appeal made a distinction between substantive and jurisdictional controversies in identifying a matter arising under the Constitution or involving its interpretation, as follows:
54In this case, it is important to distinguish between substantive controversies which may be the subject of a proceeding in a court or tribunal and jurisdictional controversies concerning the authority of the court or tribunal to determine the substantive matter.
Identifying the 'matter'
55It is established that the references to a 'matter' in ch III of the Constitution are not to a legal proceeding, but rather are to the subject matter for determination in a legal proceeding. A 'matter' is a justiciable controversy, identifiable independently of the proceedings which are brought for its determination, and encompassing all claims made within the scope of the controversy. The conferral of federal jurisdiction in a matter is the conferral of judicial power to determine the whole of the controversy. In Fencott, the plurality noted:
What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
56In Re Wakim, Gummow and Hayne JJ (Gleeson CJ and Gaudron J agreeing) explained that the references in Fencott to 'impression' and 'practical judgment' cannot be understood as stating a test that is to be applied. Their Honours said:
What is a single controversy 'depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'. There is but a single matter if different claims arise out of 'common transactions and facts' or 'a common substratum of facts', notwithstanding that the facts upon which the claims depend 'do not wholly coincide'. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are 'completely disparate', 'completely separate and distinct' or 'distinct and unrelated' are not part of the same matter. (citations omitted)
57The constitutional imperative to identify a 'matter' independently of proceedings for its determination was emphasised by the plurality in Palmer v Ayres:
A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice'. (original emphasis) … It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. (emphasis added) What comprises a 'single justiciable controversy' must be capable of identification, but it is not capable of exhaustive definition. 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'. (citations omitted)
58Similarly, the plurality in Citta Hobart said:
A 'matter' referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated. (citations omitted) (emphasis added)
Substantive and jurisdictional controversies
59As illustrated by the decision in Attorney General (NSW) v Commonwealth Savings Bank of Australia, a controversy about the jurisdiction of a particular forum to adjudicate upon a matter may itself constitute a matter arising under the Constitution. In other cases, an asserted invalidity of a State law may arise for a reason other than a body's lack of authority to adjudicate on the matter. So, for example, in cases such as Citta Hobart, the claimed inoperability of the State law arose under s 109 of the Constitution by reason of alleged inconsistency with a law of the Commonwealth. In cases such as British American Tobacco Australia Ltd v The State of Western Australia, a claim or defence depended on the invalidity of a law under constitutional provisions standing outside ch III of the Constitution.
60In our view, in identifying a matter arising under the Constitution or involving its interpretation, it is necessary to distinguish between:
1.jurisdictional controversies arising under ch III of the Constitution which concern the authority of a court or tribunal to adjudicate on a substantive controversy which is the subject of proceedings before that court or tribunal; and
2.substantive controversies about the validity of a law which do not concern the authority of a court or tribunal to adjudicate on the matter but rather concern the substantive rights, duties and liabilities at issue between the parties.
In either case there will be a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution. In the first class of cases, the matter will arise under s 75 to s 77 of the Constitution or involve the interpretation of those provisions. In the second class of cases, the matter will generally arise under a provision standing outside ch III of the Constitution (s 90 and s 109 in the examples given in [59] above). In the second class of cases, the whole of the substantive controversy which is the subject of the proceedings will generally be characterised as a matter identified in s 76(i) of the Constitution. However, this will generally not be so in the first class of cases.
61A substantive controversy and a jurisdictional controversy will generally constitute separate matters. If it were otherwise, then any genuinely raised claim that the substantive controversy was within federal jurisdiction would, at least where the claim was not incapable on its face of legal argument, necessarily bring the substantive controversy within federal jurisdiction. A genuinely raised claim, not incapable on its face of legal argument, that a matter not otherwise identified in s 75 or s 76 of the Constitution was within federal jurisdiction would be self fulfilling, even if the claim was plainly incorrect.
62Further, the established principle, noted at [54] - [58] above, is that a 'matter' is a justiciable controversy that is not dependent on the commencement of a proceeding in a forum in which the controversy might come to be adjudicated. The question of whether proceedings are commenced in court or before a tribunal which has jurisdiction to adjudicate upon the matter arises only on the commencement of the proceedings in the relevant forum. That counts in favour of generally characterising a controversy about the jurisdiction of the court or tribunal in which proceedings are commenced as distinct from the substantive controversy raised for determination in the proceedings. A jurisdictional controversy does not concern the rights, duties or liabilities at issue in the substantive controversy. Rather, the jurisdictional controversy will generally be concerned only with the forum in which the substantive controversy is to be resolved.
(footnotes, including citations, omitted)
In either the case of a substantive controversy or a jurisdictional controversy there may be a matter arising under the Constitution or involving its interpretation.[8]
[8] Hanssen at [60].
I will examine Issue 6 to consider whether it raises either or both a substantive controversy and/or a jurisdictional controversy which constitutes a matter arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution.
The substantive controversy
A substantive controversy in a matter arising under the Constitution or involving its interpretation is a controversy about the validity of a law which does not concern the authority of a court or tribunal to adjudicate on the matter but rather concerns the substantive rights, duties and liabilities at issue between the parties.[9]
[9] Hanssen at [60].
Cr Kingston does not challenge the validity of Part 5, Division 9 of the LG Act, which provides for the establishment of the Panel, the adoption of the Model Code by local governments and the system for dealing with complaints about minor and serious breaches (as defined in s 5.102A).
As noted at [15] above, the implied constitutional freedom of political communication is a constitutional restriction on legislative power. It is not a personal right, and it does not extend to the consideration of subsidiary regulations (such as the Model Code). In my view, it follows, that it is not a restriction on the exercise of the functions of the Panel in dealing with complaints.
Therefore, in my view, Issue 6 does not give rise to a substantive controversy which could be a matter falling within s 76(i) of the Constitution.
The jurisdictional controversy
A jurisdictional controversy in a matter arising under the Constitution or involving its interpretation is a controversy which concerns the authority of a court or a tribunal to adjudicate on a substantive controversy which is the subject of proceedings before that court or tribunal.[10]
[10] Hanssen at [60].
In my view, the Panel can be likened to a tribunal.
Issue 6 raises a controversy about the jurisdiction of the Panel to deal with the Complaint, and consequently the jurisdiction of the Tribunal to deal with the Complaint in its review jurisdiction, in light of the implied constitutional freedom of political expression.
Therefore, Issue 6 raises a jurisdictional controversy which could be a matter falling within s 76(i) of the Constitution.
Is Issue 6 genuinely raised and not incapable on its face of legal argument?
It is convenient to next address the question of whether Issue 6 is genuinely raised and not incapable on its face of legal argument.
The Intervenor does not dispute that Issue 6 is genuinely raised by Cr Kingston and I accept that Issue 6 is genuinely raised by Cr Kingston.
Issue 6 does not give rise to a substantive controversy which could be a matter falling within s 76(i) of the Constitution.[11]
[11] See [25] – [28] above.
However, Issue 6 raises a jurisdictional controversy which could be a matter falling within s 76(i) of the Constitution.[12]
[12] See [29] – [32] above.
Cr Kingston contends that in the case of the Complaint against him, the implied constitutional freedom of political communication was a relevant consideration for the Panel which therefore deprived the Panel of jurisdiction to deal with the Complaint.
As I have already noted, Cr Kingston does not challenge the validity of the provisions in Part 5, Division 9 of the LG Act.
In this matter there is not a substantive controversy which could be a matter falling within s 76(i) of the Constitution, which would deprive the Panel, and the Tribunal in its review jurisdiction, of the jurisdiction to deal with the Complaint.
Consequently, in my view, the Panel had authority, or jurisdiction, to deal with the Complaint under Part 5, Division 9 of the LG Act.
Accordingly, I have formed the opinion that the jurisdictional controversy raised by Issue 6 is incapable on its face of legal argument.
Is the Tribunal exercising judicial power in determining the matter?
Considering my view that Issue 6 is incapable on its face of legal argument, it is not necessary for me to decide whether the Tribunal upon review is exercising judicial power in determining the matter.
Conclusion
I have decided that Issue 6 does not raise a substantive controversy but does raise a jurisdictional controversy which might constitute a matter arising under the Constitution or involving its interpretation.
However, I have also decided that the jurisdictional controversy, and consequently Issue 6, is incapable on its face of legal argument.
Accordingly, I have formed the opinion that the matter the subject of the Review Application is not, by reason of Issue 6, a matter falling within s 76(i) of the Constitution. Consequently, the Tribunal has jurisdiction to determine the matter.
Orders
I will therefore make the following order:
The Tribunal orders:
1.The preliminary issue is determined as follows: The Tribunal has jurisdiction to determine this matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
15 MAY 2025
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