KINGSTON and LOCAL GOVERNMENT STANDARDS PANEL - [2025] WASAT 43

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASAT 43
Decision Date: 15 MAY 2025

CaseChat Overview and Summary

In Kingston and Local Government Standards Panel, the applicant, Cr Kingston, sought review of a decision made by the Local Government Standards Panel. The Panel had ordered Cr Kingston to make a public apology and undertake specific training. The State Administrative Tribunal (Tribunal) had stayed the decision pending the outcome of the review. The Attorney General of Western Australia intervened in the proceeding, and the State Solicitor's Office represented both the Panel and the Intervenor. The Panel elected not to actively participate in the review proceedings, leaving substantive argument to the Intervenor.

The central legal issue was whether the Tribunal had jurisdiction to determine the matter, specifically in light of Cr Kingston's contention that the Panel lacked jurisdiction due to the implied constitutional freedom of political communication. The Intervenor raised the question of whether the matter fell under section 76(i) of the Constitution, potentially placing it outside the Tribunal's jurisdiction. This issue was to be decided as a preliminary matter based on the written submissions of the parties. Both Cr Kingston and the Intervenor argued that the Tribunal had jurisdiction, albeit for different reasons. The Tribunal had to independently determine the jurisdictional question.

In resolving the jurisdictional issue, the Tribunal found that it had jurisdiction to determine the matter. The Tribunal carefully considered the arguments presented and concluded that the issue did not fall outside its jurisdiction under section 76(i) of the Constitution. The Tribunal's jurisdiction was upheld, allowing the review to proceed on its merits. The decision to stay the Panel's order remained in effect until the Tribunal could further consider the merits of the review application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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