JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: KINGSTON and LOCAL GOVERNMENT STANDARDS PANEL [2024] WASAT 85
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
HEARD: DETERMINED ON THE DOCUMENTS FILED ON 19 SEPTEMBER AND 31 OCTOBER 2023 AND 2 FEBRUARY, 28 MARCH AND 19 APRIL 2024
DELIVERED : 20 AUGUST 2024
FILE NO/S: CC 741 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 - Conduct of candidate - Minor breach - Application of clause 18 of the Model Code of Conduct to the candidate's conduct after election to Council - Jurisdictional issue - Implied constitutional freedom of political communication - Whether a matter under s 76(a)(i) of the Constitution - Whether the matter is incapable of legal argument
Legislation:
Commonwealth of Australia Constitution Act 1901 (Cth), s 75, s 76, s 76(i), s 77
Interpretation Act 1984 (WA)
Judiciary Act 1903 (Cth), s 39, s 78B
Local Government (Model Code of Conduct) Regulations 2021 (WA), Sch 1, cl 18
Local Government Act 1995 (WA), s 1.4, s 4, s 5.102A, s 5.103(1), s 5.104, s 5.104(6), s 5.105, s 5.105(1), s 5.105(1)(a), s 5.105(1)(b), s 5.110(6)(b)(ii), s 5.125(1), Pt 4
State Administrative Tribunal Act 2004 (WA), s 29, s 37(1)
Result:
Decision of Local Government Standards Panel set aside and complaint against the applicant dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Self-represented |
| Respondent | : | No appearance |
| Intervenor | : | Ms J Perera |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 400 ALR 1
Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (2001) 203 CLR 645
Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87
McCloy v New South Wales (2015) 257 CLR 178
Mustac v Medical Board of Western Australia [2007] WASCA 128
Palmer v Western Australia [2021] HCA 5; (2021) 272 CLR 505
Treby and Local Government Standards Panel [2010] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Prior to the Local Government elections in 2021, in which the Applicant was a candidate, he made a remark in his campaign material concerning the City of Joondalup (the remark). The Applicant was subsequently elected to the office of councillor on 16 October 2021.
On 29 September 2022 the Local Government Standards Panel (the Panel) determined that, in making the remark, the Applicant had committed a minor breach pursuant to s 5.105 of the Local Government Act 1995 (WA) (LGA) and cl 18 of the model code of conduct in Sch 1 of the Local Government (Model Code of Conduct) Regulations 2021
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- Case
- [2024] WASAT 85
- Decision Date
CaseChat Overview and Summary
The court considered the submissions of both the Applicant and the Intervenor on the jurisdictional issue and found that it had jurisdiction to hear the matter. The court found that the issue raised by the Applicant could be determined through legal argument, and therefore was not incapable of legal argument. The court also found that the Panel had erred in applying the Model Code to the Applicant’s conduct when he was a candidate for election to council, and not a council member. The court found that the Panel’s decision should be quashed on this basis. The court found that the implied freedom of political communication did not prevent the Tribunal from exercising its jurisdiction in this matter.
The court ordered that the Panel’s decision be quashed and that the matter be remitted back to the Panel for reconsideration in light of the court’s findings. The court did not make any orders in relation to the implied freedom of political communication, as it found that the issue was not before it in this case. The court also did not make any orders in relation to the costs of the proceedings, as the Applicant and the Intervenor had agreed to submit to any order the Tribunal saw fit to make except as to costs.
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