KINGSTON and LOCAL GOVERNMENT STANDARDS PANEL
[2024] WASAT 85
•20 AUGUST 2024
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
Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1
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 (WA) (the Model Code).
On 26 April 2023 the Panel decided to order the Applicant to make a public apology pursuant to s 5.110(6)(b)(ii) of the LGA in the terms set out in the order (Decision).
On 24 May 2023 the Applicant applied to the Tribunal pursuant to s 5.125(1) of the LGA for review of the Decision (the Application).
In a document filed with the Application titled 'Applicant's Issues, Facts and Contentions' (Applicant's Statement) the Applicant identified the following issue in the proceedings (Issue):
Whether [cl 18 of the Model Code] should be read down, either in whole or in part (and if in part to what extent) having regard to the implied freedom of political communication in the Commonwealth of Australia Constitution Act 1901 (the Commonwealth Constitution).
By letter dated 1 June 2024 from the State Solicitor's Office representing both the Respondent and the Intervenor:
(a)the respondent stated its intention to submit to any order the Tribunal saw fit to make except as to costs; and
(b)the Intervenor intervened in the proceedings as of right pursuant to s 37(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Intervenor subsequently raised the question of whether the matter the subject of the Application may, by reason of the Issue, be a matter arising under s 76(i) of the Commonwealth of Australia Constitution Act (Cth) (Constitution), and therefore outside the Tribunal's jurisdiction to determine. Orders were made that the Intervenor and the Applicant file written submissions on that issue and submissions were filed by the Intervenor on 19 September 2023 and by the Applicant on 31 October 2023.
On 9 November 2023, the Tribunal ordered that the question of whether the Tribunal lacked jurisdiction to deal with the Application due to the Issue be listed for hearing. Orders were also made for the filing of further written submissions by the Intervenor and the Applicant.
On 11 January 2024, the jurisdiction issue was listed for hearing on 13 March 2024. On 2 February 2024, the Intervenor filed further submissions in relation to that issue.
At a further directions' hearing on 29 February 2024, the Applicant sought additional time to file submissions and to vacate the hearing. The Applicant and the Intervenor agreed that the jurisdictional issue could be determined on the papers after further submissions were filed. As a result, I vacated the hearing on 13 March 2024 and ordered that the Applicant file further submissions by 28 March 2024, and that the Intervenor have until 19 April 2024 to file further responsive submissions. Submissions were filed in accordance with those orders.
Both the Applicant and the Intervenor submit that the Tribunal has jurisdiction, although for different reasons. However, I must form my own opinion about that issue.
The Applicant and the Intervenor also agree that the Panel erred in applying cl 18 of the Model Code to the Applicant's conduct at a time when he was a candidate for election to council and not a council member. The Applicant and the Intervenor have agreed that I should also determine whether the Panel's decision should be quashed on this basis, if I determine that the Tribunal has jurisdiction.
For the reasons that follow I have determined that:
(a)the Tribunal has jurisdiction to determine the matter;
(b)the Panel erred in applying cl 18 to the Applicant's conduct as a candidate;
(c)the Applicant did not breach cl 18 of the Model Code; and
(d)accordingly, the Panel's decision on 24 April 2023 to sanction the Applicant should be quashed.
Jurisdictional issue
Section 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).
Section 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).
It 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].
The Intervenor concedes that the Issue was genuinely raised. In my view this concession is properly made, particularly given that the Applicant will not be able to proceed with his application to review a decision that the Intervenor has conceded was in error if the Tribunal is found to be without jurisdiction.
Submissions
As has been said, both the Applicant and the Intervenor submit that the Tribunal has jurisdiction although for different reasons.
The Applicant submits, in summary, that:
(a)no 'matter' arises under the Constitution or involving its interpretation by reason of the Issue because the Applicant does not seek to dispute the existence of the implied constitutional freedom of political communication (implied freedom) or to argue that cl 18 is invalid by reason of the implied freedom. Rather, the Applicant says that he seeks only to argue that, in interpreting cl 18, the Panel was required take the implied freedom into account; and
(b)the Tribunal does not exercise judicial power when reviewing the decision of the Panel in the Tribunal's review jurisdiction but rather exercises administrative power.
In support of the second of these submissions, the Applicant submits that, pursuant to s 29 of the SAT Act, the Tribunal exercises the same functions and powers as the Panel. Although the Applicant acknowledges that the power exercised by the Panel, and therefore the Tribunal, has many of the features of judicial power, the Applicant submits that power is not judicial. The Applicant relies, in particular, on the submission that the Panel's orders are not binding or conclusive between the parties, in light of the decisions in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 and Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (2001) 203 CLR 645 at 658.
The Intervenor submits that the invocation of the implied freedom and whether it invalidates or limits the operation of State legislation is a matter arising under s 76(i) of the Constitution.
The Intervenor submits that the Issue is incapable of legal argument because it is contrary to binding legal precedent.
The Intervenor submits that the High Court in Palmer v Western Australia [2021] HCA 5; (2021) 272 CLR 505 (Palmer) and Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 (Wotton) has determined that questions of constitutional validity must focus on the statute which authorises the subsidiary legislation, not the subsidiary provision itself, and that the only question which can be asked in relation to subsidiary legislation is whether it is validly authorised by the provisions of the statute under which the subsidiary legislation is made, which is not a constitutional question.
The Intervenor says in light of this binding authority the Issue is not capable of legal argument and, therefore, the Tribunal has jurisdiction to determine the matter.
Issues to be determined
In light of the above, the issues for me to determine are:
(a)does the Application raise a matter falling within s 76(i) of the Constitution, in particular, a matter arising under the Constitution, or involving its interpretation;
(b)if the answer to (a) is 'yes', is the Tribunal exercising judicial power in determining the matter;
(c)if the answer to (a) and (b) are 'yes', is the Issue incapable of legal argument.
Does the Application raise a 'matter' falling within s 76(i) of the Constitution
It was held by the majority in Citta at [31] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) that:
(a)a 'matter' in s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependant on the commencement of a proceeding in the forum on which the controversy might come to be adjudicated; and
(b)a justiciable controversy is a matter 'arising under' the Constitution where a party asserts the invalidity or inoperability of a State law in reliance on the Constitution.
In Citta at [31] the majority said that a matter arises under the Constitution where the inoperability, as well as the invalidity, of a law is asserted in the course of the controversy.
The Court of Appeal in Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87, at [107] said:
Senior counsel for Hanssen ultimately accepted that, on Hanssen's submission, the Act is not invalid but rather is to be read down to avoid inconsistency with ch III of the Constitution. This is not fatal to Hanssen's argument that the substantive matter arises under the Constitution or its interpretation. A matter will involve the interpretation of the Constitution if the interpretation of a constitutional provision is essential to the interpretation of a statute. (footnotes omitted)
Accordingly, to the extent that by raising the Issue the Applicant asks the Tribunal to interpret cl 18 with regard to the implied freedom or asks the Tribunal to find cl 18 is inoperable (or to be 'disapplied') in certain circumstances, I consider that it does raise a matter of the interpretation of the Constitution.
Even if I am wrong about that, the Issue as stated includes whether cl 18 should be wholly 'read down', which would have the result that cl 18 would have no operation. In my view, this is, in effect, a challenge to the validity of the clause.
The Applicant refers to the decision in Treby and Local Government Standards Panel [2010] WASAT 81 (Treby) as authority for the proposition that the Issue does not raise a matter within the meaning of s 76(i) of the Constitution. In that case, the Applicant had expressly confirmed that he did not seek to advance a submission that the regulation the subject of that decision was invalid or challenge the existence or scope of the implied freedom. In the circumstances, the Tribunal constituted by Pritchard J, accepted the Intervenor's submission that it was not necessary to ensure compliance with s 78B of the Judiciary Act, which requires notice of proceedings involving a matter arising under the Constitution or involving its interpretation, to be given to the Attorneys General of the Commonwealth and States. The Applicant submits that it can be inferred that Pritchard J accepted that the statutory construction of the regulation with reference to the implied freedom did not involve a matter arising under the Constitution or involving its interpretation.
With respect to that submission:
(a)the issue of the Tribunal's jurisdiction to determine the matter was not raised, argued, or considered in Treby; and
(b)Treby was determined before the decisions of Burns v Corbett and Citta in 2018 and 2022 respectively, where the Tribunal's lack of jurisdiction to deal with matters under s 76(i) when exercising judicial power was determined.
As was noted in the Intervenor's submissions, in support of his position on the Issue in the Applicant's Statement, the Applicant relied on the 'structured proportionality test' articulated by the High Court in McCloy v New South Wales (2015) 257 CLR 178 (McCloy). Whilst the Applicant says, in effect, that this reference does not mean that the Applicant seeks a reconsideration of whether cl 18 remains constitutionally sound, the structured proportionality test is a means of analysing legislation to determine its constitutional validity. In my view, this supports the conclusion that the Applicant does, in reality, seek to challenge the validity of cl 18.
Accordingly, in my view the effect of raising the Issue is that the substantive matter before the Tribunal arises under the Constitution or involves its interpretation.
Is the matter raised by the issue incapable of legal argument
It is convenient to next address the issue of whether the Issue is incapable of legal argument.
In my view, the Intervenor is correct in his submission that the Issue is incapable of legal argument.
The Tribunal is required to apply the law as enunciated by any court in the appellate structure above the Tribunal including the High Court: Mustac at [48].
In McCloy 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.
In both Palmer and Wotton 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).
In Wotton at [22] to [24] the plurality (French CJ, Gummow, Hayne, Crennan and Bell JJ) said:
[22]The Commonwealth submitted that: (i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation on legislative power; (ii) whether a particular application of the statute, by exercise or refusal to exercise a discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather the question is whether the repository of the power has complied with the statutory limits; (iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power. These submissions, which were supported by Victoria, should be accepted.
[23]The Commonwealth further, and correctly, developed these points by emphasising in oral submissions that if the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon the legislative power, then the legislation conferring that power or discretion is effective in those terms. No question arises of severance or reading down of the legislation. There then would be no occasion presented for the application of the principle explained as follows by Dixon J in Shrimpton v The Commonwealth:
[F]inality, in the sense of complete freedom from legal control, is a quality which cannot, I think, be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power form which the law or regulation conferring the discretion derives its force. An exercise of a power, whether legislative or administrative, cannot rise higher than its source, viz., the power itself, and an attempt under the power to make unexaminable what is done in ostensible pursuance of a further delegation of authority must, to that extent, fail.
[24]Accordingly, this litigation turns upon the restraint imposed by the Constitution upon the legislative power of the Queensland legislature. It is no part of this dispute to canvass any question whether conditions (t) and (v) of the Parole Order should not have been included. That would be for agitation in other proceedings, in particular, proceedings under the Judicial Review Act.
Edelman J said, in Palmer, at [224] and [225], that:
[224]There are two premises underlying the answer given by this Court. The first, as the State of Victoria correctly submitted is that constitutional validity should be determined at the level of the empowering statute, leaving questions concerning the validity of action taken under the statute, including regulations, directions and administrative action, to be resolved by reference to whether the valid statute empowers that action.
[225]The need to adjudicate questions of validity at the level of an empowering statute arises irrespective of whether the action under the statute is administrative action or delegated legislation. Hence, contrary to the plaintiff's submissions, an analysis of the validity of the action under the statute does not depend on fine distinctions arising under s. 41 of the Interpretation Act 1984 (WA) between 'subsidiary legislation' and 'administrative action. Just as the "first duty of any Court, in approaching a cause before it, is to consider its jurisdiction", the starting point of an assessment of the validity of any administrative action or delegated legislation is the source of authority for that administrative or legislative act. If the administrative or legislative act has a valid source of authority then the question is generally whether the act falls within that source or is ultra vires.
The Applicant does not challenge the validity of the LGA. To the extent that he does challenge the validity of the Model Code and, in particular, cl 18, in reliance on the implied freedom, in my opinion, on the authority of Palmer and Wotton, that is not capable of legal argument.
As I have said, the Applicant denies that the Applicant has raised any matter arising under the Constitution or involving its interpretation and says that the authorities provide that the implied freedom may be a relevant consideration in the exercise of discretion. However, in the event that I was to find that implied freedom was relied on to challenge the validity of cl 18, as I understood it, the Applicant also submitted that what he described as the 'legislation-centric approach' to the application of the implied freedom articulated in Wotton and Palmer was not conclusive, and therefore not incapable of legal argument. In making this submission, the Applicant relied on an academic paper, J Boughey and A Carter, Constitutional Freedoms and Statutory Executive Powers, (2022) Melbourne University Law Review Vol 45(3). However, as is clear from the conclusion of that paper, the writers do not dispute that the High Court has determined the matter in the way referred to, saying that the Court's approach was 'to review the statutory provision which confers discretion for constitutional validity, but to make no further inquiries about the exercise of discretion in the particular case'. The paper does express some opinions about that approach. However, as I have said, I am bound by the current state of the law as articulated by the High Court.
Accordingly, I have formed the opinion that the matter raised by the Issue is incapable of legal argument. Accordingly, the Tribunal has jurisdiction.
Is the Tribunal exercising judicial power in determining the matter?
Given my view that the Issue is incapable of legal argument, it is not necessary to determine whether the Tribunal upon review is exercising administrative or judicial power. The Intervenor indicated a desire to make further submissions on this point if I were to decide that the Issue was not unarguable. Accordingly, whilst I am inclined to the view that, in determining the matter, the Tribunal would be exercising judicial power, I have formed no conclusion in relation to that question.
Application of Clause 18 of the Model Code
Having found that the Tribunal has jurisdiction, I now turn to the additional question the parties have agreed I may also determine on the papers, namely whether the Panel misapplied cl 18 to the Applicant's conduct at a time he was a candidate and not a council member.
There is no dispute in this case that:
(a)the Applicant was a candidate for election as a councillor in the 2021 Ordinary Government Election held under Pt 4 of the LGA. He was elected to the office of councillor on 16 October 2021;
(b)a 'councillor' is a 'council member': s 4 of the LGA;
(c)the Panel found that the Applicant had committed a minor breach by contravening cl 18 of the Model Code that had occurred when he was a candidate for office and before he became an elected council member.
Section 5.105(1) and s 5.105(1A) of the LGA provide as follows:
(1)A council member commits a minor breach if the council member —
(a)contravenes a rule of conduct; or
(b)contravenes a local law under this Act, contravention of which the regulations specify to be a minor breach.
(1A)Subsection (1) extends to the contravention of a rule of conduct that occurred when the council member was a candidate.
The term 'rule of conduct' is defined in s 5.102A as a provision of the model code that is specified in the model code to be a rule of conduct. The term 'model code' means the model code prescribed for the purposes of s 5.103(1): that is, the Model Code.
Section 5.104 of the LGA provides, in effect, that local governments must prepare and adopt a code of conduct that incorporates the Model Code and that until they do so the Model Code is taken to be the local government's adopted code of conduct. There is no dispute that the Model Code applies in this case.
Section 5.104(6) of the LGA provides, in effect, that an alleged breach of the Model Code by a candidate cannot be dealt with under Div 9 of the LGA (being the division under which the Applicant was dealt with) unless the candidate has been elected as a council member.
The effect of s 5.105(1)(a) and (1A) is that a candidate who is subsequently elected as a council member may be found to have committed a minor breach if that person is found to have contravened a provision of the Model Code when the council member was a candidate.
Clause 18 of the Model Code provides as follows:
A council member must not make improper use of their office –
(a)to gain, directly or indirectly, an advantage for the council member or any other person; or
(b)to cause detriment to the local government or any other person.
It appears that the Panel relied on s 5.105(1A) to enable it to apply cl 18 to the Applicant's conduct as candidate when he subsequently became a council member.
For the following reasons, however, in my view, cl 18 can only apply to a person who was an elected council member at the time the conduct relied on to constitute the breach of cl 18 occurred.
Clause 18 expressly refers to council members and not candidates.
The term 'office' is not defined in the Model Code. However, a councillor (that is a council member) is defined as a person who holds 'the office of a councillor': s 1.4 of the LGA. The term 'candidate' is relevantly defined to mean 'a candidate for election as a council member': s 5.102A of the LGA. In other words, a candidate does not hold office, but seeks election to office. Merely standing as a candidate is not an office.
Where the complained of conduct occurs before the candidate has been elected to office as a council member, that candidate has no 'office' to make 'improper use of' at the time of the conduct said to constitute the breach.
There are numerous separate references in the Model Code to the conduct of council members, committee members or candidates which reinforce the limit of the interpretation of the words 'a council member' in cl 18 to people holding office as a council member at the time of the conduct alleged to constitute the breach, and not including a person who was merely a candidate for such office at that time.
Those clauses which refer to 'council members' alone, or 'council members and committee members' identify standards of behaviour, or proscribe behaviour, in the conduct of activities and duties associated with office, which would be inapplicable to candidates who do not yet hold office.
In my view, by s 5.105(1)(b) of the LGA, the consequence of election as a council member is that the candidate becomes liable to punishment for breaches of such of the provisions of the Model Code as are specified to be applicable to candidates. Unless expressly stated that section does not extend the scope of the provisions of the Model Code that are applicable to council members to candidates.
However, even if the scope was so extended to enable the Panel to apply a rule stated to apply to council members to candidates, a candidate still does not hold an 'office' before election and, accordingly, their conduct before election cannot contravene the prohibition not to make 'improper use of their office' under cl 18. Section 5.105(1)(b) of the LGA cannot operate to change that temporal reality.
The fact that the Applicant did not hold the office of a 'council member' at the time of the conduct alleged to constitute the alleged minor breach is not altered by his subsequent election as a councillor. The Applicant could not make improper use of an office that he did not hold at the time of the relevant conduct.
Accordingly, I find that the Panel was in error in applying cl 18 to the Applicant's conduct and, consequently, in error in finding he had committed a minor breach and imposing a sanction.
The correct and preferable decision
I find that the correct and preferable decision is that cl 18 does not apply to the Applicant at the time of the alleged breach of that clause and that, accordingly, the Applicant could not and did not commit a minor breach of cl 18 of the Model Code.
Accordingly, I order that the Panel's decision made on 26 April 2023 be set aside and be substituted by decision that the Applicant did not commit the minor breach alleged and that the complaint against him be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GH
Associate to Deputy President Judge Vernon
20 AUGUST 2024
8
6