KINGSTON and LOCAL GOVERNMENT STANDARDS PANEL - [2024] WASAT 85

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

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: [2024] WASAT 85
Decision Date: 20 AUGUST 2024

CaseChat Overview and Summary

The parties to this case were the Applicant, who was a candidate for election to council and later a member of the council, the Local Government Standards Panel, and an Intervenor who was a council member. The dispute arose from a decision by the Panel to order the Applicant to make a public apology. The Applicant applied to the Tribunal for review of the Panel’s decision, raising the issue of whether a certain clause of the Model Code of Conduct should be interpreted in light of the implied freedom of political communication. The Intervenor intervened in the proceedings and raised the jurisdictional issue of whether the matter was under the Commonwealth’s jurisdiction due to the implied freedom of political communication. The court was required to decide whether it had jurisdiction to hear the matter and whether the Panel had correctly applied the Model Code of Conduct to the Applicant’s conduct. The court also needed to consider whether the Panel’s decision should be quashed if it was found that the Panel had incorrectly applied the Model Code.

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.

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 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.

Ratio Decidendi

Legal Principle Established

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