McClelland v Attorney General (WA)

[2009] WASC 345

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   McCLELLAND -v- ATTORNEY GENERAL (WA) [2009] WASC 345

CORAM:   McKECHNIE J

HEARD:   19 OCTOBER 2009

DELIVERED          :   24 NOVEMBER 2009

FILE NO/S:   CIV 2538 of 2009

BETWEEN:   IAN McCLELLAND

Plaintiff

AND

ATTORNEY GENERAL (WA)
Defendant

Catchwords:

Justice of the Peace - Spent conviction - Recommendation to remove - Whether Minister acting unlawfully - Removal made - Utility of order

Legislation:

Spent Convictions Act 1988 (WA), s 22

Result:

Application refused

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Ms C J Thatcher

Solicitors:

Plaintiff:     In person

Defendant:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

McKECHNIE J: 

What this case is about

1. After years of public service Mr McClelland did a silly thing and breached the Local Government Act 1995 (WA).  The magistrate was prepared to forgive this lapse with a spent conviction order.  The Attorney General is less forgiving.  He wrote to Mr McClelland and asked him to resign his position as Justice of the Peace.  Mr McClelland refused.  He enlisted the support of others.  The Attorney remained unmoved.  He told Mr McClelland he would ask the Governor to revoke Mr McClelland's commission.

2. Mr McClelland sought an injunction to prevent this happening.  But it was too late.  The Governor terminated the appointment in September 2009.  There is nothing left to enjoin.  Still I will deal with Mr McClelland's main point as, in the right circumstances, a declaration can be made.  It does not help him though. 

The Spent Convictions Act 1988 (WA) does not apply

1. Mr McClelland argues that the Attorney General acted unlawfully in advising the Governor.  He relies on the Spent Convictions Act 1988 (WA) s 22. The Spent Convictions Act is a misnomer. A conviction is not spent. Its effect may be limited. A spent conviction can prevent some discrimination. Under s 22 it is unlawful to discriminate against a person for carrying on a trade, profession or occupation if they have a spent conviction. The remedy is to lodge a complaint under the Equal Opportunity Act 1984 (WA) s 24.

2. But Mr McClelland does not fit under s 22. The office of JP is an honorary office held at pleasure. It is not an occupation. It is not a trade or profession. Although some study may be involved, that does not make the office an occupation. Provided the Attorney General gives a JP procedural fairness (not in issue here) he can lawfully recommend that the Governor terminate an appointment.

3. The Spent Convictions Act sch 3(2) provides an exception to a spent conviction when a person is being considered for appointment as a JP. The schedule does not need to include a separate heading for JP's once they have been appointed. The Governor can terminate their appointment: Justices of the Peace Act2004 (WA) s 14. The inclusion of a prospective JP in the schedule though shows Parliament's intention. A spent conviction is relevant to appointment. It must also be relevant to termination.

4. Mr McClelland's application for an injunction must be refused.  There is no basis to make a declaration because the Attorney General has acted lawfully.