Re v Local Government Standards Panel
[2015] WASC 51
•11 FEBRUARY 2015
RE -v- LOCAL GOVERNMENT STANDARDS PANEL [2015] WASC 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 51 | |
| Case No: | GDA:9/2014 | 21 JANUARY 2015 | |
| Coram: | CORBOY J | 11/02/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ELIZABETH RE LOCAL GOVERNMENT STANDARDS PANEL ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Administrative law State Administrative Tribunal Whether Tribunal had jurisdiction to find a local government council member had committed a minor breach under the Local Government Act 1995 (WA) that was different to the breach alleged in a complaint to the Local Government Standards Panel Local government The jurisdiction of the Local Government Standards Panel under s 5.110 Local Government Act |
Legislation: | Local Government Act 1995 (WA), s 5.110 State Administrative Tribunal Act 2004 (WA), s 29 |
Case References: | Bloomfield v Real Estate & Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138 Tarjali-Diab v NSW Department of Commerce (No 2) [2005] NSWADT 288 The Queen v The Australian Broadcasting Tribunal; Ex parte Hardingham (1980) 144 CLR 13 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE -v- LOCAL GOVERNMENT STANDARDS PANEL [2015] WASC 51 CORAM : CORBOY J HEARD : 21 JANUARY 2015 DELIVERED : 11 FEBRUARY 2015 FILE NO/S : GDA 9 of 2014 BETWEEN : ELIZABETH RE
- Appellant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR P McNAB (SENIOR MEMBER)
Citation : RE and LOCAL GOVERNMENT STANDARDS PANEL [2014] WASAT 111
File No : DR 344 of 2013
Catchwords:
Administrative law - State Administrative Tribunal - Whether Tribunal had jurisdiction to find a local government council member had committed a minor breach under the Local Government Act 1995 (WA) that was different to the breach alleged in a complaint to the Local Government Standards Panel
Local government - The jurisdiction of the Local Government Standards Panel under s 5.110 Local Government Act
Legislation:
Local Government Act 1995 (WA), s 5.110
State Administrative Tribunal Act 2004 (WA), s 29
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr L E James
Respondent : No appearance
Intervenor : Ms C S Bydder
Solicitors:
Appellant : Kott Gunning
Respondent : No appearance
Intervenor : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bloomfield v Real Estate & Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138
Tarjali-Diab v NSW Department of Commerce (No 2) [2005] NSWADT 288
The Queen v The Australian Broadcasting Tribunal; Ex parte Hardingham (1980) 144 CLR 13
- CORBOY J:
The application and the result
1 The appellant, Ms Re is a councillor of the City of Stirling. In February 2012, the then Mayor of the City, Mr Boothman, made a complaint alleging that the appellant had breached reg 7(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (the Regulations). The complaint was referred to the Local Government Standards Panel (the Panel).
2 The Panel found that the appellant had behaved in a disorderly or disruptive manner at a council meeting held on 27 September 2011 (the Council Meeting); that she had made improper use of her office as a councillor by her conduct; that she had caused detriment to the City and to Mr Boothman; and that, consequently, she had contravened reg 7. The Paneldirected that the appellant be publicly censured (see s 5.110(6)(b)(i) of the Local Government Act 1995 (WA) (LGA)).
3 The appellant applied to the State Administrative Tribunal (SAT) for a review of the Panel's decision. The appellant gave evidence at the hearing of her application in which she admitted that her conduct at the Council Meeting had breached the City's standing orders (the Standing Orders). A breach of the orders constitutes a 'minor breach' for the purpose of s 5.105(1)(b) LGA.
4 The Tribunal held that the Panel had erred in finding that the appellant had contravened reg 7. The evidence did not establish that she had intended to cause detriment to the City or any other person by her conduct. Accordingly, a breach of reg 7 had not been established.
5 However, the Tribunal further held that:
(a) the Panel could have amended the complaint to deal with the appellant's conduct as a breach of the Standing Orders and have found that she had committed a minor breach for the purpose of s 5.105 and s 5.110 LGA;
(b) the Tribunal could find that the appellant had committed a minor breach as SAT stood in the shoes of the Panel when exercising its review jurisdiction;
(c) The appellant was guilty of a minor breach for which she should be sanctioned, the appropriate sanction being an apology given publicly at a council meeting.
6 The appellant appealed under s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) from that decision. The appeal notice contained five grounds, but, in essence, the appellant contended that the Tribunal had exceeded its jurisdiction by finding her guilty of a minor breach of the LGA that had not been considered by the Panel and was not the subject of any decision that could by reviewed by SAT.
7 The Panel did not participate in the appeal: see The Queen v The Australian Broadcasting Tribunal; Ex parte Hardingham (1980) 144 CLR 13. The Attorney General intervened in the Tribunal and the appeal so as to provide a contradictor. He conceded that the Tribunal had exceeded its jurisdiction and that leave to appeal should be granted and the appeal allowed. That concession was rightly made for the reasons that follow.
The Tribunal's decision
8 The Tribunal allowed the application for review and made the following further orders:
(a) the Panel's finding that the appellant committed a breach of reg 7(1)(b) of the Regulations is set aside;
(b) in lieu of the Panel's finding there is substituted a finding that the appellant committed a breach of reg 4(2) of the Regulations by breaching the Standing Orders;
(c) in lieu of the Panel's order under s 5.110(6)(b)(i) LGA that the appellant be publically censured, there is substituted an order under s 5.110(6)(b)(ii) LGA that the applicant apologise publically;
(d) the appellant must make the public apology at the ordinary council meeting of the City of Stirling to be held on a date specified and refrain from otherwise commenting during the council meeting on the matters that are the subject of the public apology.
9 That part of the Tribunal's decision allowing the application for review and setting aside the finding made by the Panel that the appellant had contravened reg 7(1)(b) of the Regulations was not in issue. Accordingly, it is not necessary to further consider the Tribunal's reasons on why it held that the Panel had erred in finding that there had been a breach of reg 7.
10 As to the orders substituting a finding that the appellant had breached reg 4(2) of the Regulations, the Tribunal reasoned as follows.
11 First, s 5.110 LGA conferred jurisdiction on the Panel to determine the complaint made by Mr Boothman. In particular, s 5.110(2)(a) required the Panel to 'make a finding as to whether the breach alleged in the complaint occurred' after a complaint had been received under s 5.110(1).
12 Second, s 5.125 LGA provides that:
(1) A party may apply to the State Administrative Tribunal for a review of a decision of a standards panel.
(2) In subsection (1) -
decision means a decision to dismiss a complaint or to make an order.
14 Third, the form of complaint completed by Mr Boothman only identified an alleged breach of reg 7 of the Regulations. However:
[T]he complaint raises, from the outset, a history of alleged breaches of the Standing Orders by Councillor Re: see page 1 of the attachment to the complaint form specifying in the second paragraph specific clauses of the Standing Orders said to have been breached. The complaint goes on to develop this theme in relation to the events of the evening of 27 September 2011, leading to an allegation of detriment to both the complainant and the City and an allegation of conduct on the part of the applicant which 'does not in any way exhibit any of the general principles of behaviour of Council members as outlined in the rules of conduct legislation' [67].
15 Fourth, in Bloomfield v Real Estate & Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138, Barlow DCJ held that once an 'inquiry' into the conduct of an agent had been initiated, the Supervisory Board could investigate any matters that came to its attention that indicated that the person the subject of the inquiry may not have acted consistently with the agents' code of conduct or the requirements of the Real Estate and Business Agents Act 1978 (WA) (the REBA Act). In this instance, the Panel was required by cl 8(6) of sch 5.1 LGA to have regard to the general interest of local government in Western Australia. There was no reason 'in principle why the Panel here, given its functions and purpose, could not have allowed either the complaint form to be, in effect, amended to make such a further and related complaint (on the samefacts) either in substitution or in the alternative, or for the Panel, in any case, to have found, in the alternative or cumulatively, a contravention of a local law as to conduct' [71]. That was especially as the 'underlying substance of the "breach alleged in the complaint" related to or is found in a breach of Standing Orders' [71].
16 Fourth, the Tribunal was empowered by s 29 of the SAT Act to do whatever might have been lawfully done by the Panel in determining the complaint.
17 Fifth, it would have been open to the Panel and it was, accordingly, open to the Tribunal to ‘re-characterise’ the appellant’s conduct and the complaint for the purpose of determining whether she had breached the LGA. The Tribunal referred in that regard to the decision of the New South Wales Administrative Decisions Tribunal in Tarjali-Diab v NSW Department of Commerce (No 2) [2005] NSWADT 288 in which it was said that:
[I]t was also held in [Dee v Commissioner of Police [2003] NSWADT 217] by the Tribunal that, where the facts of the complaint as made to the President of the [Anti-Discrimination Board] could support a different characterisation of the conduct, the Applicant is not bound by the earlier characterisation. Accordingly, if the complaint to the [Anti Discrimination Board] contained, as stated by the Tribunal in Dee's case, 'incidents and harms which could imply' a complaint of discrimination on the ground of disability and/or victimisation, the Tribunal could entertain such a complaint even though it had not been characterised as such and thus could amend the complaint to include such complaints [9].
The grounds of appeal
18 The appeal notice alleged four grounds of appeal that are relevant:
1. That the Senior Member erred in law in finding that it was open to him to substitute a finding that the Applicant committed a breach of Regulation 4(2) of the Local Government (Rules of Conduct) Regulations 2007 (WA), by breaching the City of Stirling's standing orders, without the Applicant being charged with such a breach before the Respondent or before the Senior Member prior to or during the hearing before the Senior Member.
2. That having found that;
(a) the Applicant had not committed a breach of Regulation 7(l)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) with which the Applicant had been charged before the Respondent; and
(b) the application for review had therefore to be allowed and the Respondent's finding of such breach set aside
The Senior Member erred in law in proceeding to consider what other breach the Applicant might have committed and finding that in fact she had committed such other breach.
3. That the Senior Member erred in law in relying on the case of Tarjali-Diab v NSW Department of Commerce (No 2) (2005) NSWADT 288 for his finding that the Senior Member had jurisdiction of his own motion to amend the complaint before the Respondent after the hearing before the Senior Member had closed and without raising with Counsel for the parties the case in question, in that in that case, the Tribunal was considering an application made by a party to amend a complaint, not an amendment unsupported by a party before the Tribunal.
4. That the Senior Member erred in law in finding that the Respondent and the State Administrative Tribunal were not confined to determining whether the breach alleged in the complaint before the Respondent occurred, but had jurisdiction to consider what other breach, if any, could be shown on the evidence before the Respondent to have been committed by the Applicant. The statutory regime governing the proceedings before the Senior Member required the Senior Member to consider only as to whether the finding by the Respondent that the Applicant had committed the breach alleged in the complaint could be sustained or not.
19 The grounds plainly raise questions of law on the Tribunal decision. The intervenor did not contend to the contrary.
The parties' submissions
20 The appellant adopted submissions that had been made by the intervener to the Tribunal on why it lacked the power to find that the appellant had breached reg 4(2) on setting aside the Panel's decision. Consequently, there was, in effect, one set of submissions by the parties on why it was contended that the Tribunal had erred and the appeal should be allowed. In summary, it was submitted that:
(a) Neither s 5.110 LGA nor s 29 SAT Act permitted SAT to make a finding or order that could not have been made by the Panel.
(b) The powers conferred on the Panel were prescribed by s 5.110 LGA. The focus of the complaint to the Panel must be on one or more specific minor breaches that had been alleged. In particular, a person could only make a complaint if he or she 'has reason to believe that a council member has committed a minor breach' (s 5.107(1)); a complaint must give details of 'the contravention that is alleged to have resulted in the breach' (s 5.107(2)(c)) and the Panel is required to make a finding 'as to whether the breach alleged in the complaint occurred' (s 5.110(2)(a)).
(c) The Panel's role is specified by s 5.110(2) LGA. The Panel may either make a finding as to whether the breach alleged in the complaint occurred or it may send the complaint to the departmental CEO under s 5.111. The LGA prescribes a procedure and confers powers for the purpose of dealing with a complaint.
(d) At the time that Bloomfield was decided, the Real Estate & Business Agents Supervisory Board was responsible for administering the scheme of licencing and registration established under the REBA Act. The Registrar of the Board was empowered to make any investigation or inquiry that he or she considered necessary or expedient for a range of purposes, including determining whether licenced persons were complying with the requirements of the REBA Act. The Board could inquire into the conduct of a licensed person on an application by the Registrar or any other person.
(e) The Panel, and on review the Tribunal, was not entrusted with the regulation and supervision of Council members. Further, neither the Panel nor the Tribunal had been empowered to undertake investigations and conduct inquiries of the kind that had been at one time entrusted to the Supervisory Board under the REBA Act.
The limits on the Panel's powers and SAT's jurisdiction
21 Part 5 div 9 of the LGA concerns the conduct of councillors and other local government officers and employees. Section 5.105 defines what constitutes a minor breach for the purpose of div 9. Section 5.107 permits a person, who has reason to believe that a council member has committed a minor breach, to send a complaint to a complaints officer. Section 5.107(2) stipulates what information must be provided to the complaints officer. The required information includes details of 'the contravention that is alleged to have resulted in the breach'.
22 The complaints officer is obliged to deal with the complaint according to the provisions of s 107(3). Section 5.107(3)(c) enables the complaints officer to send 'the complaint' and 'anything the complaints officer has that is relevant to the complaint' to the Panel. There is otherwise no express power conferred on the Panel to seek or receive evidence.
23 Section 5.110 provides for how the Panel is to deal with any complaint that it receives. In particular, the Panel is required by s 5.110(2) to either make a finding as to whether 'the breach alleged in the complaint occurred' or send the complaint to the Departmental CEO. Further, the Panel is obliged by s 5.110(4) to give notice of the reasons for 'any finding it makes under s 110(2)'. Section 5.110(6) then empowers the Panel to dismiss the complaint or to make various orders in respect of the 'person against whom the complaint was made'. Consequently:
(a) as the appellant and the intervenor submitted, the jurisdiction of the Panel is defined by reference to the 'complaint' that it receives;
(b) more particularly, the complainant is required to give in the complaint details of the contravention that is alleged to have resulted in the breach and the Panel is required to make a finding about whether 'the breach alleged in the complaint occurred'.
24 The Panel does not possess powers of investigation, nor does it have a general supervisory role over council members. Where the Panel decides not to refer a complaint to the Departmental CEO, its functions and powers are constrained by s 5.110(2) to making a finding on whether the breach alleged in the complaint occurred and imposing an appropriate sanction. The Panel's jurisdiction is not more broadly defined; for example, by provisions enabling it to inquire into the subject matter of the complaint or to determine whether any minor breach has occurred in relation to the complaint. Accordingly, the Panel did not have power to 're-characterise' the complaint or the appellant's conduct so as to make a finding that a different minor breach occurred to that alleged in the complaint.
25 That is a conclusion reached on a proper construction of s 5.110. The decisions Bloomfield and Tarjali-Diab concern different statutory schemes and are not, in my view, relevant to the construction of div 9 LGA or illustrative of the way in which the Panel could exercise the powers conferred by s 5.110.
26 As Barlow DCJ observed in Bloomfield, the provisions of the REBA Act then in force allowed for the regulation and supervision of real estate and business agents through a supervisory board. The Act authorised the Registrar and the Board to hold inquiries into whether an agent had been acting in conformity with a code of conduct prescribed and published from time to time by the Board. In conducting an inquiry, the Board could inform itself as it thought fit. As has been noted, Barlow DCJ concluded that the Board could investigate any matter that suggested that an agent had not complied with the code once an inquiry into the conduct of an agent had been commenced. However, his Honour stressed that he had reached that conclusion having regard to 'the nature and function of the Board, namely the regulation and supervision of persons acting in respect of real estate transactions and certain business transactions' (145).
27 The Panel's functions and powers are not regulatory or supervisory in the broad sense to which Barlow DCJ referred in Bloomfield; as has been explained, its functions and powers are much more constrained.
28 The applicant in Tarjali-Diab complained to the Anti-Discrimination Board (ADB) that he had been discriminated against in employment on the ground of race. The complaint was referred to the NSWADT. The applicant sought to contend in the Tribunal that the conduct about which he had complained also constituted discrimination on the grounds of disability and victimisation. The Tribunal allowed the applicant to amend his complaint to allege those additional grounds for the reasons given in the passage earlier cited. In doing so, the Tribunal relied on its decision in Dee.
29 The Tribunal explained in Dee that:
The Tribunal receives its jurisdiction from the complaint referred to it by the Board under s.94(1). The Tribunal cannot consider complaints that go beyond the parameters of the original complaint contained in the Presidents Report. The initial complaint must allege a contravention of the Anti-Discrimination Act 1977 but 'it need not allege the relevant facts with the particularity of an indictment or pleading'. (Langley v Niland [1981] NSWLR 104 at 107). Particularly where Applicants are unrepresented, the Tribunal can allow the Applicant to pursue complaints that are articulated in the complaint to the Anti-Discrimination Board even if the specific breach of the section of the Act breached are not identified.
This requires the Tribunal to consider the ambit of the allegations made by the Applicant within the President's report to form a view as to whether there is reference to a complaint that can be seen to constitute a breach of the Act even though the Applicant may not have specified the section breached [6] - [7].
30 The requirements for a valid complaint to the ADB are, accordingly, materially different to requirements imposed by s 5.110 LGA. Further, the statutory scheme of the Anti-Discrimination Act 1977 (NSW) is very different to div 9 LGA. In particular, the President of the ADB has an investigative function in relation to complaints: s 90 of the Anti-Discrimination Act. Consequently, it is not surprising that the requirements for a valid complaint were broadly stated. Nevertheless, as the NSWADT observed in Tarjali-Diab, the powers of the ADB and the Tribunal were confined by the 'parameters' of the complaint received.
31 Grounds 1 and 3 of the notice of appeal raised procedural and related issues concerning the proceedings in SAT. It is not necessary to further consider those issues to determine this appeal.
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