The City of Subiaco v Simpson MLA
[2014] WASC 493
•23 DECEMBER 2014
THE CITY OF SUBIACO -v- SIMPSON MLA [2014] WASC 493
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 493 | |
| 23/12/2014 | |||
| Case No: | CIV:1923/2014 | 25 NOVEMBER 2014 | |
| Coram: | MARTIN CJ | 25/11/14 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | THE CITY OF SUBIACO THE CITY OF SOUTH PERTH THE SHIRE OF SERPENTINE JARRAHDALE ANTHONY JAMES SIMPSON MLA THE LOCAL GOVERNMENT ADVISORY BOARD |
Catchwords: | Administrative law Injunctive and declaratory relief Local government reform Amalgamation and boundary changes Validity of proposals by local governments Administrative law Procedural fairness Reasonable apprehension of bias by Local Government Advisory Board Degree of partiality required |
Legislation: | Local Government Act 1995 (WA), s 1.3, s 2.1, s 2.5, s 2.44, s 2.45, sch 2.1, sch 2.2, sch 2.5 |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493 Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561 Griffith v Tang [2005] HCA 7; (2005) 221 CLR 99 John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400 R v Brown [1996] 1 AC 543 Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 128 Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- THE CITY OF SOUTH PERTH
THE SHIRE OF SERPENTINE JARRAHDALE
Applicants
AND
ANTHONY JAMES SIMPSON MLA
THE LOCAL GOVERNMENT ADVISORY BOARD
Respondents
Catchwords:
Administrative law - Injunctive and declaratory relief - Local government reform - Amalgamation and boundary changes - Validity of proposals by local governments
Administrative law - Procedural fairness - Reasonable apprehension of bias by Local Government Advisory Board - Degree of partiality required
Legislation:
Local Government Act 1995 (WA), s 1.3, s 2.1, s 2.5, s 2.44, s 2.45, sch 2.1, sch 2.2, sch 2.5
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicants : Mr C P Shanahan SC & Mr N J Landis
Respondents : Mr C S Bydder
Solicitors:
Applicants : Hammond Legal
Respondents : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493
Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561
Griffith v Tang [2005] HCA 7; (2005) 221 CLR 99
John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400
R v Brown [1996] 1 AC 543
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 128
Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296
- MARTIN CJ: (This judgment was delivered extemporaneously on 25 November 2014 and has been edited from the transcript.)
1 The applicants in these proceedings for judicial review are the City of Subiaco, the City of South Perth, and the Shire of Serpentine Jarrahdale, each of whom are local governments created by the Local Government Act 1995 (WA) (the Act). The respondents to these proceedings are the Minister responsible for the administration of the Act and the Local Government Advisory Board (the Board), which is constituted by s 2.44 of the Act. The Board has filed a submitting appearance and has not actively participated in these proceedings.
2 The relief sought in the proceedings is declaratory and injunctive. As the proceedings were instituted, they were concerned with three things:
(a) the validity of proposals made by the Minister to the Board, which in combination would have had the effect of significantly reducing the number of local government districts within the metropolitan area of Perth by a process of abolition of some districts, amalgamation of others and boundary changes;
(b) the validity of proposals made by various local governments for boundary changes which preceded the Minister's proposals; and
(c) the validity of the actions taken by the Board in response to those proposals, and in particular whether its actions were vitiated by a denial of procedural fairness in that there was a reasonable apprehension of bias with respect to one or more members of the Board.
3 However, the first issue has fallen away because, for reasons that I will explain, the grounds relating to that issue were abandoned during the course of oral argument.
The nature of judicial review proceedings
4 It is important at the outset to describe the general nature of legal proceedings which challenge administrative decisions and processes and which these proceedings exemplify. Such proceedings are not concerned with the merits of administrative processes or decisions, but only with their legality. In this case it is not for the court to assess or express any view as to the merits or otherwise of the proposals for reform of the boundaries of the local government districts within the metropolitan area of Perth.
5 The court's only concern, and the court's only function, is to determine whether the requirements of the Act have been met, and whether the processes and procedures for district alteration stipulated in the Act have been followed, or whether either the Minister or the Board have exceeded the legal powers conferred upon them by the Act or failed to perform legal obligations imposed upon them.
6 If there has been a departure from the Act, before the court can intervene, it must assess whether the consequence of that departure is such that as a matter of law the Minister or the Board has exceeded the jurisdiction conferred by the Act, because, generally speaking, the court can only act if the relevant administrative official or body has exceeded the jurisdiction conferred upon them by the legislature, in this case the jurisdiction conferred pursuant to the Act.
7 There are limits upon intervention by the court which depend upon the nature of the relief sought. In the case of mandamus, which is an order directing an official to do something, or certiorari, which is in effect an order quashing something done by an official, it must be shown that the actions of the official have had an effect upon legal rights and interests, legal duties or obligations or legal powers and in respect of which the party moving the court has a relevant interest. It does not seem that relief of that character is sought in these proceedings, having regard to the minute of relief served yesterday by the applicants.
8 However, the applicants do seek injunctive relief which would prevent the Minister from acting upon any of the recommendations made to him by the Board following its consideration of the various proposals for the amendment of local government boundaries in the metropolitan area. The law with respect to the entitlement to injunctive relief is complex, but for present purposes it is sufficient to observe that generally speaking and insofar as these proceedings are concerned, the applicants would have to demonstrate that the Minister or the Board have acted or propose to act unlawfully and in a way which has or would prejudice their legal rights or interests in order to establish an entitlement to injunctive relief.1
9 The same requirement does not apply to relief in the form of declarations, but there must be demonstrated some practical utility in the court making a declaration before it will be made. The principles applicable to this area were conveniently described by the High Court of Australia in its decision in Ainsworth v Criminal Justice Commission:2
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen', or if 'the Court's declaration will produce no foreseeable consequences for the parties'. (footnotes omitted)3
10 Further, in proceedings of this kind, the grant of any relief is within the discretion of the court. The grounds upon which the court can refuse relief are not confined and they include cases in which the relief would serve little or no practical purpose.4
11 There is another general legal principle which is relevant to these proceedings. The courts do not permit their limited publicly funded resources to be dissipated by busybodies who have no particular interest in the proceedings they have commenced. This principle is embodied in the rules which require all parties to have sufficient standing to commence proceedings. At the risk of oversimplification, in order to have standing, a person's legal rights and interests must be affected by the conduct of which they complain or they must have a special or particular interest in the subject matter of the proceedings over and above that of the public generally.5 So in this case the applicants have standing to challenge decisions or actions of the Minister or the Board which relate to the abolition of their local government district or to alterations to its boundaries, but they do not have standing to challenge actions or decisions relating to other local government districts or boundaries unless they can establish that those decisions have had an effect on their district or its boundaries.
The Act
12 The focus of these proceedings is upon whether either or both of the Minister or the Board have exceeded the jurisdiction conferred upon them by the Act. It is therefore appropriate to start with a review of the legal framework created by the Act. Section 1.3 of the Act sets out the general objectives of the Act, which include the provision for a system of local government by providing for the constitution of elected local governments in the state and describing the functions of local governments. In that context, s 1.3(2) provides that:
(2) This Act is intended to result in -
(a) better decision-making by local government; and
(b) greater community participation in the decisions and affairs of local governments; and
(c) greater accountability of local governments to their communities; and
(d) more efficient and effective local government.
14 Section 2.5 of the Act provides that where an area of the state becomes a district, a local government is established for that district, and that the local government is a body corporate with perpetual succession and common seal and has the legal capacity of a natural person. So, once a district is created, then a local government is created in respect of that district by the operation of s 2.5.
15 Division 8 of pt 2 of the Act relates to the Board. Section 2.44 establishes the Board and gives legal effect to sch 2.5, which contains provisions about the Board. Section 2.45 provides that the functions of the Board include considering, and if required by the Act inquiring into, any proposal made to it under the Act that an order be made to do any or all of the matters in s 2.1 and various other sections of the Act, and also include making recommendations to the Minister on those proposals.
16 Much of the argument in this case has focused upon the terms of sch 2.1 of the Act and it is therefore appropriate to give detailed consideration to those provisions. By cl 1 of the schedule, various terms used in the schedule are defined. They include the term 'affected electors', which is relevantly defined in relation to a proposal, to mean:
[E]lectors whose eligibility as electors comes from residence, or ownership or occupation of property, in the area directly affected by the proposal.
- 'Affected local government' is defined by cl 1 to mean:
[A] local government directly affected by a proposal.
The word 'proposal' is defined by cl 1 to mean:
[A] proposal made under clause 2 that an order may be made as to any or all of the matters referred to in section 2.1.
Clause 2 of sch 2.1 provides that:
A proposal may be made to the Advisory Board by -
(a) the Minister; or
(b) an affected local government; or
(c) 2 or more affected local governments, jointly; or
(d) affected electors who -
(i) are at least 250 in number; or
(ii) are at least 10% of the total number of affected electors.
17 A proposal must also be accompanied by a plan illustrating any proposed changes to the boundaries of a district; and must also comply with any regulations about proposals, although there are none relevant to proposals by a minister or local government. The only relevant regulation concerns a proposal advanced by affected electors.
18 Clause 3 of sch 2.1 requires the Board to consider any proposal and requires that unless the Board exercises the specific powers given to summarily dispose of proposals made to it, the Board must formally inquire into the proposal.
19 Clause 4 provides that where a formal inquiry is required, the Board is to give notice to various persons including affected local governments and affected electors.
20 The notice must advise that submissions may be made to the Board within the time-frame specified by the clause. Clause 5 contains provisions relating to the conduct of the inquiry and the matters into which the Board is to inquire.
21 Clause 6 provides that after formally inquiring into a proposal, the Board, in a written report to the Minister, is to recommend either that the Minister reject the proposal; or that an order be made in accordance with the proposal; or if it thinks fit after complying with provisions of the subclause relating to consideration of a varied proposal, by making some other order that may be made under s 2.1.
22 Clause 6 limits the circumstances in which the Board may make some other recommendation by, effectively, requiring notice to be given to interested parties if there is to be a significant departure from the proposal under consideration by the Board.
23 Clause 7 empowers the Minister to conduct a poll of electors upon receiving the Board's recommendations. Clause 8 provides that:
(1) Where the Advisory Board recommends to the Minister the making of an order to abolish two or more districts (the districts) and amalgamate them into one or more districts, the Board is to give notice to affected local governments, affected electors and the other electors of districts directly affected by the recommendation about the recommendation.
(2) The notice to affected electors has to notify them of their right to request a poll about the recommendation under subclause (3).
(3) If, within one month after the notice is given, the Minister receives a request made in accordance with regulations and signed by at least 250, or at least 10%, of the electors of one of the districts asking for the recommendation to be put to a poll of electors of that district, the Minister is to require that the board's recommendations be put to a poll accordingly.
(4) This clause does not limit the Minister's power under clause 7 to require a recommendation to be put to a poll in any case.
24 Clause 9 is concerned with the procedure for holding a poll. Clause 10 provides that:
(1) Subject to subclause (2), the Minister may accept or reject a recommendation of the Advisory Board made under clause 3 or 6.
(2) If at a poll held as required by clause 8 -
(a) at least 50% of the electors of one of the districts vote; and
(b) of those electors of that district who vote, a majority vote against the recommendation,
the Minister is to reject the recommendation.
(3) If the recommendation is that an order be made and it is accepted, the Minister can make an appropriate recommendation to the Governor under section 2.1.
25 It will be necessary to come back to this clause in more detail later, but it is sufficient for present purposes to observe that its structure, generally, is to provide the Minister with a general discretion to either accept or reject a recommendation of the Board, subject only to the constraint imposed by subclause (2). That constraint will apply if one or other of the two districts abolished has been the subject of a poll and 50% of the electors in that district voted, and of the electors who vote, the majority voted against the recommendation. Unless those various conditions are satisfied, the Minister retains a general discretion to either accept or reject the recommendation of the Board.
26 As I have noted, sch 2.5 of the Act relates to the Board. Clause 2 of that schedule provides that the Board is to consist of five members, and specifies the characteristics of the persons who are to comprise the membership of the Board. Specifically it provides for one person to be nominated by the Minister, two persons with experience as members of a council appointed from a list submitted to the Minister by a local government organisation, one person having experience as the CEO of a local government appointed from a list submitted by another organisation, and one person who is to be an officer of the Department6 nominated by the Minister.
27 Clause 3 provides for the appointment of deputies to any member appointed under the provisions of cl 2, other than for the nominee of the Minister, and also provides for the circumstances in which those deputies may act in place of the person appointed.
28 Clause 7 provides for the meetings of the Board and provides that the member appointed under cl 2(a) on the nomination of the Minister is to preside at all meetings of the Board at which he or she is present. The same clause provides that if the member appointed on the nomination of the Minister is not present at the meeting, then the member appointed under cl 2(d), who is the member who is an officer of the Department, is to preside. The same clause provides that the quorum of a meeting is three, one of whom must be the member appointed by the Minister or the member appointed who is an officer of the Department. The clause goes on to specify the manner in which members vote and also to specifically require that each member is to have regard to the general interests of local government in the state. Subclause (7) provides that:
Subject to any order under subclause (8), a member is disqualified from acting where the matter being considered or inquired into by the Advisory Board is a matter relating to a local government of which the member is a member, employee or elector.
- However, subclause (8) provides:
The Minister may, by order, declare that subclause (7) does not apply in relation to a matter or class of matters specified in the order, and that order has effect according to its terms.
30 Clause 10 of sch 2.5 provides that:
The Departmental CEO is to make an officer of the Department available to the Advisory Board to act as its executive officer.
31 It will be necessary for me to return to those provisions in more detail later, but it is sufficient to observe that it is clear from the face of sch 2.5 that the legislature intended that there would be a significant degree of connection between the Board and the Department. The Act specifies that the officer of the Department who is a member of the Board is to have significant responsibilities as a member of the Board, including presiding in the absence of the nominee of the Minister and the presence of that person is required to make up a quorum if the nominee of the Minister is not present. The Board is supported by an executive officer who is an officer of the Department.
The Facts
32 I turn now to the facts which have been established by the evidence, mainly by way of an agreed statement of facts which has been tendered as exhibit 1. I will refer only to those facts which are most relevant to the issues which have been ventilated.
33 It is not necessary to go into the details of all of the members of the Board, having regard to the way in which the argument has unfolded. Councillor Melvyn Congerton is the nominee of the Minister, and therefore chairs the meetings of the Board when present. The officer of the Minister's Department who served on the Board at the times relevant to those proceedings is Ms Mary Adam, who holds the office of Director Legislation and Statutory Support. She was appointed on 7 October 2013. The agreed facts also identify the deputies of the persons appointed pursuant to sch 2.5 of the Act, and they include Mr Timothy Derek Fowler, who is the deputy of Ms Adam and who holds the office of Special Adviser Legislation and Reform at the Department.
34 The job descriptions of each of Ms Adam and Mr Fowler have been tendered in evidence. In the case of Ms Adam, the detailed specification of her duties includes the provision of leadership and management to the Legislation Branch; the provision of high level legal and policy advice to the Minister, Director General and senior executive of the Department; participation in and contribution to the department's strategic planning policy development processes; liaising with State Solicitor's Officer to obtain advice on specific legal matters; and providing advice on legal aspects of the agency to the Director General and senior executive.
35 In the case of Mr Fowler, his duties include contribution to the executive of the Department; the provision of strategic and expert advice to the Director General on matters of local government structural reform and local government legislation; provision of advice and assistance to the Minister in relation to the passage of reform legislation through the Parliament; the provision of strategic advice to the Director General, directors and senior managers on high level local government issues affecting the Department; the provision of advice on the implementation of legislative reform initiatives; the provision of strategic advice for departmental engagement with the local government sector in relation to sector reform issues; engagement in negotiations with local government, mayors, presidents and chief executive officers in relation to sector reform issues; and the case management of specific high level structural reform initiatives impacting on selected local governments. Clearly Mr Fowler is specifically involved in the area of local government reform. In August 2013, the Department published an information kit which identified Mr Fowler as one of the departmental contacts who could provide information or assistance to local governments in implementing the government's reform model.
36 Further, the minutes of the Board meeting held on 6 August 2013 record:
M. Congerton suggested T. Fowler now had a conflict of interest moving forward with the metropolitan reform process as he is providing advice and assistance to the metro review team. T. Fowler agreed and said that the new Departmental member to be appointed in September 2013 would alleviate this problem.
37 There is no reason to doubt the accuracy of these minutes. It seems a fair inference from the agreed facts that the new departmental member to whom Mr Fowler was referring was Ms Adam, who was appointed to the Board in early October 2013.
38 During 2013, a number of local governments submitted proposals to the Board, including relevantly a proposal described by the Board as proposal 5 which was submitted by the City of Armadale that affected the Shire of Serpentine Jarrahdale, a joint proposal by the City of South Perth and the Town of Victoria Park described by the Board as proposal 13 which affected the City of South Perth, and a proposal identified by the board as proposal 17 which was submitted by the Town of Cambridge and which affected the City of Subiaco. It is of significance to the arguments advanced by the applicants that each of those proposals was submitted to the Board prior to any ministerial proposal having been submitted to the Board.
39 The minutes of the meeting of the Board held on 24 October 2013 record that the chairman advised members that the Minister wished to meet with the Board on 31 October 2013 in order to discuss policy issues associated with the reform. The meeting on 31 October took place, although there are no minutes or other record of the discussions which took place. Nevertheless, the minutes of the meeting of the Board on 24 October record the Acting Director General of the Department advising the Board of the general nature of the Minister's proposals to the Board and that the purpose of the meeting was in order to brief members on the development of the Minister's proposals and the time-frames, and to discuss the government's policy position. There is no reason to doubt that this was an accurate description of what was proposed for the meeting and what was actually discussed by the Board and the Minister.
40 In the result, the Minister made 12 proposals to the Board between 30 October and 12 November, and they were numbered by the Board as proposals 01/2013 to 12/2013. At a meeting of the Swan division of the Liberal Party on 25 August, the Minister said words to the effect that the Act allowed him to use boundary adjustments to avoid the need to hold binding polls, and that using a boundary adjustment saved time and allowed him to keep to his timetable for reform.
41 In the period between October 2013 and the Board's delivery of its report in September 2014, Councillor Congerton met with the Minister to regularly brief the Minister on the progress of the Board's deliberations and other issues relating to local government reform on various dates specified in the agreed statement of facts, those dates ranging between 31 October 2013 and 13 August 2014. There is limited evidence with respect to the subject matter of those discussions, although they include discussion with respect to the timeline for completion of the Board's deliberations; the provision of an overview to the Minister by Councillor Congerton of intended recommendations, and the proposals which the Board intended to progress; an update on the Board's progress and advice from the Minister to the effect that he wanted to be provided with the Board's recommendations by the end of August.
42 At the Board's meeting of 3 December 2013, the Board resolved to conduct a formal inquiry into each of the 32 proposals it had by then received for changes to Perth's metropolitan local government boundaries. On a number of occasions, members of the Board declared an interest of the kind to which reference is made in cl 7(7) of sch 2.5 of the Act, and did not participate in proceedings. The allegation made in the proceedings to the effect that the requirements of that clause of the Act had been infringed by members of the Board was abandoned during the course of the hearing, so it is unnecessary to go into those matters in detail. It is, however, worthy of note as part of the chronology that on 5 June 2014, the Minister made an order under cl 7(8) of sch 2.5 of the Act. In that order, after describing his role and function, the Minister referred to his conclusion that the order was necessary to enable the Board to perform its functions properly within the meaning of cl 7(9) of sch 2.5 to the Act. Acting pursuant to cl 7(8) of sch 2.5 to the Act, the Minister declared that cl 7(7) of sch 2.5 to the Act does not apply in relation to the matters which he defined as follows:
The proposals it [the Board] has received during the period 01/06/2013 and 30/04/2014, in relation to local government districts within the metropolitan region, and which it may consider, on and from the date on which this order comes into effect, for the making of a possible recommendation under subclause 6(1)(b) of Schedule 2.1 to the Act.
43 The Minister's declaration and order was published in the Government Gazette on Monday 9 June 2014. After that declaration and order was made, members of the Board continued to declare an interest in particular proposals in which they were a member, elector or employee of the relevant local government but, nevertheless, ultimately voted upon resolutions relating to the proposals pursuant to the authority conferred by the Minister's declaration.
44 I move now from the agreed statement of facts to some of the evidence adduced by the applicants in support of their contentions, starting with the evidence that is said to go to the question of an apprehended perception of bias on the part of members of the members. That evidence is largely to be found within the agreed statement of facts, but also includes an email that went from the chairman of the Board to somebody in the Minister's office in July 2013 which ends with the following sentence:
Let the Minister know from me that he's doing a great job in the trenches ... in the words of Churchill … we will prevail!
45 The most I would infer from that email is that the chairman was supportive of the general steps that were then being taken by the Minister to encourage the process of local government reform. This email was written many months before the Minister had placed any specific proposals before the Board. It is impossible to draw any more specific inference from the very general terms of that email. In addition, reliance is placed upon the meeting which took place between the Minister and the Board on 31 October, to which I have referred, and upon a later communication between Ms Adam and some other members of the Board, the subject of which is unidentified other than by a reference to 'structural reform'. It is difficult to see what, if any, inference could be drawn from that email by either the court or by any fair-minded lay observer.
46 The Board published its report and its recommendations to the Minister after these proceedings had been commenced. The Board recommended that the Minister reject all but one of the proposals made by the Minister. The one proposal from the Minister which the Board recommended be accepted, numbered by the Board as (04/2013), is unconnected with any of the applicants before the court and relates to the City of Swan.
47 It follows that, pursuant to s 2.1(3) of the Act, the Minister cannot make a recommendation to the Governor to implement any of the proposals which he made to the Board that are relevant to any of the three applicants before the court. In relation to the City of Subiaco, all the proposals except proposal 17, which was made by the Town of Cambridge, were rejected and proposal 17 was recommended for acceptance. That proposal was described by the Board in the following terms when it recommended to the Minister that, pursuant to cl 6(1)(b) of sch 2.1 to the Act:
Recommendations
1. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 4 recommends pursuant to clause 6 (1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
2. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 12/2013 recommends pursuant to clause 6 (1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
Proposal 17 (Cambridge/Subiaco)
The Local Government Advisory Board (the Board) recommends to the Minister:
1. pursuant to clause 6 (1) (b) of Schedule 2.1 to the Local Government Act 1995 (Act), that an order be made, under section 2.1 (1) (d) of the Act:
- (a) abolishing the district of the City of Subiaco;
[see Act s2.1 (1) (c)]
(b) changing the boundaries of the Town of Cambridge to reflect those shown in Section 1.10 of the Appendices.
[see Act s2.1 (1) (b)]
- 2. pursuant to clause 10A(1) (a) of Schedule 2.1 to the Act, that an order be made, under section 2.2 (1) (e) of the Act abolishing all of the wards into which the district of the Town of Cambridge is divided.
[see Act s2.2 (1) (d)]
3. pursuant to clause 5 (c) of Schedule 2.2 to the Act that an order be made changing the name of the Town of Cambridge to the City of Subiaco.
[see Act s2.3 (3)]
Recommendations
1. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 06/2013 recommends pursuant to clause 6 (1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
Proposal 13 (South Perth/Victoria Park)
The Local Government Advisory Board (the Board) recommends to the Minister:
1. pursuant to clause 6 (1) (b) of Schedule 2.1 to the Local Government Act 1995 (Act), that an order be made, under section 2.1 (1) (d) of the Act:
(a) abolishing the current districts of:
- (i) the Town of Victoria Park; and
(ii) the City of South Perth;
[see Act s2.1 (1) (c)]
- (b) declaring the area of the State comprising:
- (i) the former district of the Town of Victoria Park; and
(ii) the former district of the City of South Perth,
to be a district (the new district);
[see Act s2.1 (1) (a)]
- (c) changing the boundaries of the new district to reflect that shown in Section 1.7 of the Appendices.
[see Act s2.1 (1) (b)]
- 2. pursuant to clause 10A (1) (a) of Schedule 2.1 to the Act, that:
(a) the order referred to at para 1 above, which is required to include an order naming the new district, and an order designating the district, name it the City of South Park and designate it a city.
[see Act ss 2.1 (1) (a) & s2.3 (1)]
(b) the order which specifies the number of offices of councillor on the council for the local government of the City of South Park, specify that the number of offices of councillor on the council be 12.
[see Act ss 2.1 (1) (a), 2.5 (1) & 2.18 (1) (a)]
Recommendations
1. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 11/2013 recommends pursuant to clause 6(1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
2. The Local Government Advisory Board after formally inquiring into the proposal identified as Proposal 11/2013 recommends pursuant to clause 6(1)(a) of Schedule 2.1 of the Local Government Act 1995 that the Minister for Local Government reject the proposal.
Proposal 5 (Armadale/Serpentine Jarrahdale/Murray)
The Local Government Advisory Board (the Board) recommends to the Minister:
1. pursuant to clause 6(1)(b) of Schedule 2.1 to the Local Government Act 1995 (Act), that an order be made, under section 2.1(1)(d) of the Act:
(a) abolishing the district of the Shire of Serpentine Jarrahdale;
[see Act s2.1(1)(c)]
(b) changing the boundaries:
(i) of the district of the City of Armadale; and
(ii) of the district of the Shire of Murray,
to reflect those shown in Sections 1.8 and 1.9 of the Appendices.
(a) abolishing all of the wards into which the districts of:
(i) the City of Armadale; and
(ii) the Shire of Murray,
are divided;
[see Act s2.2(1)(d)]
(b) dividing the district of the Shire of Murray into wards as shown on the map at page 588 of the Report.
[see Act s 2.2(1)(a)]
(a) the order referred to at para 2(b) above, which is required to include an order naming the wards, name the wards: North and South Wards, as shown on the map at page 588 of the Report;
[see Act s2.3(2)]
(b) an order be made under s2.18(3)(c) of the Act:
(i) changing the number of offices of councillor on the council for the district of the Shire of Murray to 10 offices;
[see Act s2.18(3)(a)]
(ii) specifying that the number of offices of councillor for the wards be:
(A) South: 8 offices of councillor;
(B) North: 2 offices of councillor.
[see Act s2.18(3)(b)]
51 In relation to the recommendations made with respect to each of the Shire of Serpentine Jarrahdale and the City of Subiaco, the Minister has indicated that he will accept the Board's recommendation and that neither he nor the Board consider that the provisions of sch 2.1, cl 8 relating to the convening of a poll are applicable.
The grounds of review
52 There are four grounds of review in these proceedings. Grounds 1 and 2 relate only to the validity of proposals made by the Minister to the Board. However, as I have noted, only one of those proposals was accepted, and that proposal has no bearing or effect upon the rights or interests of any of the local governments that are the parties to these proceedings, or upon their electors.
53 All the Minister's proposals relating to those local government districts were rejected by the Board, and they cannot provide a basis for any further action by either the Board or by the Minister. It follows that there are no grounds upon which the court could grant relief of any kind in relation to those proposals because they have no continuing capacity to affect anybody's rights or interests and a declaration as to their validity would serve no purpose whatsoever. Grounds 1 and 2 were, for those reasons, rightly abandoned during the course of argument.
54 Ground 3 turns upon the proper construction of cl 2(1) of sch 2.1 and essentially embodies the proposition that an affected local government in this clause means a local government affected by a proposal previously made by the Minister. It follows that it is the applicants' contention that local governments have no power to make a proposal to the Board unless and until the Minister has made a proposal which directly affects those local governments, thus bringing those local governments within the description of 'affected local governments'.
55 It is therefore submitted by the applicants that because the Board has recommended the acceptance of proposals made by local governments which preceded the proposals made by the Minister, those recommendations were not validly made to the Board and the Board did not have jurisdiction to inquire into them and to recommend their acceptance to the Minister.
56 It must immediately be noticed that this is a very strained and artificial construction of the relevant provisions of the clause. On its face, the provision limiting proposals to affected local governments would seem to relate to the proposal being made by the local government at the time and not to a proposal made at some earlier time. The applicants' proposition is that the word 'affected', as an adjectival description of the local governments and electors referred to in cl 2(2), has two operative effects or consequences. The first is that it defines the local governments and electors, who are affected by a prior ministerial proposal. Secondly, it limits the nature of the proposals that may be advanced by an affected local government or by affected electors to a proposal which has the required degree of affectation, namely, that the proposal directly affects them or their interests.
57 It follows that the applicants concede the consequence for which the Minister contends, which is effectively the second meaning. That is, the applicants accept that the use of the word 'affected' as a descriptor of the local governments and electors who can make proposals confines the nature of the proposals which can be made by them pursuant to cl 2(1). The applicants, however, say that that descriptor 'affected' implicitly imposes an additional requirement - that is, that those persons must be 'affected' by a previous ministerial proposal.
58 It will immediately be noticed that there are no words in cl 2(1) which suggest that the descriptor 'affected' has this purpose. The proposition relies significantly upon the failure to describe the Minister as affected within cl 2(1). It is said that this connotes that the word 'affected', when used to describe local governments and electors, must mean local governments and electors who have been affected by some prior proposal, and it is only the Minister who can make such a prior proposal.
59 The reasoning process embodied in this argument is plainly wrong. Obviously the word 'affected' is not applied to the Minister because he is responsible for the administration of the Act throughout the State. He has an interest in every local government. It is used in relation to local governments and electors to ensure that they have a direct interest in every proposal they advance.
60 It is well established that definitions are not to be construed in isolation. Rather, the proper process of statutory construction is to read the definition into the operative provision for the purpose of giving meaning to the operative provision.8 When that is done, in relation to the definition of affected electors and affected local government, the meaning of cl 2 becomes relatively clear. It provides that a proposal may be made to the Board by a local government directly affected by that proposal or by two or more local governments directly affected by that proposal, or by electors whose eligibility as electors comes from residence or ownership or occupation of property in the area directly affected by that proposal.
61 The meaning which would be connoted by those words is further elucidated by reading the definition of the word 'proposal' in sch 2.1 into cl 2, so that the introductory words of cl 2(1), are, in effect:
A proposal made under clause 2 that an order be made as to any or all of the matters referred to in section 2.1 may be made to the Advisory Board by an affected local government, two or more affected local governments jointly, affected electors (and so on).
62 Read in this way, the proposal is defined by the commencing words of cl 2(1), and the degree of affectation of those who make the proposal can be assessed by reference to the proposal to which the clause relates. The meaning of the clause is pellucidly clear.
63 There is, perhaps, a slight drafting glitch in relation to the definitions, in that the definition of 'affected local government' uses the indefinite article 'a' when referring to a proposal, which might be read as suggesting that it may not be referring to the proposal advanced by the affected local government. There are, however, a number of reasons why this observation does not provide any guide to the proper construction and operation of the clause. The first is that the definite article 'the' is used in the definition of 'affected electors', whereas the indefinite article 'a' is used in the definition of 'affected local government'. It is hard to suppose that the parliament intended that there would be a difference between the degree of connection required to enable an affected elector to lodge a proposal under cl 2(1) and the degree of connection required to enable an affected local government to lodge a proposal under cl 2(1), or to stipulate a quite different process for each article in the definition of 'affected local government'. This observation rather suggests that the choice of the indefinite rather than the definite may have been inadvertent and sheds no particular light on the meaning of the clause.
64 Another reason for rejecting any conclusion drawn from the use of the indefinite article is that the use of the indefinite article is perfectly consistent with the use of the expression 'affected electors' and 'affected local government' in later provisions of the schedule, for example, cl 6 and cl 8, where the terms are used in relation to proposals which the relevant local governments or electors may have not themselves advanced. That context would explain the use of the indefinite article rather than the definite article in the definition.
65 The applicants also rely upon sch 2.2, and an analogy which is said to be drawn between the provisions of that schedule, which also contains a definition of affected electors, and the proper meaning given to sch 2.1. The first point to note about this submission is that the two schedules are concerned with different subject matters, and have similar but somewhat different definitions of affected electors. Schedule 2.2 is concerned with submissions relating to the recomposition of wards within a local government district and involves quite a different process or procedure to the procedure contemplated by sch 2.1. Under sch 2.2, if a process for changing ward boundaries is initiated by affected electors, in the first place those affected electors must make their submission to the local government, not to the Board. That is quite different to sch 2.1, under which the procedure involves affected electors putting a proposal directly to the Board. That explains the structure of cl 5 of sch 2.2 which specifically refers to a local government having power to make a proposal to the Board whether or not it has received a submission from affected electors.
66 The fact that there is no equivalent provision in sch 2.1 is plainly explicable by the fact that in sch 2.1, there is no reference to affected electors making any submission to the local government. So there would be no reason why a clause expressed in the manner of cl 5 conferring power upon local governments to submit proposals to the Board in different terms would be found in sch 2.1. There is no inference properly drawn from the terms of sch 2.2 in relation to the construction of cl 2(1) of schedule 2.1.
67 The other matter upon which the applicant relies is the second reading speech for the Bill for the Act, and in particular, a portion of the Minister's speech in which he said:
The advisory board will receive proposals to conduct an inquiry from a variety of sources, including the Minister, a local government or local governments jointly, or affected electors if they number at least 250 people or 10 per cent of the total number of affected electors, whichever is the lesser. This provision means that the Minister will be able to initiate change under the Bill, which is not currently the case, and that the number of electors required to initiate a review will be standardised for all circumstances. Further provisions outline the power of the Minister to accept or reject, but not change, the advisory board's recommendations.
68 With respect to the applicants, I can see nothing in these observations which support the construction of the Act for which they contend. On a plain reading of the speech given by the Minister, he referred to the possibility of a variety of sources initiating change, including the Minister. The fact that the Minister could initiate change under the Bill, to which the Minister made reference, does not support the proposition that it is only the Minister who can initiate change under the Bill. I do not find any support for the applicant's argument in those provisions.
69 The applicants also say that their construction of cl 2(1) is consistent with the preservation of limited public resources by enabling the Minister to control the areas of the State in which boundary change will be considered. There are, I think, two answers to this contention. Firstly, the public policy of constraining limited public resources is not evident from the language and ordinary meaning of the words used in the Act. Secondly, and in any event, the Board has adequate power to summarily dispose of proposals that lack merit, pursuant to the provisions to which I have briefly referred in cl 3 of sch 2.1.
70 The construction of cl 2 of sch 2.1 of the Act for which the Minister contends conforms with the natural and ordinary meaning of the words used in the schedule and reveals an ordered and logical process. Under that process, the Minister can advance a proposal relating to local government anywhere in the State, because he, of course, has plenary responsibility for all local government within the State. However, local governments or the requisite number of electors can only advance proposals for consideration by the Board which directly affect their district.
71 For those reasons, the construction of the Act upon which ground 3 depends must be rejected from which it follows that ground 3 must be dismissed.
72 Ground 4, as amended, raises three matters, first, the disqualification of members of the Board by reason of the operation of cl 7(7), on the basis that the member of the Board was a member, employee or elector to which a proposal before the Board related; secondly, an assertion that the member and deputy member who were members of the department were not disinterested in the Minister's proposal; and thirdly, an alleged perception of bias which is said to arise from communications between members of the Board and the Minister, to which I have referred in my summary of the facts.
73 That part of ground 4 which related to disqualification by reason of cl 7(7) was quite properly abandoned during the course of argument, given that there is no evidence that any member acted in respect of any proposal relating to a local government of which he was a member, employee or elector prior to the Minister's exercise of the power to make a declaration under cl 7(8).
74 There are various particulars and grounds given in support of ground 4. They overlap and are, to some extent, repetitious. It seems to me that all aspects of the ground fail for one or more of the following reasons. Firstly, as I have mentioned, there is no evidence that any member acted contrary to cl 7(7) prior to the Minister's order under cl 7(8). It is conceded now that the evidence is all to the contrary. Secondly, despite assertions in the applicant's written submissions to the contrary, there is no suggestion that the Minister's order purported to operate retrospectively.
75 Thirdly, and perhaps most significantly, it is well established that the content of the rules of procedural fairness depends upon the circumstances of the case, the nature of the power which is under consideration and the relevant statutory provisions.9 In this case, the statutory provisions clearly display an intention on the part of the legislature that employment within the Department will not, of itself, create a perception of bias, particularly given the important role which the representative of the Department plays in the operation of the meetings of the Board.
76 It is also clear from the relevant provisions that the Department is to have a close connection with the Board, particularly through the provision which requires the secretary of the Board to be a departmental officer. It is also clear from the legislative provisions that the legislature has acknowledged that, in some circumstances, it may be necessary for a member to act in relation to a local government of which he or she is a member, elector or employee, and the Minister may authorise members to act notwithstanding that interest.
77 So, in summary, it seems to me to be clear from those provisions that a perception of bias or pre-judgment does not arise merely from the fact that a member is employed by the Department or merely from communications between members of the Board and the Minister or officers of the Department.
78 The test for whether or not there is a reasonable apprehension of bias was enunciated by McLure JA (as her Honour then was) in Re MacTiernan.10 That test, as it applies in this instance, requires the court to consider the relevant circumstances and whether or not they would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision maker. The degree of impartiality required can vary according to the circumstances and nature of the decision to be made, and the decision-making authority. So, the standard of partiality applicable to a judge exercising judicial power is more onerous than that applicable to a multi-member statutory decision-making body with statutorily prescribed interaction with parties interested in their decisions, such as, in this case, the Minister.
79 There are a number of aspects of communications with the Minister which should be noted. Firstly, there is no embargo upon communications between the Minister and the Department and the Board in any of the express provisions of the Act and, indeed, any implication of any embargo upon such communications would be entirely inconsistent with the legislative structure, which requires officers of the Department to be members of the Board and which requires an officer of the Department to be the secretary of the Board.
80 It is also relevant that the process of inquiry connoted by sch 2.1 to the Act is a process of inquiry which enables submissions to be made to the Board by any interested party. Counsel for the applicants accepts there is no embargo upon the Minister putting a submission before the Board or upon the Department putting a submission before the Board.
81 It is significant that the departmental officers to whom I have referred are, by their duty statements, clearly given the obligation of advising the Minister in relation to relevant matters, including local government reform. They have the same obligation in relation to their duties as members of the Board, which is to provide advice and contribute to the deliberations of the Board with respect to the issues under consideration by the Board which, broadly speaking, relate to local government reform. There is no tension or conflict between these two roles.
82 Rather, the tension, as I apprehend it, is said by the applicants to lie in some improper use, or a perception of improper use, by departmental officers of their position as members of the Board to somehow advance the interests of the Minister, notwithstanding their obligation to act in the general interests of local government. However, there is no evidence of any improper or inappropriate communication between either the Minister or any member of the Department or any other departmental officer and any member of the Board. The fact that there has been communication could not create a perception in the mind of a fair-minded lay observer to the effect that there was some attempt by either the Department or the Minister to suborn the Board or to dictate the manner in which it should exercise its functions. The matters to which particular reference has been made in the evidence, including the chairman's general support of the Minister's attempts to generate local government reform in June or July of 2013, and the fact that the Minister met with the Board to discuss the way in which the Board would proceed do not create any inference or perception that would cause any concern to the fair-minded lay observer.
83 It is accepted by counsel for the applicants that the Minister could have put any submission he wished before the Board in the course of its inquiries, but the complaint seems to be that, by conducting a meeting without recording what was said during the course of that meeting, the fair-minded lay observer would draw some perception of improper communication. That seems to me to be fanciful and entirely speculative and would not involve a lay observer acting with a fair mind.
84 There are, of course, also the communications between the chairman of the Board and the Minister. Again, there is no evidence to the effect that there was any improper communication between those two at any time. Rather, the subjects that are known to have been discussed are all primarily related to procedural matters concerning the working of the Board. I can see no reason why any fair-minded lay observer would draw any adverse inference in relation to the partiality or impartiality of the Board from the fact of those communications.
85 Perhaps the most significant evidence to which the applicants point is the reference in the minutes of 6 August 2013 to Mr Fowler acknowledging that he had a conflict of interest. However, it is clear that that acknowledgement, while it is significant and should be taken into account by a fair-minded lay observer, does not determine whether or not Mr Fowler had a conflicting interest any more than a decision by a Board member that he did not have an interest would determine the question of whether or not he had a conflicting interest.
86 There is no evidence as to the basis upon which Mr Fowler formed the view that he had a conflicting interest at the time. So it is a significant fact and properly taken into account, but it does not determine the question of whether there is, in fact, a basis by which a fair-minded lay observer would apprehend that the members of the Board were not approaching their duties impartially within the context of the Act. For the reasons I have given, there is no basis upon which a fair-minded lay observer would have observed that Mr Fowler and Ms Adam were doing other than providing impartial advice to the Board for its consideration and expressing their views as to the best interests of local government generally. There is, in my view, no factual foundation for any inference of improper communication between the Minister and the Board and no evidence that either Ms Adam or Mr Fowler acted as an instrument of the Minister or in such a way as to give rise to any perception that they may have been acting as an instrument of the Minister.
87 The other point that is of the greatest significance to this ground is that taking the applicants' case at its highest, the fair-minded lay observer could only draw an inference to the effect that the Board would not bring a fair and unbiased mind to view the proposals before the Board which were advanced by the Minister.
88 There is no reason to think that the involvement of Ms Adam and Mr Fowler or the communications between the Minister and the Board would, in the mind of a reasonable lay observer, create a perception that the Board was assessing the proposals made by local governments in any way other than by reference to their merits. It is therefore significant that none of the proposals made to the Board by the Minister relevant to these applicants were accepted by the Board and that the only proposal made by the Minister accepted by the Board is unrelated to any of these three applicants.
89 It follows that to the extent that any fair-minded lay observer might have developed a perception of apprehended bias, it is not a perception that could reasonably apply to the Board's consideration of any of the proposals that were ultimately accepted by it. It follows that that perception of bias, even if it did, contrary to my view, exist, could not vitiate the process by which those proposals were considered and which resulted in their recommendation to the Minister. So for those various reasons, ground 4 must also be dismissed as ground 3 and 4 both must be dismissed, and these proceedings must also be dismissed.
1John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400, 405 - 406 (Moffitt P, Reynolds JA agreeing); Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561, 570 - 571 (Ipp J).
2 [1992] HCA 10; (1992) 175 CLR 564.
3Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 - 582 (Mason CJ, Dawson, Toohey & Gaudon JJ).
4Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 [45] (Martin CJ).
5Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493.
6 As defined in s 1.4 of the Act.
7 Clause 7(9) of sch 2.5.
8Griffith v Tang [2005] HCA 7; (2005) 221 CLR 99 [60]; R v Brown [1996] 1 AC 543, 561 (Lord Hoffman)
9Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 128 [66] (McLure JA).
10 [2005] WASCA 109; (2005) 30 WAR 128 [64] - [72].
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