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Queensland Judgments
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Independent Assessor v Councillor Conduct Tribunal

 

[2020] QSC 316

SUPREME COURT OF QUEENSLAND

CITATION:

Independent Assessor v Councillor Conduct Tribunal & Anor [2020] QSC 316

PARTIES:

INDEPENDENT ASSESSOR

(Applicant)

v

COUNCILLOR CONDUCT TRIBUNAL

(First Respondent)

and

NIGEL WAISTELL

(Second Respondent)

FILE NO/S:

5124/20

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2020

JUDGE:

Flanagan J

ORDER:

  1. The application for a statutory order of review and for review filed 13 May 2020 is dismissed.
  2. There be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant applied to the first respondent pursuant to the Local Government Act 2009 (Qld) to make a determination in respect of alleged misconduct by the second respondent – where the applicant then purported to revoke and rescind its application – where the first respondent advised that it would proceed to determine the application – whether the first respondent had jurisdiction to hear and determine the application

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – GENERALLY – where the Local Government Act 2009 (Qld) allowed the applicant to apply to the first respondent to make a determination in respect of alleged misconduct by councillors – where s 24AA of the Acts Interpretation Act 1954 (Qld) provided that the power to make an instrument or decision includes a power to amend or repeal the decision – where the application of the Acts Interpretation Act 1954 (Qld) could be displaced by a contrary intention appearing in any act – whether the Local Government Act 2009 (Qld) displaced s 24AA of the Acts Interpretation Act 1954 (Qld)

Acts Interpretation Act 1954 (Qld), s 4, s 24AA
Local Government Act 2009 (Qld), s 150W

Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2008] QSC 305
Firearm Distributors Pty Ltd v Carson & Ors [2001] 2 Qd R 26
Pfeiffer v Stevens (2001) 209 CLR 57
Ping v Medical Board of Queensland [2004] 1 Qd R 282
Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412
Shelley v Board of Professional Engineers Queensland & Anor [2020] QSC 38

COUNSEL:

SJ Keim SC for the applicant

SA McLeod QC, with MR Wilkinson for the first respondent

Nigel Waistell, self-represented, for the second respondent

SOLICITORS:

Office of the Independent Assessor for the applicant

Councillor Conduct Tribunal for the first respondent

  1. [1]
    The applicant (“Independent Assessor”) is a statutory officer established under s 150CT of the Local Government Act 2009 (Qld) (“LG Act”) to perform a variety of investigative and advisory functions in relation to the conduct of councillors in Queensland local government areas.[1]  The first respondent (“Tribunal”) is also established by the LG Act to investigate and make determinations in relation to the conduct of councillors, including upon application by the Independent Assessor.[2]  In January 2020, the Independent Assessor made an application to the Tribunal concerning the conduct of the second respondent (“Mr Waistell”), and later purported to revoke and rescind that application.  The Tribunal advised its intention to proceed and issue directions for the hearing of the application.  The Independent Assessor challenges that decision on the basis that the Tribunal no longer has any lawful jurisdiction to continue to conduct a hearing in relation to its application.

Factual Circumstances

  1. [2]
    On 9 April 2019, the Scenic Rim Regional Council (“SRRC”) referred to the Independent Assessor a complaint about the conduct of Mr Waistell, who was then the councillor for Division 1 of the SRRC.[3]  The complaint related to an alleged breach of the SRRC’s Acceptable Requests Guidelines.[4]
  2. [3]
    On 17 April 2019, a delegate of the Independent Assessor notified Mr Waistell that he reasonably suspected that the conduct the subject of the complaint was, if proven, ‘inappropriate conduct’ and should be referred to the SRRC for investigation.[5]  The complaint was referred to the SRRC on 9 May 2019, accompanied by a recommendation that the SRRC refer the complaint to the Tribunal for investigation.[6]
  3. [4]
    The SRRC accordingly referred the complaint to the Tribunal[7] and on 3 September 2019, the Tribunal reported to the SRRC that there was evidence to sustain a finding of ‘misconduct’ rather than inappropriate conduct and that the complaint should be referred to the Independent Assessor for reassessment.[8]  The SRRC referred the matter to the Independent Assessor on 11 September 2019.[9]
  4. [5]
    On 11 December 2019, the Independent Assessor notified Mr Waistell that she was satisfied that his conduct amounted to misconduct and was considering making an application to the Tribunal to deal with the matter.  Mr Waistell was given the opportunity to respond to this correspondence[10] and provided his response on 3 January 2020.[11]  On 22 January 2020, the Independent Assessor filed an application pursuant to the LG Act for the Tribunal to decide whether Mr Waistell had engaged in misconduct.[12]
  5. [6]
    On 10 March 2020, the Independent Assessor wrote to the Tribunal to advise that, pursuant to s 24AA of the Acts Interpretation Act 1954 (Qld) (“AIA”), the Independent Assessor intended to revoke the application.[13]  That letter explained as follows:

“Enquiries undertaken with the Queensland Electoral Commission have ascertained that Councillor Waistell has not nominated as a candidate for the 2020 local government election.

Having regard to the above considerations, I do not consider that there is a continuing public interest in the misconduct proceedings commenced against Councillor Waistell.

The purpose of this letter is to formally revoke and rescind my application to the Tribunal to decide whether Councillor Waistell had engaged in misconduct.”[14]

  1. [7]
    On 20 March 2020, the President of the Tribunal replied to the Independent Assessor to advise that the Tribunal did not consider that the Independent Assessor had the power to repeal its decision:[15]

“The Tribunal does not consider that the Independent Assessor has the power to repeal its decision, as s 24AA of the Acts Interpretation Act 1954 is displaced by a contrary intention appearing in chapter 5A of the Local Government Act.

As the Tribunal is now the relevant decision-maker for the conduct, the Tribunal will continue to deal with the application in accordance with the Local Government Act.”[16]

  1. [8]
    In further correspondence, the Independent Assessor sought clarification of this position, and the Tribunal elaborated as to the provisions of the LG Act which it considered displaced s 24AA of the AIA.[17]  The Tribunal proceeded to set the matter down for a directions hearing.[18]  The Independent Assessor, relying upon and attaching advice prepared by Queen’s Counsel, responded that:

“From the Office of the Independent Assessor’s (OIA’s) perspective this is an important issue to resolve as the Tribunal’s view on the current matter has broader ongoing significance to the efficient progress of matters currently before the Tribunal, as well as matters that may be referred to the Tribunal in the future.

Given the number of matters currently before the Tribunal, and which are being prepared for referral to the Tribunal, the Independent Assessor is also concerned to ensure that the OIA’s resources are used as efficiently and effectively as possible.

More fundamentally perhaps, the Independent Assessor is also concerned about being required to prosecute a Councillor, potentially to the point of a misconduct finding and sanction; in circumstances where the Independent Assessor considers there is no longer a public interest in doing so.”[19]

  1. [9]
    The Tribunal responded to reiterate its position that s 24AA of the AIA “cannot override the jurisdiction of the Tribunal to hear and determine matters of alleged Misconduct by Councillors” and that it would proceed to issue directions for the hearing.[20]

Statutory framework

  1. [10]
    The LG Act was amended in 2018 to introduce Chapter 5A, which deals with councillor conduct and prescribes means of investigating and dealing with complaints about the conduct of councillors.[21]  Chapter 5A provides for the establishment of the Independent Assessor,[22] the Office of the Independent Assessor[23] and the Tribunal.[24]
  2. [11]
    The functions of the Independent Assessor are set out in s 150CU of the LG Act:

150CU Functions

  1. (1)
    The functions of the assessor are–
  1. (a)
    to investigate and deal with the conduct of councillors if it is alleged or suspected to be inappropriate conduct, misconduct or, when referred to the assessor by the Crime and Corruption Commission, corrupt conduct; and
  1. (b)
    to provide advice, training and information to councillors, local government employees and other persons about dealing with alleged or suspected inappropriate conduct, misconduct or corrupt conduct; and
  1. (c)
    to prosecute offences against the conduct provisions; and
  1. (d)
    to investigate other matters decided by the Minister; and
  1. (e)
    another function related to a function mentioned in paragraph (a), (b), (c), (d) or (f) directed, in writing, by the Minister; and
  1. (f)
    any other functions given to the assessor under this Act.
  1. (2)
    The assessor is the public official responsible for dealing with a complaint about the corrupt conduct of a councillor for the purposes of consultation about, or a referral of, the complaint under the Crime and Corruption Act 2001.”
  1. [12]
    As such, the LG Act prescribes means by which complaints about the conduct of councillors and possible instances of inappropriate conduct or misconduct may be brought before the Independent Assessor for investigation.[25]  After investigating the conduct of a councillor, options available to the Independent Assessor are:

150W Decision about conduct

  1. (1)
    After investigating the conduct of a councillor, the assessor may decide to–
  1. (a)
    if the conduct was the subject of a complaint made or referred to the assessor under division 2 – dismiss the complaint about the conduct under section 150X; or
  1. (b)
    if the assessor reasonably suspects the councillor’s conduct is inappropriate conduct – refer the suspected inappropriate conduct to the local government to deal with; or
  1. (c)
    if the assessor is reasonably satisfied the councillor’s conduct is misconduct – make an application to the conduct tribunal about the conduct; or
  1. (d)
    if the assessor is reasonably satisfied the councillor’s conduct is inappropriate conduct and the conduct is connected to conduct of the councillor that the assessor is reasonably satisfied is misconduct – make an application to the conduct tribunal about the alleged misconduct and inappropriate conduct; or
  1. (e)
    take no further action in relation to the conduct under section 150Y.
  1. (2)
    However, if the conduct was referred to the assessor by the conduct tribunal under section 150DLA, the assessor may–
  1. (a)
    if the assessor is reasonably satisfied the councillor’s conduct is misconduct – make an application to the conduct tribunal about the conduct; or
  1. (b)
    if the assessor is not reasonably satisfied the councillor’s conduct is misconduct – give the conduct tribunal a notice stating the assessor is not reasonably satisfied the councillor’s conduct is misconduct.”
  1. [13]
    In the event that the Independent Assessor is reasonably satisfied a councillor has engaged in misconduct or inappropriate conduct connected to alleged misconduct, the assessor may apply to the Tribunal to determine the matter.[26]
  2. [14]
    The functions of the Tribunal are also set out in the LG Act:

150DL Functions

  1. (1)
    The functions of the conduct tribunal are–
  1. (a)
    at the request of a local government–
  1. (i)
    to investigate the suspected inappropriate conduct of a councillor referred to the local government, by the assessor, to be dealt with by the local government; and
  1. (ii)
    to make recommendations to the local government about dealing with the conduct; and
  1. (b)
    another function related to a function mentioned in paragraph (a) or (c) directed, in writing, by the Minister; and
  1. (c)
    any other functions given to the conduct tribunal under this Act.
  1. (2)
    A member of the conduct tribunal chosen by the president may constitute the conduct tribunal to perform the functions mentioned in subsection (1)(a) for a particular request.
  1. (3)
    Nothing in this section limits the president’s duty under the Crime and Corruption Act 2001 to notify the Crime and Corruption Commission about suspected corrupt conduct.”
  1. [15]
    When the Independent Assessor makes an application to the Tribunal to determine a matter of alleged inappropriate conduct or misconduct, s 150AL of the LG Act provides that the Tribunal must conduct a hearing about the application. That hearing is subject to various formal requirements, including that:

 the hearing must be conducted in accordance with the general principles prescribed in Chapter 7 of the LG Act, which require observance of natural justice and allow dispensation with procedural rules;[27]

 the Independent Assessor is a party to the hearing and bears the onus of proof;[28]

 the councillor is a party to the hearing and the respondent to the application; and[29]

 the standard of proof at the hearing is on the balance of probabilities.[30]

  1. [16]
    Following the hearing, the Tribunal must decide whether the councillor has engaged in the conduct alleged and which of the prescribed disciplinary actions to take,[31] from taking no action to recommending the dismissal of the councillor.[32]  The Tribunal must keep a written record of the decision and notify the decision to interested parties.[33]  Decisions of the Tribunal may be subject to review by QCAT.[34]
  2. [17]
    The terms of s 24AA of the AIA should also be noted:

24AA Power to make instrument or decision includes power to amend or repeal

If an Act authorises or requires the making of an instrument or decision–

  1. (a)
    the power includes power to amend or repeal the instrument or decision; and
  1. (b)
    the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.”
  1. [18]
    Under the AIA, ‘repeal’ is defined to include (for an instrument) ‘to revoke or rescind’ and ‘instrument’ is defined to mean any document.[35]
  2. [19]
    Section 24AA of the AIA is subject to s 4 of the AIA, which provides that the application of the AIA may be displaced, wholly or partly, by a contrary intention appearing in any Act.[36]

Submissions for the Independent Assessor

  1. [20]
    The Independent Assessor contends that the Tribunal’s decision to proceed with the hearing of the application is a decision of an administrative character made under the LG Act, and is therefore a decision to which the Judicial Review Act 1991 (Qld) (“JR Act”) applies.[37]  The Independent Assessor, as a person aggrieved by the decision,[38] seeks declarations under s 30(1)(c) or under s 47(1) of the JR Act that:

 it has revoked and rescinded the application to the Tribunal; and

 the Tribunal’s proposed conduct in hearing and determining the application is beyond power.[39]

  1. [21]
    The Independent Assessor’s primary submission is that s 24AA of the AIA applies to the LG Act, allowing the Independent Assessor to revoke or rescind its application to the Tribunal with the effect that it is “as if the application had not been filed”.[40]  It is contended that the Tribunal relies on “obligatory language” in the LG Act, such as that the Tribunal must conduct a hearing about the application and that the hearing must be conducted in the way specified under the LG Act.[41]  The Independent Assessor submits that this obligatory language is premised upon the existence of a continuing application by the Independent Assessor, and has nothing to say whether the effect of s 24AA of the AIA is displaced.[42]
  2. [22]
    The Independent Assessor identifies the principle that certain statutory powers regarding rights, entitlements and liabilities are spent by their exercise, and (absent fraud) cannot be rescinded by the decision maker without the consent of the affected party.[43]  In such cases, the need for finality displaces the effect of s 24AA of the AIA.[44]
  3. [23]
    On that basis, a distinction is drawn between the adjudicative role of the Tribunal, and the Independent Assessor’s statutory discretionary power to commence a proceeding, which does not itself determine rights and entitlements.[45]  According to the Independent Assessor, its role is analogous to that of the prosecutor in criminal proceedings, wherein prosecutorial decisions are not reviewable by the courts.[46]  It is submitted that the statutory role of the Independent Assessor, as a party to the proceedings bearing the onus of proof, reinforces the Independent Assessor’s role in conducting the proceedings, which extends to revocation of the application in accordance with changed circumstances.[47]

Submissions for the Tribunal

  1. [24]
    The Tribunal contends that the LG Act evinces an intention to exclude the operation of s 24AA of the AIA, meaning that the Independent Assessor cannot revoke its application.  Accordingly, the Tribunal submits that it does have jurisdiction to decide the application and that the Independent Assessor's application to this Court should be dismissed.[48]
  2. [25]
    The Tribunal notes that the fact that a power is not adjudicative in nature does not necessarily mean that it can be revoked,[49] and points to various features of the statutory scheme which militate against the possibility of revoking an application, including:

 the strict requirements imposed on the Independent Assessor in making an application;[50]

 the mandatory language of the Tribunal’s obligations following the making of an application;[51]

 that the Independent Assessor must be “reasonably satisfied” of possible misconduct before making an application to the Tribunal[52] which is said to be a “higher threshold” than that applicable to inappropriate conduct[53] (which the Independent Assessor need only reasonably suspect);[54] and

 the lack of an express power to revoke, discontinue or withdraw an application, which may be contrasted with legislation governing the Administrative Appeals Tribunal or Queensland Civil and Administrative Tribunal.[55]

  1. [26]
    The Tribunal also raises the unequivocal terms of the Independent Assessor’s application in this case,[56] and the fact that the Independent Assessor’s revocation did not indicate that the Independent Assessor was no longer “reasonably satisfied” of the possible misconduct.[57]
  2. [27]
    A final possibility raised by the Tribunal is that the matter was, in fact, referred to the Independent Assessor under s 150DLA of the LG Act.  Section 150DLA applies where the Tribunal is investigating suspected inappropriate conduct referred to a local government by the Independent Assessor.  In the event that the Tribunal is reasonably satisfied that the conduct is misconduct, the matter must be referred back to the Independent Assessor for further assessment.[58]  In this situation, s 150W(2) of the LG Act (set out above) applies, and limits the Independent Assessor’s options to making an application to the Tribunal to determine the matter (s 150W(2)(a)), or notifying the Tribunal that it is not reasonably satisfied the conduct in question is misconduct (s 150W(2)(b)).  The Tribunal argues that the mandatory nature of the course taken by the Independent Assessor under s 150W(2)(a) further suggests that the application cannot be revoked.[59]

Submissions of Mr Waistell

Mr Waistell, who was self-represented, did not file any written submissions. In oral submissions, he was generally supportive of the Independent Assessor’s submissions that she had the power to withdraw an application made to the Tribunal.[60]

Submissions for the Independent Assessor in reply

  1. [28]
    In response, the Independent Assessor disputes that the statutory features identified by the Tribunal preclude the revocation of an application, submitting that:

 the “higher threshold” applicable in respect of misconduct applications reflects the seriousness of that conduct and does not relate to whether such an application is capable of revocation;[61]

 the unequivocal nature of the decision to revoke the application, and the reasons for the decision, do not militate against a power of revocation;[62] and

 the inclusion of express powers of revocation in legislation governing other adjudicative bodies which are accessed by the general public “may be understood as justified if only for clarity of members of the public”.[63]

  1. [29]
    Regarding the possible application of s 150DLA of the LG Act, the Independent Assessor submits that this section applies in circumstances where the Tribunal refers a matter of possible misconduct directly to the Independent Assessor for investigation.  In the present case, the Tribunal referred the matter to the SRRC with the recommendation that the SRRC refer the matter back to the Independent Assessor for reassessment.  Accordingly, the Independent Assessor submits, correctly in my view, that s 150DLA and the related provisions of s 150W(2) are not applicable.[64]  Even in the event that s 150W(2) was applicable to the decision, the Independent Assessor does not accept that this constrains the Independent Assessor’s discretion such as to displace s 24AA of the AIA.[65]

Consideration

  1. [30]
    The issue of whether s 24AA is displaced by a contrary intention appearing in the LG Act is resolved upon a proper construction of that Act.  A consideration of the operation of s 4 of the AIA in the context of cases dealing with different legislation is of limited assistance.  Such a consideration does, however, assist in identifying the general approach to be adopted in determining whether the relevant Act evinces a contrary intention. 
  2. [31]
    In Pfeiffer v Stevens,[66] the section of the AIA considered by the High Court was s 23(1) rather than s 24AA.  Section 23(1) provides:

“If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires.”

  1. [32]
    Section 860(2) of the Local Government Act 1993 (Qld) provided that a local law proposed pursuant to s 860(1) must include a sunset provision stating that the law would expire six months after its commencement, or at the end of a longer period gazetted by the Minister.  An interim local law of a city council contained a sunset provision in those terms.  The Minister purported to extend the law twice.  The issue was whether the words “a longer period” in s 860(2) evinced a contrary intention so that s 23(1) of the AIA was displaced.  Gleeson CJ, McHugh and Hayne JJ concluded that no such contrary intention arose.  Gummow and Kirby JJ dissented. 
  2. [33]
    In deciding that s 860(2) did not evince a contrary intention, McHugh J observed:[67]

“An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.  It was so held in Blue Metal Industries Ltd v Dilley, a case involving the takeover provisions in the Companies Act 1961 (NSW).  The issue in Dilley was whether a section dealing with the transfer of shares in ‘a company’ to ‘another company’ attracted the presumption in the Interpretation Act 1899 (NSW) that a reference to the singular includes the plural.  The Judicial Committee of the Privy Council held that the Companies Act showed an intention to apply to a transfer to only one company.  Consequently, the Interpretation Act was inapplicable.” (Footnotes omitted)

  1. [34]
    His Honour referred to the following passage in Dilley:[68]

“The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would presuppose a different legislative policy.”

  1. [35]
    Applying that test, McHugh J considered that the Minister’s power under s 860(2) to extend the sunset period more than once did not change “the character of the legislation”.[69]  An application of this test to the present case identifies the issue as being whether the Independent Assessor, in seeking to revoke a decision made under s 150W(1)(c) of the LG Act, changes “the character of the legislation”.
  2. [36]
    In Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury,[70] Jones J considered whether an exercise of power under s 278(2) of the Liquor Act 1992 (Qld) could be amended pursuant to s 24AA of the AIA.  Section 278 dealt with the lapsing of a relevant licence:
  1. “(1)
    The relevant licence lapses at the beginning of the change day.
  1. (2)
    However, subsection (1) does not apply if the chief executive decides, under section 279(1), that the licence is to continue in force from the change day.”
  1. [37]
    Section 279(1)(a) provided that the chief executive must, before the change day, decide whether the relevant licence is to continue in force from the change day.  His Honour had to consider whether the operation of s 24AA was, by virtue of s 4 of the AIA, displaced by a “contrary intention appearing in any Act”. 
  2. [38]
    Jones J referred to the observations of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic:[71]

“… There was ‘an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise’ … However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed ‘from time to time as occasion requires’. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.”

  1. [39]
    Jones J also referred to the decision of Chesterman J in Firearm Distributors Pty Ltd v Carson & Ors,[72] where his Honour identified the proper approach as follows:

“Nevertheless the underlying reasoning made explicit by Vaisey J, and adverted to by Gummow J and Lawton LJ, is that where a power is adjudicative in nature, affecting rights or liabilities, it can only be exercised once. Such a view would accord with the law relating to arbitral awards and judicial pronouncements. The common law very early insisted that an arbitrator could not vary or recall an award. The rule was very strict.”

  1. [40]
    In Firearm Distributors, Chesterman J considered whether a decision under s 71(3) of the Weapons Regulation 1996 (Qld) as to an amount of compensation was capable of revocation or variation by the decision maker pursuant to ss 23(1) or 24AA of the AIA.  His Honour was satisfied that the authorities establish that “where the power conferred by statute is to make a decision with respect to the award of financial recompense in specified circumstances the power is exercisable only once.  The subject matter of the decision does not permit successive exercises of the power.”[73]  Having considered these two authorities, Jones J was of the view that the scheme of the Liquor Act “was such as to call for finality in respect of any decision concerning the continuance of a licence which by force of s 106 was prohibited as from the 1 July 2008”.[74]  His Honour considered that the evident purpose of the provisions was “to achieve certainty and finality as to the lapsing of the licence” and that it would “offend the spirit of this legislation and the clear intention of the legislature for the prohibition against holding the licence to be subject to arbitrary extensions”.[75]  His Honour therefore concluded that the Liquor Act expressed a “contrary intention” to the availability of s 24AA for the purpose of amending a decision taken in accordance with ss 278(2) and 279(1)(a) of the Liquor Act.
  2. [41]
    In the present case, it may be accepted that a decision of the Independent Assessor under s 150W(1)(c) of the LG Act to make an application to the Tribunal is not a decision which is adjudicative in nature.  The decision of the Independent Assessor under s 150W(1)(c) may only be made “if the assessor is reasonably satisfied the councillor’s conduct is misconduct”.  The issue is whether the Independent Assessor, having decided to make an application to the Tribunal, has “exhausted by her first exercise” the power to make such a decision.  While the cases considered by Chesterman J in Firearm Distributors support the principle that in general, s 24AA does not apply to a statutory power of an adjudicative nature which affects rights or liabilities, the application of this principle does not determine, as a matter of statutory construction, whether the relevant Act evinces a contrary intention.  The power, for example, considered by Jones J in Aurukun Shire Council was not adjudicative in nature.
  3. [42]
    Similarly, in Ping v Medical Board of Queensland,[76] Moynihan J considered that the power contained in s 164(1) of the Health Practitioners (Professional Standards) Act 1999 (Qld), which required the Medical Board to elect to conduct disciplinary proceedings against a Registrant by way of correspondence or by way of a hearing, was a power that could only be exercised once.  The relevant power was to decide procedural matters rather than substantive rights.    Upon a proper construction of the relevant legislation Moynihan J found that the Medical Board, having chosen one course, could not abandon it.
  4. [43]
    In Shelley v Board of Professional Engineers Queensland & Anor,[77] Applegarth J considered whether the Board was empowered to re-exercise its power to make a decision to grant or refuse to grant an application for registration as a professional engineer.[78]  In that case, the applicant submitted that the Professional Engineers Act 2002 (Qld) defined the powers of the Board and that the Act provided no power to revisit a decision to grant an application.[79]  Applegarth J referred to the relevant Act conferring an express power to cancel an engineer’s registration, as well as a power to immediately suspend a registration in the circumstances stated in s 29A.  The power to cancel could be exercised if the Board believed on reasonable grounds that the engineer was registered because of “a materially false or misleading representation or document”.[80]  In concluding that the decision to register the applicant could not be repealed by the Board pursuant to s 24AA of the AIA, his Honour reasoned:

“The subject matter of the power in question, namely granting a valuable entitlement to carry on practice as a professional engineer, the practical consequences of losing one’s registration, and the existence of an express power to cancel registration if certain conditions are satisfied, strongly suggest that the Act was not intended to permit the Board to repeal a decision to grant registration in circumstances which did not warrant suspension or cancellation of registration pursuant to the express powers conferred in s 28 and s 29A.”[81]

  1. [44]
    As is evident from the above passage, Applegarth J’s conclusion was based upon a proper construction of the relevant legislation.  His Honour’s analysis incorporated a consideration of the nature and exercise of the original power, together with the purported re-exercise of this power and its interaction with other provisions of the legislation.
  2. [45]
    I have outlined the basic statutory framework of the LG Act in [10] to [16] above.  In order to determine, however, whether s 24AA is displaced by a contrary intention appearing in the LG Act, it is necessary to consider the provisions of the LG Act in more detail.  Section 3(b) of the LG Act identifies that one of the purposes of the Act is to provide for a system of local government in Queensland that is accountable, effective, efficient and sustainable.  Section 4(1)(a) provides that to ensure the system of local government is accountable, effective, efficient and sustainable, Parliament requires anyone who is performing a responsibility under the LG Act to do so in accordance with the local government principles.  Section 4(2)(a) and (e) identifies two of the local government principles:

 transparent and effective processes, and decision-making in the public interest; and

 ethical and legal behaviour of councillors, local government employees and councillor advisors. 

  1. [46]
    Chapter 5A deals with councillor conduct.  Section 150B provides an overview of Chapter 5A and relevantly states, in s 150B(1)(d) and (e), that the chapter is about disciplinary action that may be taken against councillors who engage in inappropriate conduct or misconduct, and the entities that investigate and deal with complaints about the conduct of councillors.  Section 150B(2) provides that complaints about the conduct of councillors are to be made or referred to the Independent Assessor for investigation[82] and that the Independent Assessor, after investigating a councillor’s conduct, may take a number of steps including applying to the Tribunal to decide whether the councillor engaged in inappropriate conduct or misconduct and if so, what disciplinary action should be taken.[83]  Section 150K defines “inappropriate conduct” and s 150L defines “misconduct”.
  2. [47]
    Importantly, s 150M provides that Chapter 5A applies in relation to a person who was, but is no longer, a councillor if the person was a councillor when the conduct the subject of a complaint or investigation is alleged to have happened.  The fact that the Tribunal may take disciplinary action in respect of a person who is no longer a councillor is also reflected in s 150AR.  Section 150AR(2) and (5) restricts the orders the Tribunal may make against a person who is no longer a councillor.  For example, the Tribunal cannot order a former councillor to attend training or counselling to address the former councillor’s conduct or recommend that the Minister dismiss a former councillor.  As outlined in [6] above, the revocation of the application to the Tribunal purportedly pursuant to s 24AA was partly based on the fact that Mr Waistell had not nominated as a candidate for the 2020 local government election.  However, the effect of s 150M is that Chapter 5A applies to Mr Waistell irrespective of whether he had nominated as a candidate and the Tribunal is empowered to determine an application in respect of his conduct.  This is a factor weighing against a construction that the Independent Assessor is empowered to revoke a decision to apply to the Tribunal under s 150W(1)(c) (having been reasonably satisfied that the councillor’s conduct is misconduct), merely because the councillor does not intend to nominate for further election.
  3. [48]
    Another indication that the Independent Assessor cannot revoke a decision to apply to the Tribunal is that the Independent Assessor, having investigated the relevant allegation, has a number of options apart from deciding to apply to the Tribunal.  Under s 150T, the Independent Assessor must investigate the conduct of a councillor if the conduct is the subject of a complaint, notice, information or referral made in accordance with s 150T(1).  If the complaint is made by a person under s 150Q(3), the Independent Assessor may decide not to investigate the conduct at all if the relevant person does not comply with a notice seeking further information.
  4. [49]
    For the purposes of investigation, the Independent Assessor has wide powers identified in s 150V and may conduct an investigation in the way the Independent Assessor considers appropriate.  Under s 150W (outlined at [12] above) the Independent Assessor may make a number of decisions about the alleged conduct.  These include dismissing the complaint under s 150X, or taking no further action in relation to the conduct under s 150Y.  Pursuant to s 150X, the Independent Assessor is given a wide discretion to dismiss a complaint about the conduct of a councillor if it is satisfied:

“(a) the conduct –

  1. (i)
    has already been, or is being, dealt with by another entity; or
  1. (ii)
    does not constitute inappropriate conduct or misconduct; or
  1. (b)
    the complaint –
  1. (i)
    is frivolous or vexatious; or
  1. (ii)
    was made other than in good faith; or

  1. (iii)
    lacks substance or credibility; or
  1. (c)
    dealing with the complaint –
  1. (i)
    would not be in the public interest; or
  1. (ii)
    would be an unjustifiable use of resources.”
  1. [50]
    Section 150Y identifies circumstances in which the Independent Assessor may decide to take no further action in relation to the alleged conduct, including where the Independent Assessor is satisfied that taking further action would be an unjustifiable use of resources.  The LG Act therefore gives the Independent Assessor a wide discretion to dismiss a complaint or decide not to take any further action in relation to alleged conduct before an application is made to the Tribunal.  These circumstances suggest that the power to decide to apply to the Tribunal is a power to be exercised only once.
  2. [51]
    A further indication is that upon making an application to the Tribunal, the role of the Independent Assessor changes from that of investigator to a party to the hearing before the Tribunal.  Section 150AJ deals with an application to the Tribunal concerning alleged misconduct.  Section 150AJ(1) provides that the Independent Assessor may apply to the Tribunal to decide whether the councillor has engaged in misconduct, or inappropriate conduct connected to alleged misconduct.  Section 150AJ(2) requires the application to be in writing and include various details about the alleged misconduct.  The application under s 150AJ(2)(c) must state why the Independent Assessor is reasonably satisfied the councillor has engaged in misconduct.  Section 150AJ(2)(d) requires the application to include information about the facts and circumstances forming the basis for the Independent Assessor’s reasonable satisfaction.  Section 150AK requires a copy of the application to be given to the relevant councillor.  The Independent Assessor is made a party to the hearing by s 150AN(1).  Section 150AN(2) provides that the onus of proof is on the Independent Assessor to prove the councillor engaged in misconduct.  By s 150AO, the councillor is made a respondent to the application and a party to the hearing. 
  3. [52]
    The change in the Independent Assessor’s role upon making an application to the Tribunal is, in my view, significant.  The powers of the Independent Assessor to determine what course should be adopted in relation to alleged conduct are powers exercised by the Independent Assessor in her role as investigator.  Once the Independent Assessor decides to apply to the Tribunal for a hearing, the Independent Assessor is no longer the investigator, but rather a party to the hearing.  Having become a party to the hearing there is, in my view, no evident legislative intention that the Independent Assessor may once again adopt the role of investigator and revisit the decision to apply to the Tribunal.  This conclusion is supported by the detailed provisions which apply to the making of an application to the Tribunal, which include the Independent Assessor stating why she is reasonably satisfied the councillor engaged in misconduct and information about the facts and circumstances forming the basis for her reasonable satisfaction.
  4. [53]
    Section 150AL provides that the Tribunal must conduct a hearing about the application.  Section 150AQ(1) provides that after conducting the hearing, the Tribunal must decide whether or not the councillor has engaged relevantly in the alleged misconduct.  My view that the LG Act displaces the operation of s 24AA is not founded on the mandatory language of ss 150AL and 150AQ.  The applicant referred to the decision of the New South Wales Court of Appeal in Schipp v Herfords Pty Ltd,[84] where Samuels JA observed:

“Mr Handley, as I have indicated, disclaimed the submission that, before every statutory tribunal, there was a vested right in a claimant to withdraw his application before any decision passed.  He did refer us, however, to a case R v Hampstead & St Pancras Rent Tribunal; ex parte Goodman, which does provide some support for the proposition.  In that case a tenant applied to a rent tribunal to fix the standard rent of a dwelling house.  After the application had been filed, but before the proceedings came on for hearing, the tenant and the landlord came to an agreement about the rent.  They jointly informed the tribunal that they had done so.  The Tribunal took the view that, the application having been filed, the matter must proceed to hearing and determination.  The Court, however, was of the opinion that ‘… if the parties choose by consent to withdraw an application, the tribunal are not under any duty to, and, indeed, cannot, proceed with the hearing; …’.  The application, therefore, might be withdrawn up to any time before the tribunal gave their decision.  However, it is true, as Mr Handley frankly conceded, that the decision was affected by the statutory provision there in question, and by the fact that it was a case where the parties having settled their dispute, jointly approached the Court to withdraw the application made by one of them.”[85]

  1. [54]
    Relying on the observations of Samuels JA, the applicant submits that no obligation exists upon the Tribunal to conduct a hearing until an application is filed.  While an application is current, the mandatory language of the LG Act simply states the obligation on the Tribunal to exercise its statutory jurisdiction.  Once an application is withdrawn (revoked or rescinded), there is no current application before the Tribunal and the mandatory language no longer has anything on which to operate.  It is as if the application had not been filed.[86]  The Independent Assessor further submits that this is consistent with the role of prosecutors in criminal proceedings, including the discretion to offer no evidence or to enter a nolle prosequi. 
  2. [55]
    I do not accept these submissions.  Under s 563(1) of the Criminal Code, which deals with nolle prosequi, a Crown Law Officer may inform any court, by writing under the officer’s hand, that the Crown will not further proceed upon any indictment, or in relation to any charge contained in any indictment, then pending in the court.  The relevant prosecutor informs the Court of the Crown’s intention not to proceed further with the indictment.  This may be contrasted with the Independent Assessor seeking to unilaterally revoke the application, but not doing so before the Tribunal, in circumstances where the Tribunal is seized of the matter.  This is in circumstances where the Independent Assessor, in deciding to apply to the Tribunal, was reasonably satisfied that the respondent’s conduct was misconduct.
  3. [56]
    Further, the application to the Tribunal involves more than merely deciding rights inter partes.  Chapter 5A, which establishes the Tribunal, seeks to achieve one of the purposes of the Act, which is to provide for a system of local government in Queensland that is accountable, effective, efficient and sustainable.  This is sought to be achieved by Parliament under s 4 requiring anyone who is performing a responsibility under the LG Act to do so in accordance with local government principles, including ethical and legal behaviour of councillors.  It is the Tribunal which is tasked with conducting a hearing once an application is made.  As identified in [15] above, the hearing must be conducted in the way set out in Chapter 7, Part 1.[87]  Section 213(1)(b), which falls within Chapter 7, requires the Tribunal to “act as quickly and informally as is consistent with a fair and proper consideration of the issues raised in the hearing”.  Section 213(2) provides various examples which include disregarding the rules of evidence or adjourning a hearing.  These procedures are, in my view, sufficiently broad to permit the Tribunal to consider an application by the Independent Assessor to withdraw an application.  There may be many and varied circumstances in which it is appropriate for the Independent Assessor to seek to have an application withdrawn.  These may include, for example, where a complaint which has been investigated by the Independent Assessor and the subject of an application to the Tribunal, is subsequently shown to be false.  In such circumstances, the Independent Assessor, as a party to the hearing who carries the onus of proof, may either apply to the Tribunal to have the application withdrawn or seek a finding from the Tribunal that the councillor has not engaged in misconduct.  The Tribunal is required, under s 150AS(2), to give a notice of such a decision to the Independent Assessor, the councillor, the local government and a summary of the decision, including the reasons for the decision, to the department’s chief executive for publication on the department’s website.  This is to be contrasted with a unilateral decision of the Independent Assessor to revoke a decision, made in her role as investigator, to apply to the Tribunal.
  4. [57]
    On the above analysis, no error has been demonstrated by the Independent Assessor in the Tribunal’s proposed conduct of hearing and determining the application.

Disposition

  1. The application for a statutory order of review and for review filed 13 May 2020 is dismissed.
  1. There be no order as to costs.

Footnotes

[1]Local Government Act 2009 (Qld) (“LG Act”) ss 150CT, 150CU.

[2]LG Act ss 150AL, 150DK, 150DL.

[3]First Respondent’s Outline of Submissions, para 4; Affidavit of Jennifer Elizabeth Stanfield affirmed 23 June 2020, Exhibit 3, page 5.

[4]First Respondent’s Outline of Submissions, para 4; Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibit 1, page 5.

[5]First Respondent’s Outline of Submissions, para 5.

[6]First Respondent’s Outline of Submissions, para 6.

[7]First Respondent’s Outline of Submissions, para 7.

[8]First Respondent’s Outline of Submissions, para 8.

[9]First Respondent’s Outline of Submissions, para 9.

[10]First Respondent’s Outline of Submissions, para 10.

[11]First Respondent’s Outline of Submissions, para 11.

[12]Submissions of the Applicant, para 19; First Respondent’s Outline of Submissions, para 12; Affidavit of Jennifer Elizabeth Stanfield affirmed 23 June 2020, Exhibit 2.

[13]Submissions of the Applicant, para 20; First Respondent’s Outline of Submissions, para 13.

[14]Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibit 2.

[15]Submissions of the Applicant, para 21.

[16]Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibit 3.

[17]Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibits 4, 5.

[18]Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibit 6.

[19]Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibit 7.

[20]Submissions of the Applicant, para 22; Affidavit of Sharon Shenna Singh affirmed 12 May 2020, Exhibit 10.

[21]LG Act s 150B.

[22]LG Act s 150CT.

[23]LG Act s 150DG.

[24]LG Act s 150DK.

[25]LG Act ss 150P, 150R, 150S, 150T, 150U.

[26]LG Act ss 150AI, 150AJ(1).

[27]LG Act s 150AP.

[28]LG Act s 150AN.

[29]LG Act s 150AO.

[30]LG Act s 150AP(4).

[31]LG Act s 150AQ.

[32]LG Act s 150AR.

[33]LG Act s 150AS.

[34]LG Act s 150AT.

[35]Acts Interpretation Act 1954 (Qld) (“AIA”) sch 1.

[36]AIA s 4.

[37]Submissions of the Applicant, para 23.

[38]Submissions of the Applicant, para 24.

[39]Submissions of the Applicant, paras 26-28; Application for a Statutory Order of Review and for Review filed 13 May 2020.

[40]Submissions of the Applicant, para 35.

[41]Submissions of the Applicant, para 34.

[42]Submissions of the Applicant, paras 35-36.

[43]Submissions of the Applicant, paras 37-38.

[44]Submissions of the Applicant, para 39.

[45]Submissions of the Applicant, para 40.

[46]Submissions of the Applicant, para 41.

[47]Submissions of the Applicant, para 43.

[48]First Respondent’s Outline of Submissions, para 3.

[49]First Respondent’s Outline of Submissions, para 27.

[50]First Respondent’s Outline of Submissions, para 37.

[51]First Respondent’s Outline of Submissions, para 37.

[52]LG Act s 150W(1)(c).

[53]LG Act s 150W(1)(b).

[54]First Respondent’s Outline of Submissions, para 38.

[55]First Respondent’s Outline of Submissions, para 47.

[56]First Respondent’s Outline of Submissions, para 43.

[57]First Respondent’s Outline of Submissions, para 42.

[58]LG Act s 150DLA.

[59]First Respondent’s Outline of Submissions, para 53.

[60]T 1-40 lines 9-15.

[61]Submissions in Reply of the Applicant, para 18.

[62]Submissions in Reply of the Applicant, paras 19 and 21.

[63]Submissions in Reply of the Applicant, para 22.

[64]Submissions in Reply of the Applicant, paras 24-26.

[65]Submissions in Reply of the Applicant, para 34.

[66](2001) 209 CLR 57.

[67](2001) 209 CLR 57 at 73-74, [56].

[68](1969) 117 CLR 651 at 658.

[69](2001) 209 CLR 57 at 74, [59].

[70][2008] QSC 305.

[71](1990) 21 FCR 193 at 211.

[72][2001] 2 Qd R 26, [40].

[73]Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26, [33].

[74]Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2008] QSC 305, [44].

[75]Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2008] QSC 305, [44].

[76][2004] 1 Qd R 282.

[77][2020] QSC 38.

[78][2020] QSC 38, [13].

[79][2020] QSC 38, [66].

[80][2020] QSC 38, [74].

[81][2020] QSC 38, [75].

[82]LG Act s 150B(2)(b).

[83]LG Act s 150B(2)(c)(ii).

[84][1975] 1 NSWLR 412, 421-422.

[85]See Boal Quay Wharfingers Ltd v King’s Lynn Conservancy Board [1971] 1 WLR 1558 at 1566 and 1569.

[86]Submissions of the Applicant, para 35.

[87]Section 150AP of the LG Act.

Close

Editorial Notes

  • Published Case Name:

    Independent Assessor v Councillor Conduct Tribunal & Anor

  • Shortened Case Name:

    Independent Assessor v Councillor Conduct Tribunal

  • MNC:

    [2020] QSC 316

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    16 Oct 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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