SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I agree that the application for leave to appeal should be dismissed for the reasons given by Fraser JA.

[2] FRASER JA: Mr Barton brought an application against the current and former Queensland Premier and Local Government Ministers in which he sought an order to “re initiate the Clifton Shire Council as established prior to 15th March 2007” and other, related orders.  On 6 November 2009 Douglas J made an order pursuant to s 48 of the Judicial Review Act 1991 (Qld) dismissing Mr Barton’s application on the grounds that there was no reasonable basis for the application and that it was an abuse of the process of the court.  Mr Barton seeks leave to appeal against that order pursuant to s 48(5) of that Act.

[3] The abolition of the Clifton Shire Council was effected under the Local Government Act 1993 (Qld) as it was amended by the Local Government Reform Implementation Act 2007 (Qld) (which I will call the “Reform Act”).  The Reform Act inserted Pt 1B, which provided for the “Implementation of whole of Queensland local government boundaries reform”.  Schedule 1A provided for “New local governments”, which included Toowoomba Regional Council.  The Local Government Act as so amended provided, in s 159YG, for the abolition of existing local government areas and the establishment of the new local government areas on the “changeover day”, namely, 15 March 2008: ss 159YE and 159ZJ(1).  Section 159YHA[1] provided that each merging local government whose local government area was totally abolished, “goes out of existence immediately the abolition of the local government area is complete.”  The Local Government Reform Implementation Regulation 2008 (Qld) and the Local Government Reform Implementation (Transferring Areas) Amendment Regulation (No 1) 2008 (Qld) provided that from the changeover day the new local governments were able to perform the functions and exercise the powers of each of its merging local governments.  One result of those statutory provisions was the amalgamation on 15 March 2008 of Clifton Shire Council with Cambooya, Crows Nest, Jondaryan, Millmerran, Pittsworth and Rosalie Shire Councils, and Toowoomba City Council, to form the Toowoomba Regional Council.

[4] Mr Barton was aggrieved by what he argued was his “disenfranchisement” in the process by which the result was achieved.  He advanced numerous arguments in support of his application for orders under the Judicial Review Act.  The primary judge held that the Court had no power to “re-initiate the Clifton Shire Council” or to grant the other relief sought by Mr Barton, because to do so would, “…fly in the face of a valid Act of the Queensland Parliament which cannot be said to be inconsistent with Commonwealth legislation or otherwise to be subject to attack… State Parliament has the power to legislate in respect of local Government… There is nothing in the Commonwealth Parliament’s powers to proscribe legislation of the nature contained in this Act, and nothing in the legislation amending the Commonwealth Electoral Act designed to give any effect to any plebiscite held under the powers provided by it that would interfere with the power of the State Parliament to amend its local Government legislation.”

[5] Mr Barton contended that the primary judge was affected by “personal political bias” because, Mr Barton alleged, his Honour had a “direct affiliation with the Australian Labour (sic) Party Queensland Branch”.  The suggested “affiliation” was not disclosed but Mr Barton alleged that his Honour put “political expediency over excepted (sic) judicial practice” and was not impartial.  There is not the slightest foundation for these serious allegations.  Mr Barton did not raise them before the primary judge.  Perusal of the record demonstrates that the primary judge familiarised himself with the material, carefully considered the applicant’s arguments, and rejected them because of what his Honour found to be their intrinsic lack of merit.  There is no ground for thinking that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”[2]  Mr Barton’s arguments that the judge was biased and otherwise failed properly to consider his application must be rejected.

[6] In my respectful opinion the primary judge was right to dismiss Mr Barton’s application for the reasons which his Honour gave.  Mr Barton’s arguments would in any case not justify the Court in making any of the claimed orders against these respondents.  Nevertheless, I will refer in a little more detail to those arguments which Mr Barton emphasised in this Court.

[7] Mr Barton argued that the process of abolition of the Clifton Shire Council introduced by the Reform Act contravened the procedure for alteration of local government boundaries in Ch 3, Pt 1 of the Local Government Act.  That procedure contemplated a number of steps, including a referendum of local government electors.  None of that occurred here.  That is irrelevant because s 159YC[3] of the Local Government Act provided that the relevant provisions were not subject to the operation of Ch 3, Pt 1.  Mr Barton argued that the primary judge made his decision in accordance with “Legislation not in force, until the 10th August 2007”.  That is so in the sense that the Reform Act took effect on 10 August 2007, but that is not to deny that s 159YC and the other new provisions were legally effective to abolish the Clifton Shire Council on 15 March 2008 despite the absence of any referendum or other steps under Ch 3, Pt 1.  Mr Barton also argued that the process of amalgamation sanctioned by the Reform Act was inconsistent with the statutory duties imposed upon local councillors by s 229 of the Local Government Act.  There was no such inconsistency since the content of those duties must be understood in the context of the provisions of the Local Government Act as it was amended by the Reform Act.

[8] Mr Barton argued that his application related to “a matter of disenfranchisement… which qualifies as a breach of the Constitution” and an “act of wilfully ignoring the right to vote and also of an expressed majority will of the people”; that there was “an abuse of power granted under the Constitution and the resultant disenfranchisement of constituents… an indictable offence”; that authorities established “the jurisdiction of this application as the federal court”; and that exhibits authorised him to act as a “Commonwealth Public Official.”  As to the last point, Mr Barton simply purported to appoint himself as a Commonwealth official.  His assertions of offences and the Federal Court’s jurisdiction were also irrelevant in this application.  As to the Commonwealth Constitution, it contains no provision which entrenches any system of local government.  State legislation is of course invalid to the extent that it is inconsistent with a valid law of the Commonwealth (Constitution, s 109), but Mr Barton did not identify any law of the Commonwealth which was inconsistent with the Reform Act. 

[9] Mr Barton referred to ss 106 and 107 of the Commonwealth Constitution.  Section 106 continued in existence the Constitution of each State, subject to the Commonwealth Constitution, “until altered in accordance with the Constitution of the State”.  Mr Barton argued that the primary judge erred in failing to acknowledge that the Reform Act was in violation of the Queensland Constitution.  However, as the primary judge correctly observed, the Queensland Parliament is empowered to make “laws for the peace welfare and good government” of the State as provided by s 8 of the Constitution of Queensland 2001 (Qld), s 2 of the Constitution Act 1867 (Qld) and in accordance with s 107 of the Commonwealth Constitution.  That legislative power undoubtedly comprehended legislation which amended existing State legislation concerning the system of local government.  That is so regardless whether the legislation adversely affected any interests and rights of Mr Barton and others in a similar position.[4]

[10] Section 70 of the Constitution of Queensland 2001 (Qld) provides that there must be a system of local government in Queensland consisting of a number of local governments.  There is.  Subsection 71(2) provides that an “Act, whenever made, may provide for the way in which a local government is constituted and the nature and extent of its functions and powers”.  The Reform Act did so.  Section 78 provides a procedure for ending the system of local government in Queensland.  The Reform Act did not end the system of local government in Queensland.  Accordingly, in Berado & Anor v State of Queensland & Anor [2007] QSC 214, Mullins J refused an application for an interim injunction to prevent the presentation for assent of the Bill for the Reform Act on the ground that it contravened s 78 of the Constitution of Queensland 2001 (Qld).  Mullins J was not persuaded that enactment of the Bill would end the system of local government in Queensland because it “leaves the fundamental system of local government in place.”  I agree.

[11] Mr Barton referred to the failure to take into account a plebiscite of electors from the Clifton Shire Council.  He referred to amendments to the Commonwealth Electoral Act 1918 (Cth) effected by the Commonwealth Electoral Amendment (Democratic Plebiscites) Act 2007 (Cth) which allowed that plebiscite to be conducted by the Australian Electoral Commission despite the purported proscription of any poll by s 159ZY of the Local Government Reform Implementation Act 2007 (Qld).  However s 159ZY was omitted from the Local Government Act by the Local Government Amendment Act 2007 (Qld).  It was not in force at the time of the Clifton Shire Council plebiscite.  The temporary existence of s 159ZY before the plebiscite affords no basis for challenging the validity and effect of the Reform Act.

[12] Mr Barton cited broad statements about human rights, referred to the Bill of Rights and Magna Carta, and advanced many other arguments.  It is not necessary here to rehearse the decisions in which similar reliance upon supposed inconsistency between State legislation and Magna Carta has been rejected.[5]  It is drawing far too long a bow to suggest that the re-arrangement of local government boundaries and the failure to follow a process under which the views of local government electors would have been taken into account in some way infringed those electors’ human rights or was contrary to the Bill of Rights or Magna Carta.  There is no rational connection between those matters and the validity of the Reform Act.  Mr Barton’s argument that there was a failure to follow UCPR is similarly devoid of merit.  Mr Barton did not apply for an adjournment of the respondents’ application to dismiss his originating application and he was allowed ample time to mount all of the arguments he wished to agitate.  Mr Barton’s argument that the primary judge erred in not ruling on all parts of Mr Barton’s claim and on all orders sought by him, or in failing to adjourn proceedings until “jurisdiction was established”, is similarly misconceived.  Mr Barton put other points but it is plain that there was no power available to the Court to “re initiate” the Clifton Shire Council or to grant any of the other relief sought by the applicant.

[13] Mr Barton’s application was misconceived.  The primary judge was correct to order its dismissal.  Leave to appeal should be refused because the proposed appeal lacks any reasonable prospect of success.

[14] The respondents applied for an order for costs.  (An application for assessment on the indemnity basis was not pressed).  The application for costs finds support in the absence of arguable merit in the application for leave to appeal but there are other considerations.  Mr Barton stated from the bar table that his net worth was only about $3,000, that his income was only a disability pension, and that he thought the appeal was in the public interest.  If the proposed appeal had arguable merit there might well have been a public interest in hearing it, but Mr Barton was wrong in thinking that it did have any merit.  However the respondents’ counsel properly accepted that the considerations advanced by Mr Barton were relevant to the exercise of the discretion as to costs under s 49 of the Judicial Review Act.  I would make no order as to costs in the circumstances.

Disposition and proposed orders

[15] I would order that the application for leave to appeal be dismissed and that there be no order as to costs.

[16] Mr Barton sent a further written submission to the registry on 22 April 2010, which was supplied to me after I had prepared the above reasons.  The Court did not give leave to make any further submission after the hearing and it would be inappropriate to decide the application with reference to it.  I will add, however, that it did not improve Mr Barton’s case.  He asserted a variety of alleged offences against various sections of the Local Government Act allegedly committed before enactment of the Reform Act, but those sections did not impose any duty the asserted contravention of which would constitute an offence by these respondents.  Nor did Mr Barton have any standing to charge such an offence.  Mr Barton built on that flawed hypothesis to challenge “the validity of applying [the Reform Act] in respect of its effect on” those sections.  This argument assumed that in enacting the Reform Act the legislature was influenced by non-compliance with the identified sections of the Local Government Act, but as the Privy Council advised in Hoani Te Heuheu Tukino v Aotea District Maori Land Board,[6] “[it] is not open to the court to go behind what has been enacted by the legislature, and to inquire how the enactment came to be made…”.  Mr Barton’s latest submission is simply another way of putting an impermissible challenge to the validity of constitutionally valid legislation.

[17] CHESTERMAN JA: I agree with the orders proposed by Fraser JA for the reasons given by his Honour.